THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


3*8 


A   SELECTION   OF   CASES 


ON 


THE    LAW    OF    SALES 


OP 


PERSONAL    PROPERTY. 


BY 

SAMUEL   WILLISTON, 

PROFESSOR    OF    LAW    IN    HARVARD    UNIVERSITY. 


CAMBRIDGE,   MASS.: 
THE   HARVARD   LAW  REVIEW    PUBLISHING    ASSOCIATION. 

1895. 


T 
IS95 


Copyright,  189%, 
By  Samuel  Williston. 


University  Press: 
John  Wilson  and  Son,  Cambridge,  U.S.A. 


PREFACE. 


The  general  plan  of  this  book  is  similar  to  that  of 
the  collections  of  cases  on  other  subjects  which  have 
"been  published  from  time  to  time  for  use  in  the  Harvard 
Law  School. 

In  order  to  save  space,  reports  of  arguments  of  counsel 
have  been  generally  omitted;  and  when  the  facts  of  a 
case  appear  with  sufficient  fulness  from  the  opinion  of 
the  court,  the  opinion  only  has  been  printed.  Such  other 
omissions  as  have  been  made  from  the  cases  reported  are 
indicated  by  notes. 

Special  acknowledgment  is  due  to  my  colleagues, 
Professor  C.  C.  Langdell  and  Professor  James  B.  Thayer. 
To  the  former,  for  his  kind  permission  to  use  the  material 
in  Langdell's  Cases  on  Sales,  of  which  I  have  freely 
availed  myself;  to  the  latter,  for  carefully  selected  refer- 
ences to  the  most  important  cases  on  the  law  of  Sales, 
and  for  much  valuable  advice. 

SAMUEL   WILLISTOX. 
Cambridge,  August,  1894. 


:iA4S> 


CONTENTS. 


Section    I. 
Section  II. 


CHAPTER   I. 

SUBJECT-MATTER   OF    SALE. 


At  Law 
In  Equity 


Page 

1 

10 


Section 

1. 

Section 

II. 

Section 

III. 

Section 

IV. 

Section 

V. 

Section   VI. 


CHAPTER   II. 
EXECUTORY  AND  EXECUTED   SALES. 

Unconditional  Sales  of  Specific  Goods  to  which 
nothing  remains  to  be  done 24 

Sales  of  Specific  Goods  to  which  something  re- 
mains to  be  done 32 

Sales  of  Specific  Goods  conditional  upon  paying 
or  securing  the  price 66 

Sale  of  Goods  not  specified 86 

specification  of  the  goods  by  subsequent  ap- 
propriation     12q 

Transfer  of  Property  by  Bills,  of  Lading  and 
Reservation  of  Jus  Disponendi  by  the  Vendor     200 


CHAPTER   III. 
STOPPAGE   IX   TRANSITU 


357 


CHAPTER    IV. 
FRAUD   AND   RELATED   MATTERS. 

Section      I.     Fraud  on  the  Seller 436 

Section    II.     How  far  Retention  of  Possession  by  the  Seller 

IS    FRAUDULENT )»,; 

Section  III.     How  far  Delivery  is  essential  to  the  Transfer 

of  Title ;,]  ] 

Section   IV.     Factors  and  Factors  Acts       531 


VI 


CONTENTS. 


CHAPTER  V. 
WARRANTY. 

Page 

Section      I.     Express  Warranty 606 

Section    II.     Implied  Warranty 624 

(a)  Warranty  of  Title 624 

(//)   Warranty  of  Quality 631 

Section  III.     Remedies  for  Breach  of  Warranty 671 


CHAPTER   VI. 


STATUTE   OF    FRAUDS. 


Section       I.     "Contract  for  the  Sale  of" 716 

Section      II.     "Goods,  Wakes,  and  Merchandises"    ....       734 
Section    III.     "  For  the  price  of  £10  or  upwards  "    .     .     .     .       759 

Section    IV.     "Shall  be  allowed  to  be  good" 763 

Section      V.     "  Except  the  Buyer  shall  accept  part  of  the 
Goods  so   sold,  and  actually  receive   the 

same" 766 

Section    VI.     "  Give  something  tn  earnest  to  bind  the  Bar- 
gain or  in  part  of  Payment" 858 

Section  VII.     "Or  that  some  Note  or  Memorandum  in  writ- 
ing OF  THE  SAID  BARGAIN  BE  MADE  AND  SIGNED 

by  the  Parties  to  be  charged  by  such  Con- 
tract, or  their  Agents  thereunto  lawfully 
authorized" 867 

APPENDIX. 
Sale  of  Goods  Act 1007 


TABLE    OF    CASES. 


Page 

Aldridge  v.  Johnson 

149 

Alexander  v.  Gardner 

130 

Amsinck  v.  American 

[nsurance 

Co.    763 

Anderson  v.  Morice 

1G5 

Andrew  v.  Babcock 

994  n. 

Andrews  v.  Durant 

182 

Anonymous, Y.  B.  11  Edw.  IV.  6. 

10  607  n. 

Y.  B.  17  Edw.  IV. 

1 

120 

Y.  B.  18  Edw.  IV. 

14 

87  n. 

Y.  B.  18  Edw.  IV. 

21.  1 

67  n 

Y.  B.  20  Hy.  VII. 

8.  18 

87  n. 

Y.  B.  21  Hy.  VII. 

(3.4 

66  n. 

Keilwey,  77,  pi.  25 

86 

Keilwey,  69,  pi.  2 

87  n. 

Artcher  v.  Zeh 

860 

Atlierton  v.  Newliall 

854 

Atkinson  v.  Bell 

127 

Austen  v.  Craven 

90 

Azemar  v.  Casella 

680 

B. 

Babcock  v.  Lawson 

444 

Bailey  v.  Sweeting 

911 

Baldey  v.  Parker 

759 

Barber  v.  Meyerstein 

243 

Barnard  v.  Campbell 

459 

v.  Kellogg 

649 

Becker  v.  Hallgarten 

420 

Beckwith  v.  Talbot 

970 

Bement  v.  Smith 

177 

Benedict  v.  Schaettle 

428  n. 

Bentall  o.  Burn 

779 

Berndtson  v.  Strang 

394 

Bethel!  v.  Clark 

413 

Bill  v.  Bament 

787 

Bird  v.  Munroe 

999 

Bishop  r.  Shillito 

66 

Blanchard  v.  Cooke 

22n 

Blenkinsop  v.  Clayton 

775 

Bodenhammer  v.  Newsom 

475 

Bohtlingk  v.  Inglis 

384 

Brigg  v.  Hilton 

700  n. 

Bristol  u.  Wilsmore 

436 

Brown  v.  Whipple 

97;l 

Brownfield  v.  Johnson 

120  n. 

Bryant  v.  Isburgh 

692 

Burghall  v.  Howard 

358 

Burnby  v.  Bollett 

669 

Bussey  v.  Barnett 

07 

Butterfield  v.  Burroug 

is 

607 

Buxton  v.  Bust 

939 

c. 


Page 

Calcutta   &c.   Navigation    Co.   v 

De 

Mattos 

28  n. 

Caldwell  v.  Ball 

206 

Campbell  v.  The  Mersey  Docks, 

&C.     157 

Carter  v.  Toussaint 

778 

Champion  v.  Plummer 

871 

Chandelor  v.  Lopus 

606 

Chaplin  v.  Rogers 

766 

Chase  v.  Denny 

20 

Clark  v.  Fey 

981  n. 

Clay  v.  Yates 

719 

Clayton  v.  Andrews 

716 

Coddington  v.  Goddard 

982 

Cole  v.  Northwestern  Bank 

547 

Collins  v.  Ralli 

586 

Commercial  Bank  v.  Hurt 

595 

v.  Lee 

595 

Commonwealth  v.  Fleming 

296 

Constantia,  The 

428  n. 

Cooke  v.  Millard 

733  n. 

Cookson  v.  Swire 

495 

Cuff  v.  Penn 

872 

Cuunnings  r.'Arnold 

977 

Candy  v.  Lindsay 

479 

Cunliffe  v.  Harrison 

141 

Cusack  v.  Robinson 

806 

D. 

D'Aquila  v.  Lambert 
Day  r.  Pool 
Dempsey  v.  Gardner 
Diem  v.  Koblitz 
Dodsley  v.  Varley 
DohertV  v.  Hill 
Dorsey  v.  Pike 
Douglas  v.  People's  Bank 
Dounce  v.  Dow 
Downer  v.  Thompson 
Dows  v.  Perrin 
Drexel  v.  Pease 
Drummond  i\  Van  Ingen 
Durrell  v.  Evans 
Dustan  i>.  McAndrew 


E. 

Farl  of  Bristol  ;•.  Wilsmore 
Edan  v.  Dudfield 
Edgerton  v.  Hodge 


358 
694 
515 
426 
783 
991 
845 
351 
665 
181 
311 

351  n. 
644 
914 

180  n. 


436 
784 
863 


V1U 


TABLE   OF   CASES. 


Page 
Edwards  v.  Harben  489 

Egerton  v.  Mathews  870 

Eichholz  v.  Bannister  628 

Elmore  v.  Stone  778 

Emery's  Sons  v.  Irving  Nat.  Bank  320 
English  v.  Spokane  Commission  Co.  715  n. 
Evans  v.  Marlett  200 

v.  Roberts  73-3 


F. 


Fairbank  Canning  Co.  v.  Metzger         701 
Falk,  Ex  parte  405 

Falke  v.  Fletcher  240 

Falls  of  Neuse  Mfg.  Co.  v.  Hendricks 

994  n. 
Farina  v.  Home  791 

Farmers'  &c.  Bank  v.  Logan  331 

First  Nat.  Bank  v.  Ege  348 

Fitz,  Ex  jinrte  477 

Font  v.  Marsh  107 

Forbes  v.  Boston  &  Lowell  Railroad     326 


Fortesque  v.  Crawford 
Fragano  v.  Long 
Frank  i;.  Ingalls 
Freeland  ».  Ritz 
Frostburg  Mining  Co. 

Glass  Co. 
Fuentes  v.  Montis 


G. 


994  n. 
125 

469  n. 

977  n. 
.New  England 

848 
541 


Gabarron  v.  Kreeft  259 

Garbutt  v.  Watson  718 

Gaylord  Manufacturing  Co.  <u.  Allen    697 
Gibson  v.  Holland  926 

Gillettw.  Hill  92 

Glyn   v.  The  East   and  West   India 

Dock  Co. 
Goddard  v.  Binney 
Godta  v.  Rose 

Golding,  Davis  &  Co.,  Ex  parte 
Goodwin  v.  Mass.  Loan  &  Trust  Co. 

472  n.,  582  n. 
Goom  v.  Aflalo  879 

Gould  v.  Bourgeois  630  n. 

Grafton  v.  Cummings  970  n. 

Grant  v.  Fletcher  878 

Grantham  v.  Hawley 
Green  v.  Armstrong  751 


274 


237 
401 


H. 

Hallgarten  v.  ( lldham 
Hanson  v.  Marsh 

r.  .Meyer 
Harkness  v.  Russell 
Barman  v.  Reeve 
Hatch  i',  Oil  Company 
Hawes  v.  Forster 

v.  Watson 
Hayes  v.  Jackson 
Hey  wood's  Case 


Heyworth  v.  Hutchinson 

rage 
678 

Hickman  v.  Haynes 

947 

Ilinde  v.  Whitehouse 

767 

Uirth  v.  Graham 

754 

Hoadly  v.  M'Laine 

885 

Hodges  v.  Rowing 

994  n. 

Holmes  v.  Evans 

995  n. 

v.  Tyson 

620 

Holroyd  v.  Marshall 

10 

Hull  r.  Hull 

5 

Humble  v.  Mitchell 

758 

Hunt  v.  Hecht 

798 

Hurd  v.  Bickford 

469 

Huschle  v.  Morris 

623  n. 

I. 


Installs  v.  Flerrick 


501 


765  n. 
894 
607 
161 
560 
890 
631 

995  n. 


517 
997 
32 
71 
761 
l«9 

887 

38 
998  n. 

87  n. 


Jackson  v.  Stanfield 

Jacob  v.  Kirk 

Jendwine  v.  Slade 

Jenner  v.  Smith 

Johnson  v.  Credit  Lyonnais  Co. 

v.  Hodgson 
Jones  v.  Just 

v.  Tye 

K. 

Kceler  v.  Goodwin  116 

Kellogg  Bridge  Co.  v.  Hamilton  655 

Kemp  v.  Falk  ^   405 

Kenner  v.  Harding  615  n.,  619  n. 

Kenworthy  v.  Schofield  877 

Key  v.  Cotes  worth  232 

Kibble  v.  Gough  810 

Kiel],  Tn  re  41  >5 

Kimberly  v.  Patchin  99 

Knights  v.  Widen  95 


Lane  v.  Chadwick  300 

Lanfear  v.  Sumner  511 

Langton  v.  Higgins  154 

Lavery  v.  Pursell  748  n. 

Lcask  v.  Scott  448 

Lee  v.  Butler  571 

v.  Griffin  722 

Lerned  v.  Wannemacher  987 

Lickbarrow  v.  Mason  359 

Lillywhite  v.  Devereux  789 

Lingham  v.  Eggleston  59 

Lotm  o.  Millar  953 
Louisville    Asphalt    Varnish    Co.    v. 

Lovick  976  n- 

Low  v.  lVw  2 

Lowe  V.  Harris  994  n. 

Lucas  v.  Dixon  81  7 

Lyon  r.  Bertram  683 


TABLE    OF   CASES. 


IX 


M. 

Page 

Maclean  v.  Dunn  881 

M<  ( 'ormick  v.  Kelly  012 

McKibbin  v.  Martin  503 

McNeal  u.  Brawn  105 

Maddison  v.  Alderson  764  n. 

Margetson  v.  Wright  010 

Marsh  v.  Hyde  852 

Marshall  v.  Green  744 

v.  Lynn  805 

Martindale  v.  Booth  492 

Martineau  v.  Kitohing  52 

Marvin  v.  Wallis  803 

Mead  v.  Parker  994  n. 

Meade  v.  Smith  523 

Mellon  v.  Davison  995  n. 

Mprritt  v.  Clason  959 
Mirabita  v.  Imperial  Ottoman  Bank     267 

Mixer  v.  Howarth  725 

Moakes  v.  Nicholson  242 

Mondel  v.  Steel  675 

Moody  v.  Brown  191 

Moors  c.  Kidder  340 

v.  Wyman  329 

Morley  v.  Attenborough  624 

Morrison  v.  Woodley  118 

Morton  v.  Tibbett  793 

Mueklow  v.  Mangles  121 

Murchie  v.  Cornell  662 


N. 

Newell  v.  Radford 

Newliall  v.  Central  Pac.  Railroad 

Nicholson  o.  Bower 

Noble  v.  Ward 


O. 


Ogg  v.  Shuter 
Ogle  v.  Atkinson 
Oliver  v.  Hunting 
Olyphant  v.  Baker 


P. 

Page  v.  Morgan 
Parker  v.  Baxter 

v.  Staniland 

v.  Wallis 
Parsons  v.  Loucks 
Parton  v.  Crofts 
Paterson  v .  Tash 
Paid  v.  Reed 
Pease  v.  Gloahec 
Peirce  v.  Corf 
Peters  v.  Elliott 
Pickering  v.  Busk 
Pope  v.  Allis 
Toulton  v.  Lattimore 
Power  v.  Barham 


937 
424 
805 
931 


263 

215 

955 

28 


813 
467 
734 
800 
731 
022 
531 
68 
440 
942 
304 
532 
689 
671 
608 


11. 


Randall  v.  Newson 
Raw  son,  Re 
Rodgers  v.  Jones 

v.  Phillips 
Rodliff  '•.  Dallinger 
Rod  well  r.  Phillips 
Rogers  v.  Woodruff 
Rohde  v.  Thwaites 
Rondeau  v.  Wyatt 
Rowley  v.  Bigelow 
Rugg  v.  Minett 


Page 
638 
477 
850 
820 
482 
743  n. 
621 
780 
717 
416 
35 


S. 


Sainsbury  v.  Matthews 

744 

Salmon  Falls  Mfg.  Co.  v.  Goddard 

Saltus  v.  Everett 

452 

Sanders  v.  McLean 

283  n. 

Sanger  v.  Waterbury 

64 

Saunderson  v.  Jackson 

868 

Schneider  v.  Norris 

875 

Scudder  v.  Worster 

111 

Sewell  v.  Burdick 

283 

Shaw  v.  Railroad  Co. 

315 

Shepherd  v.  Harrison 

253 

Sherwin  v.  Mudge 

58 

Shindler  v.  Houston 

824 

Sievewright  v.  Archibald 

899 

Simmons  v.  Swift 

41 

Simon  v.  Anglo-American  Tel. 

Co.     99  n. 

i'.  Metivier 

867 

Smith  v.  Edwards 

193 

v.  Hale 

693  n. 

v.  Surman 

739 

Snee  v.  Prescott 

200 

Southerne  v.  Howe 

607  n. 

Spalding  v.  Ruding 

392 

Spooner  v.  Cummings 

84 

State  v.  O'Neil 

293 

Stead  v.  Dawber 

892 

Stevens  v.  Wilson 

583 

Stoddard  v.  Ham 

485  n. 

Stone  v.  Browning 

837,  841 

Street  v.  Blay 

673 

Studer  v.  Bleistein 

700  n. 

Swanwick  v.  Sothern 

45 

Tallman  v.  Franklin 
Tarling  r.  Baxter 
Taylor  v.  Smith 
Tempest  v.  Fitzgerald 
Thacher  v.  Moors 
Thayer  v.  Luce 
Thompson  v.  Alger 

v.  Gardiner 
Thornton  v.  Charles 

v.  Wynn 
Townsend  v.  Harsraves 
Trijip  r.  Armitage 
Turley  >•.  Bates 
Turner  v.  Trustees 


976  n. 

25 

819 

776 

574 

976  n. 

858  n. 
951 
897 

687  n. 

764  n. 

134 

47 

228 


TABLE   OF    CASES. 


Tuthill  v.  Skidmore 
Twyne's  Case 


U. 


Underwood  v.  Wolf 


V. 

Vandenbergh  v.  Spooner 
Van  Duzor  v.  Allen 
Vincent  v.  Germond 


w. 

Wait  v.  Baker 
Walker  v.  Nussey 
Walley  v.  Montgomery 
Ward  v.  Taylor 
Warner  v.  Martin 
Westzinthus,  In  re 
White  v.  Garden 
Whitehouse  v.  Frost 


Page 
435  n. 

486 


708 


936 
473 
822 


224 
858 
213 
302 
604  n. 
S88 
438 
87 


Whitmarsh  v.  Walker 
Whitney  v.  Heywood 
Wijjton  v.  Bowley 
Wilkins  v.  Bromhead 
Wilkinson  v.  King 
Wilmshurst  v.  Bowker 
Wilstack  v.  Heyd 
Wiseman  v.  Vandeputt 
Withers  v.  Greene 
Wolcott  v.  Mount 
Wood  j;.  Bell 
Woods  v.  Russell 
Wright  v.  Dannah 


Young  v.  Matthews 


Page 
749 

630  n. 
308 
139 
532 
218 

976  n. 
357 

687  n. 
615 
144 
122 
872 


160 


Zabriskie  v.  Central  Vermont  Rail- 
road Co.  705 


CASES    ON    SALES. 


CHAPTER    I. 
SUBJECT  MATTER  OF   SALE. 


SECTION    I. 

At  Law. 


GRANTHAM  v.   HAWLEY. 
In  the  Common  Pleas,  Trinity  Term,  1616. 

[Reported  in  Hobarl,  132.] 

Robert  Grantham  brought  an  action  of  debt  upon  an  obligation  of 
£40  against  Edward  Hawley,  the  condition  whereof  was  that  if  a  cer- 
tain crop  of  corn  growing  upon  a  certain  piece  of  ground,  late  in  the 
occupation  of  Richard  Sankee,  did  of  right  belong  to  the  plaintiff,  then 
the  defendant  should  pay  him  for  it  £20.  Now  the  case  upon  plead- 
ing and  demurrer  fell  out  thus  :  That  one  Sutton  was  seised  of  the 
land,  and  30  Eliz.  in  April  made  a  lease  of  it  to  Richard  Sankee  for 
twenty-one  years  by  indenture,  and  did  thereby  covenant,  grant  to  and 
with  Sankee,  his  executors  and  assigns,  that  it  shall  be  lawful  for  him 
to  take,  and  carry  away  to  his  own  use,  such  corn  as  should  be  grow- 
ing upon  the  ground  at  the  end  of  the  term.  Then  Sutton  conveyed 
the  reversion  to  the  plaintiff,  and  John  Sankee,  executor  to  Richard, 
having  sowed  the  corn,  and  that  being  growing  upon  the  ground  at  the 
end  of  the  term,  sold  it  to  the  defendant.  And  it  was  argued  by  Hut- 
ton  for  the  plaintiff  that  it  was  merely  contingent  whether  there  should 
be  corn  growing  upon  the  ground  at  the  end  of  the  term  or  not.  Also 
the  lessor  never  had  property  in  the  corn,  and  therefore  could  not  give 
nor  grant  it,  but  it  sounded  properly  in  covenant ;  for  the  right  of  the 
corn  standing  in  the  end  of  the  term  being  certain,  accrues  with  the 
land  to  the  lessor,  and  it  was  said  to  be  adjudged.  And  it  was  agreed 
by  the  court  that  if  A  seised  of  land  sow  it  with  corn,  and  then  convey 
it  away  to  B  for  life,  remainder  to  C  for  life,  and  then  B  die  before  the 
corn  reaped,  now  C  shall  have  it  and  not  the  executors  of  B  though 

l 


2  LOW  V.  PEW.  [chap.  I. 

his  estate  was  uncertain.  Note,  the  reason  of  industry  and  charge  in 
B  fails,  yet  judgment  in  this  case  was  given  against  the  plaintiff  ;  that 
is,  that  the  property  and  very  right  of  the  corn,  when  it  happened,  was 
passed  away  ;  for  it  was  both  a  covenant  and  a  grant,  and  therefore 
if  it  had  been  of  natural  fruits,  as  of  grass  or  hay,  which  run  merely 
with  the  laud,  the  like  grant  would  have  carried  them  in  property  after 
the  term.  Now,  though  corn  be  fructus  industrialis  so  that  he  that 
sows  it  may  seem  to  have  a  kind  of  property  ipso  facto  in  it  divided 
from  the  land,  and  therefore  the  executor  shall  have  it  and  not  the 
heirs  ;  yet  in  this  case  all  the  color  that  the  plaintiff  hath  to  it  is  by 
the  land  which  he  claims  from  the  lessor  which  gave  the  corn.  And 
though  the  lessor  had  it  not  actually  in  him,  nor  certain,  yet  he  had  it 
potentially  ;  for  the  land  is  the  mother  and  root  of  all  fruits.  There- 
fore he  that  hath  it  may  grant  all  fruits  that  may  arise  upon  it  after, 
and  the  property  shall  pass  as  soon  as  the  fruits  are  extant,  as  21 
Hen.  6.  A  parson  may  grant  all  the  tithewool  that  he  shall  have  in 
such  a  year,  yet  perhaps  he  shall  have  none  ;  but  a  man  cannot  grant 
all  the  wool  that  shall  grow  upon  his  sheep  that  he  shall  buy  hereafter ; 
for  there  he  hath  it  neither  actually  nor  potentially.  And  though  the 
Avords  are  here  not  by  words  of  gift  of  the  corn,  but  that  it  shall  be 
lawful  for  him  to  take  it  to  his  own  use,  it  is  as  good  to  transfer  the 
property,  for  the  intent  and  common  use  of  such  words,  as  a  lease  with- 
out impeachment  of  waste,  for  the  like  reason,  and  not  ex  vi  termini, 
rrives  the  trees. 


LOW  v.   PEW. 

Supreme  Judicial  Court  of  Massachusetts,  November  Term,  1871. 

{Reported  in  108  Massachusetts,  347.] 

Replevin  by  the  firm  of  Alfred  Low  &  Company  of  a  lot  of  flitched 
halibut  from  the  assignees  in  bankruptcy  of  the  firm  of  John  Low  & 
Son,  all  of  Gloucester.  Writ  dated  August  24,  1869.  The  parties 
stated   Ihc   following  case  for  the  judgment  of  the  court:  — 

On  April  17,  1869,  as  the  schooner  "Florence  Reed,"  owned  by 
John  Low  &  Son.  was  about  to  sail  from  Gloucester  on  a  fishing 
voyage,  that  firm  received  81,500  from  the  plaintiffs,  and  signed 
and  gave  the   plaintiffs  the   following   writing:  — 

"We,  John  Low  &  Sun,  hereby  sell,  assign,  and  set  over  unto 
Alfred  Low  &  Company  all  the  halibut  that  may  be  caught  by  the 
master  and  crew  of  the  schooner  "  Florence  Heed,"  on  the  voyage 
upon  which  she  is  about  to  proceed  from  the  port  of  Gloucester  to  the 
Grand  Banks,  at  the  rate  of  five  rents  and  a  quarter  per  pound  for 
flitched  halibut,  to  he  delivered  to  said  Alfred  Low  &  Company  as 
soon  as  said  schooner  arrives  at  said  port  of  Gloucester  at  their  wharf. 


SECT.  I.]  LOW   V.    PEW.  * 

And  we,  the  said  John  Low  &  Son,  hereby  acknowledge  the  receipt  of 
$1,500  in  part  payment  for  the  halibut  that  may  be  caught  by  the 
master  and  crew  of  said  schooner  on  said  voyage." 

In  July,  1869,  proceedings  in  bankruptcy  were  begun  against  John 
Low  &  Son  in  the  district  court  of  the  United  States  for  this  district, 
in  which  they  were  adjudged  bankrupts  on  August  6,  and  on  August 
20  these  defendants  were  appointed  the  assignees  in  bankruptcy,  and 
the  deed  of  assignment  was  executed  to  them.  On  Saturday,  August 
14,  the  "Florence  Reed"  arrived  at  the  port  of  Gloucester  on  her 
home  voyage,  and  was  hauled  to  the  plaintiffs"  wharf;  and  on  the 
morning  of  Monday,  August  16,  the  United  States  marshal  took 
possession  of  the  vessel  and  cargo  under  a  warrant  issued  to  him 
on  August  6  in  the  proceedings  in  bankruptcy,  and  transferred  his 
possession  to  the  defendants  upon  their  appointment. 

The  catch  of  the  schooner  consisted  of  about  40.000  pounds  of  hali- 
but, and  of  some  codfish.  The  plaintiffs  demanded  the  halibut  of  the 
defendants,  and  offered  at  the  same  time  to  pay  the  price  of  it  at  the 
rate  of  five  and  a  quarter  cents  per  pound,  less  the  $1,500  already  paid. 
The  defendants  refused  the  demand  ;  and  the  plaintiffs  then  replevied 
such  a  quantity  of  the  halibut  as  represented  the  amount  of  §1,500  at 
that  rate  per  pound,  and  offered  to  receive  the  rest  of  the  halibut  and 
pay  for  it  at  the  same  rate,  but  the  defendants  refused  to  acknowledge 
any  right  whatever  of  the  plaintiffs  in  or  to  the  fish. 

If  on  these  facts  the  plaintiffs  were  entitled  to  recover,  they  were  to 
have  judgment  for  nominal  damages;  but  if  otherwise,  the  defendants 
were  to  have  judgment  for  a  return,  with  damages  equal  to  interest 
at  the  annual  rate  of  six  per  cent  on  the  appraised  value  of  the  fish 
rep'evied. 

C.  P.  Thompson,  for  the  plaintiffs. 
W.  G.  Endicott,  for  the  defendants. 

Morton,  J.  By  the  decree  adjudging  John  Low  &  Son  bankrupts, 
all  their  property,  except  such  as  is  exempted  by  the  bankrupt  law, 
was  brought  within  the  custody  of  the  law,  and  by  the  subsequent 
assignment  passed  to  their  assignees.  Williams  v.  Merritt,  103  Mass. 
184.  The  firm  could  not  by  a  subsequent  sale  and  delivery  transfer  any 
of  such  property  to  the  plaintiffs.  The  schooner  which  contained  the 
halibut  in  suit  arrived  in  Gloucester  August  II.  1869,  which  was  after 
the  decree  of  bankruptcy.  If  there  had  been  then  a  sale  and  delivery 
to  the  plaintiffs  of  the  property  replevied,  it  would  been  invalid.  The 
plaintiffs  therefore  show  no  title  to  the  halibut  replevied,  unless  the 
effect  of  the  contract  of  April  17.  1869,  was  to  vest  in  them  the  prop- 
erty in  the  halibut  before  the  bankruptcy.  It  seems  to  us  clear,  as 
claimed  by  both  parties,  that  this  was  a  contract  of  sale,  and  not  a 
mere  executory  agreement  to  sell  at  some  future  day.  The  plaintiffs 
cannot  maintain  their  suit  upon  any  other  construction,  because,  if  it 
is  an  executory  agreement  to  sell,  the  property  in  the  halibut  remained 
in  the  bankrupts,  and,  there  being  no  delivery  before  tin'  bankruptcy, 


4  LOW  V.  PEW.  [chap.  I. 

passed  to  the  assignees.  The  question  in  the  case  therefore  is,  whether 
a  sale  of  halibut  afterwards  to  be  caught  is  valid,  so  as  to  pass  to  the 
purchaser  the  property  in  them  when  caught. 

It  is  an  elementary  principle  of  the  law  of  sales  that  a  man  cannot 
grant  personal  property  in  which  he  has  no  interest  or  title.  To  be 
able  to  sell  property,  he  must  have  a  vested  right  in  it  at  the  time  of 
the  sale.  Thus  it  has  been  held  that  a  mortgage  of  goods  which  the 
mortgagor  does  not  own  at  the  time  the  mortgage  is  made,  though  he 
afterwards  acquires  them,  is  void.  Jones  v.  Richardson,  10  Met.  481. 
The  same  principle  is  applicable  to  all  sales  of  personal  property. 
Rice  v.  Stone,  1  Allen,  566,  and  cases  cited ;  Head  v.  Goodwin,  37 
Me.   181. 

It  is  equally  well  settled  that  it  is  sufficient  if  the  seller  has  a  poten- 
tial interest  in  the  thing  sold.  But  a  mere  possibility  or  expectancy  of 
acquiring  property,  not  coupled  with  any  interest,  does  not  constitute 
a  potential  interest  in  it,  within  the  meaning  of  this  rule.  The  seller 
must  have  a  present  interest  in  the  property,  of  which  the  thing  sold  is 
the  product,  growth,  or  increase.  Having  such  interest,  the  right  to 
the  thing  sold,  when  it  shall  come  into  existence,  is  a  present  vested 
right,  and  the. sale  of  it  is  valid.  Thus  a  man  may  sell  the  wool  to 
grow  upon  his  own  sheep,  but  not  upon  the  sheep  of  another ;  or  the 
crops  to  grow  upon  his  own  land,  but  not  upon  laud  in  which  he 
has  no  interest.  2  Kent  Com.  (10th  ed.)  468  (641),  note  a;  Jones  v. 
Richardson,  10  Met.  481  ;  Bellows  v.  Wells,  36  Verm.  599  ;  Van  Hoozer 
v.  Cory,  34  Barb.  9  ;  Grantham  v.  Hawley,  Hob.  132. 

The  same  principles  have  been  applied  by  this  court  to  the  assign- 
ment of  future  wages  or  earnings.  In  Mulhall  v.  Quiun,  1  Gray,  105, 
an  assignment  of  future  wages,  there  being  no  contract  of  service,  was 
held  invalid.  In  Hartley  v.  Tapley,  2  Gray,  565,  it  was  held  that, 
if  a  person  is  under  a  contract  of  service,  he  may  assign  his  future 
earnings  growing  out  of  such  contract.  The  distinction  between  the 
cases  is  that  in  the  former  the  future  earnings  are  a  mere  possibility, 
coupled  with  no  interest,  while  in  the  latter  the  possibility  of  future 
earnings  is  coupled  with  an  interest,  and  the  right  to  them,  though 
contingent  and  liable  to  be  defeated,  is  a  vested  right. 

In  the  case  at  bar,  the  sellers,  at  the  time  of  the  sale,  had  no  inter- 
est in  the  thing  sold.  There  was  a  possibility  that  they  might  catch 
halibut;  but  it  was  a  mere  possibility  and  expectancy,  coupled  with  no 
interest.  We  are  of  opinion  that  they  had  no  actual  or  potential  pos- 
session of,  or  interest  in,  the  fish  ;  and  that  the  sale  to  the  plaintiffs 
was  void. 

The  plaintiffs  rely  upon  Gardner  v.  Hoeg,  18  Pick.  168,  and  Tripp  v. 
Brownell,  12  Cush.  376.  In  both  of  these  cases  it  was  held  that  the 
lay,  or  share  in  the  profits,  which  a  seaman  in  a  whaling  voyage  agreed 
to  receive  in  lieu  of  wages,  was  assignable.  The  assignment  in  each 
case  was,  not  of  any  part  of  the  oil  to  be  made,  but  of  the  debt  which 
under  tin'  shipping  articles  would  become  due  to  the  seaman  from  the 


SECT.  I.]  HULL  V.   HULL.  O 

owners  at  the  end  of  the  voyage.  The  court  treated  them  as  cases  of 
assignments  of  choses  in  action.  The  question  upon  which  the  cum'  at 
bar  turns  did  not  arise,  and  was  not  considered. 

Judgment  for  the  defendants. 


HULL   v.    HULL. 
Connecticut  Supreme  Court,  Juki:  Term,  1880. 

[Reported  in  48  Connecticut,  250.] 

Replevin  for  six  colts  ;  brought  to  the  Court  of  Common  Pleas  in 
New  Haven  County,  and  tried  before  Cowell,  J.,  who  found  the  fol- 
lowing facts  :  — 

The  plaintiff  is  the  sister  of  the  wife  of  Rev.  William  H.  H.  Murray. 
The  defendant  is  the  trustee  of  his  insolvent  estate. 

In  1868  or  1869  the  plaintiff  was  employed  by  Mr.  Murray  as  super- 
intendent, book-keeper,  and  cashier  of  his  stock  farm  at  Guilford  in 
this  State,  the  farm  consisting  of  about  three  hundred  acres,  with  three 
dwellings  and  large  and  commodious  barns  and  stables.  From  the 
commencement  of  such  service  down  to  the  institution  of  insolvency 
proceedings  against  him  in  the  summer  of  1879,  she  continued  in  his 
employment,  residing  upon  the  farm  constantly,  except  occasional 
visits  to  Boston  and  the  Adirondacks  with  Mr.  Murray's  family.  Dur- 
ing this  period  Mr.  Murray  was  a  settled  minister  in  Boston,  and 
resided  in  that  city,  spending  not  more  than  one  month  in  a  year  upon 
his  farm. 

From  the  commencement  of  the  plaintiff's  services  until  November 
12th,  1870,  she  received  no  compensation  except  her  board.  At  that 
date,  being  then  on  a  visit  to  Mr.  Murray's  family  at  Boston,  he.  on 
account  of  his  indebtedness  to  her,  sold  her  a  brood  mare  called 
"Nell,'1  which  he  then  owned  and  kept  in  Boston,  the  mare  having 
never  been  upon  his  Guilford  farm.  At  the  time  of  this  sale  he  exe- 
cuted and  delivered  to  her  a  bill  of  sale  of  the  mare,  and  at  the  same 
time,  to  induce  her  to  continue  in  his  employment  as  superintendent 
and  book-keeper  upon  his  Guilford  farm,  lie  agreed  with  her  that  she 
should  have  the  right  to  keep  the  mare  upon  his  farm  and  rear  whatever 
stock  she  chose  to  raise  from  the  mare,  he  paying  all  expenses  of  such 
keeping,  and  allowing  her  the  free  use  of  his  stallions;  and  that  the 
mare  and  her  progeny  should  be  her  compensation  for  her  services  as 
superintendent. 

On  November  18th,  1870,  the  mare  was  sent  by  Mr.  Murray  to  the 
Guilford  farm  with  two  other  horses,  a  stove,  and  other  furniture 
belonging  to  him,  all  billed  as  freight  to  him.  All  the  horses  were 
received  at  Guilford  and  placed  upon  the  farm.  The  plaintiff  had 
meanwhile  returned  from   Boston. 


6  HULL   V.    HULL.  [CHAP.  I. 

In  January,  1872,  the  plaintiff  being  again  in  Boston,  the  mare 
"  Nell"  being  unproductive,  Mr.  Murray,  being  then  further  indebted 
to  the  plaintiff  for  her  services,  sold  her  another  blooded  brood  mare 
named  w'  Flying  Belle,"  then  owned  by  him  in  Boston,  and  which  had 
never  been  upon  his  Guilford  farm,  under  a  similar  arrangement  with  that 
in  the  sale  of  the  mare  "  Nell,"  with  the  agreement  that  the  plaintiff 
should  thereafter  have  the  two  mares,  and  that  whatever  stock  she 
could  rear  from  them  upon  his  Guilford  farm  and  at  his  expense, 
should  be  her  compensation  for  services.  He  gave  her  at  the  same 
time  a  bill  of  sale  of  the  second  mare.  But  this  mare  was  not  sent  to 
the  Guilford  farm  until  June  12th,  1872,  when  it  was  forwarded  by  Mr. 
Murray  with  three  other  horses  and  a  buggy  consigned  to  him,  which 
were  received  and  put  upon  the  farm  as  in  the  former  case. 

At  the  time  these  mares  were  put  upon  the  Guilford  farm  the  average 
number  of  horses  kept  on  the  farm  by  Mr.  Murray  was  three  or  four, 
but  subsequently  a  much  larger  number  was  kept,  and  many  horses 
owned  by  other  parties  were  boarded  upon  the  farm.  The  mares  were 
worked  upon  the  farm  and  used  by  Mr.  Murray's  family,  including  the 
plaintiff,  in  the  same  way  with  the  horses  belonging  to  Mr.  Murray* 

The  plaintiff  has  raised  from  the  mare  "Nell"  four  colts,  one  of 
which  she  sold  when  four  years  old.  The  other  three  are  a  part  of 
those  described  in  the  replevin  writ.  The  plaintiff  has  had  five  colts 
from  the  mare  "  Flying  Belle,"  one  of  which  died,  one  she  sold,  and 
the  other  three  are  the  remainder  of  the  six  deecribed  in  the  replevin 
writ.  All  these  colts  have  been  kept  on  the  Murray  farm  or  on  land 
leased  by  Mr.  Murray  since  they  were  foaled,  under  the  supervision  of 
the  plaintiff,  and  fed  and  cared  for  by  his  grooms  in  the  same  manner 
as  the  colts  and  horses  owned  by  Mr.  Murray,  and  the  taxes  on  them 
and  their  colts  have  been  paid  by  Mr.  Murray.  The  amount  of  the 
taxes  on  the  horses  of  the  plaintiff  was  not  given  in  evidence,  but  the 
taxes  on  them  and  on  Mr.  Murray's  horses  were  generally  all  paid  by 
him  at  the  same  time. 

There  was  no  evidence  that  at  the  time  of  the  purchase  of  these 
mares  by  the  plaintiff  Mr.  Murray  was  indebted  to  any  one. 

The  plaintiff  is  an  unusually  active,  capable  woman,  and  at  the  time 
of  the  purchases  and  agreements  Mr.  Murray  intended  to  deal  liberally 
with  her,  believing  it  was  to  his  benefit  for  her  to  reside  upon  and 
manage  his  farm,  keeping  his  house  there  always  in  readiness  for  the 
reception  of  his  family  when  they  should  choose  to  visit  the  farm  ;  and 
to  her  benefit  to  accumulate  property  by  the  rearing  of  colts  pursuant 
to  the  agreement.  The  plaintiff  for  more  than  ten  years  of  faithful  and 
valuable  services  has  received  no  compensation  except  her  board  and 
these  two  mares  and  the  progeny  reared  from  them. 

The  mares  are  now  old  and  of  little  value,  and  have  been  so  em- 
ployed by  Mr.  Murray's  family  and  upon  the  labor  of  the  farm,  under 
her  supervision,  :is  to  have  more  than  reimbursed  him  for  all  taxes  paid 
by  him  on  her  account. 


SECT.  I.]  HULL   V.    HULL.  7 

Mr.  Murray,  about  the  commencement  of  1879,  moved  from  Boston 
to  Guilford,  but  spent  but  little  time  upon  the  farm,  being  engaged  in 
business  in  New  Haven.  About  the  middle  of  June,  1879,  he  left  the 
State,  and  has  never  since  exercised  any  control  or  supervision  over  his 
farm  or  personal  property  in  this  State. 

The  plaintiff  still  owns  and  keeps  the  mares,  and  no  one  else  has  ever 
claimed  them  or  either  of  them  since  her  purchase. 

On  the  first  day  of  August,  1879,  the  six  colts  were  attached  by  a 
creditor  of  Mr.  Murray,  with  nine  other  colts  belonging  to  him,  they 
being  all  together,  —  the  mares  not  being  attached,  as  they  were  away 
from  the  farm.  The  attaching  creditor  kept  the  colts  at  Guilford  for 
about  three  months,  and  then  delivered  them  to  the  defendant,  the 
trustee  in  insolvency  of  Mr.   Murray. 

No  attempt  was  made  by  the  plaintiff  to  maintain  her  title  to  the 
colts  by  suit  until  January  12th,  1880,  although  she  was  living  during 
the  time  at  Guilford  where  the  colts  were.  But  as  soou  as  she  became 
aware  of  the  attachment  of  them  she  forbade  the  officer  taking  them 
and  demanded  their  immediate  return  to  her. 

There  was  no  evidence  offered  as  to  the  financial  condition  of  Mr. 
Murray  other  than  the  facts  that  the  plaintiff's  horses  were  attached  as 
his,  and  that  other  horses  of  his  and  other  of  his  personal  property 
were  attached,  and  that  the  defendant  was  afterwards  appointed  trus- 
tee of  his  insolvent  estate. 

The  defendant  on  the  trial  offered  evidence  which  he  claimed  tended 
to  prove  that  the  plaintiff  was  never  the  owner  of  the  mares  or  colts, 
but  that  Mr.  Murray  claimed  to  own  them  imtil  about  the  time  of  the 
attachment.  To  rebut  this  claim  the  plaintiff  produced  the  book  known 
as  Murray's  Stock  Book,  which  had  always  been  kept  at  the  barn  office 
at  his  farm  in  Guilford,  and  offered  in  evidence  three  entries  therein 
made  by  Mr.  Murray  and  one  Bixby.  his  confidential  friend,  under  Mr. 
Murray's  direction,  in  1873  or  1874,  which  entries  described  the  mares, 
and  a  colt  of  one  of  them,  and  gave  the  age  of  each  of  them,  following 
each  of  the  descriptions  with  the  words,  "  The  property  of  Miss  Ida  E. 
Hull,  of  Guilford,  Connecticut."  The  defendant  objected  to  these 
entries  being  received  by  the  court  as  evidence  for  the  purposes  for 
which  they  were  offered.  But  the  court  overruled  the  objection  and 
received  the  evidence. 

Upon  the  foregoing  facts  the  defendant  claimed,  and  asked  the  court 
to  hold,  that  the  law  was  so  that  the  plaintiff  was  not  entitled  to  take 
the  property  from  the  defendant  as  such  trustee  ;  that  she  never  became 
the  bond  fide  owner  of  the  mares  and  colts  ;  that  there  was  never  any 
such  possession  on  her  part  as  would  entitle  her  to  hold  the  mares  or 
their  progeny  against  the  attaching  creditors  of  the  vendor  or  his  trus- 
tee in  insolvency  ;  and  that  she  was  guilty  of  such  laches  in  failing  to 
assert  her  claim  to  the  property,  both  before  and  after  the  attachment, 
that  she  was  estopped  from  now  claiming  it  from  the  trustee. 

But  the  court  overruled  all  of  these  claims  and  rendered  judgment 
for  the  plaintiff  to  recover  the  property  claimed. 


8  HULL   V.   HULL.  [CHAP.  I. 

The  defendant  filed  a  motion  in  error,  and  also  moved  for  a  new  trial 
for  error  in  the  admission  of  evidence. 

W.  K.  Townsend  and  J.  H.  WJiiting,  in  support  of  the  motion. 
H.  B.  Munson,  contra. 

Loomis,  J.  The  controversy  in  this  case  has  reference  to  the  owner- 
ship of  six  colts,  the  progeny  of  two  brood  mares,  which  the  plaintiff, 
some  ten  years  prior  to  this  suit,  purchased  in  Boston  of  the  Rev. 
William  H.  H.  Murray.  The  contract  of  sale  provided  that  the  plain- 
tiff might  take  the  mares  to  Murray's  farm  in  this  State,  of  which  she 
was  and  had  been  for  several  years  the  superintendent,  and  there  keep 
them  as  breeding-mares  ;  and  all  the  colts  thereafter  foaled  from  them, 
though  sired  by  Murray's  stallions,  were  to  be  the  exclusive  property 
of  the  plaintiff. 

No  attempt  has  been  made  by  Murray's  creditors  or  his  trustee  to 
deprive  the  plaintiff  of  the  mares  so  purchased,  and  they  are  now  in 
her  undisturbed  possession  ;  but  the  colts,  while  on  Murray's  farm  on 
the  1st  of  August,  1879,  were  attached  by  one  of  his  creditors,  who 
subsequently  released  the  property  to  the  defendant  as  trustee  in  insol- 
vency, who  had  the  property  in  his  possession  at  the  time  the  plaintiff 
brought  her  writ  of  replevin. 

The  sole  ground  upon  which  the  defendant  claims  to  hold  these  colts 
is,  that  there  was  such  a  retention  of  possession  by  Murray  after  the 
sale  as  to  render  the  transaction  constructively  fraudulent  as  against 
creditors. 

The  court  below  overruled  this  claim,  and  in  so  doing  we  think  com- 
mitted no  error. 

The  doctrine  as  to  retention  of  possession  after  a  sale  has  no  appli- 
cation to  the  facts  of  this  case.  A  vendor  cannot  retain  after  a  sale 
what  does  not  then  exist  nor  that  which  is  already  in  the  possession  of 
the  vendee.  This  proposition  would  seem  to  be  self-sustaining.  If, 
however,  it  needs  confirmation,  the  authorities  in  this  State  and  else- 
where abundantly  supply  it.  Lucas  v.  Birdsey,  41  Conn.  357  ;  Capron 
v.  Poller,  43  id.  389;  Springs.  Chipman,  6  Verm.  662.  In  Bellows 
v.  Wells,  36  Verm.  599,  it  was  held  that  a  lessee  might  convey  to  his 
lessor  all  the  crops  which  might  be  grown  on  the  leased  land  during  the 
term,  and  no  delivery  of  the  crops  after  they  were  harvested  was  neces- 
sary even  as  against  attaching  creditors,  and  that  the  doctrine  as  to 
retention  of  possession  alter  the  sale  did  not  apply  to  property  which 
at  the  time  of  the  sale  was  not  subject  to  attachment  and  had  no  real 
existence  as  property  at  all. 

The  case  at  bar  is  within  the  principle  of  the  above  authorities,  for 
it  is  very  clear  that  the  title  to  the  property  in  question  when  it  first 
came  into  existence  was  in  the  plaintiff. 

In  reaching  this  conclusion  it  is  not  necessary  to  hold  that  the  mares 

beci the  absolute  property  of  the  plaintiff  under  Massachusetts  Law 

withoul  a  more  substantial   and  visible  change  of  possession,  or  that 
under  our  law,  the  title  to  the  mares  being  in  the  plaintiff  clearly  as 


SECT.  I.]  HULL   V.    HULL.  9 

between  the  parties,  the  rule  imported  from  the  civil  law,  partus  sequi- 
tur  ventrem,  applies. 

We  waive  the  consideration  of  these  questions.  It  will  suffice  that, 
by  the  express  terms  of  the  contract,  the  plaintiff  was  to  have  as  her 
own  all  the  colts  that  might  be  born  from  these  mares.  That  the  law- 
will  sanction  such  a  contract  is  very  clear. 

It  is  true,  as  remarked  in  Perkins  on  Conveyances  (tit.  Grant,  §  65), 

that  "it  is  a  common  learning  in  the  law  that  a  man  cannot  grant  or 

charge  that  which  he  has  not;"  yet  it  is  equally  well  settled  that  a 

'future  possibility  arising  out  of,  or  dependent  upon,  some  present  right, 

property,  or  interest,  may  be  the  subject  of  a  valid  present  sale. 

The  distinction  is  illustrated  in  Hobart,  132,  as  follows  :  '.<  The  grant 
of  all  the  tithe  wool  of  a  certain  year  is  good  in  its  creation,  though  it 
may  happen  that  there  be  no  tithe  wool  in  that  year ;  but  the  grant  of 
the\vool  which  shall  grow  upon  such  sheep  as  the  grantor  may  after- 
wards purchase,  is  void." 

It  is  well  settled  that  a  valid  sale  may  be  made  of  the  wine  a  vine- 
yard is  expected  to  produce,  the  grain  that  a  field  is  expected  to  grow, 
the  milk  that  a  cow  may  yield,  or  the  future  young  born  of  an  animal. 
1  Parsons  on  Contracts  (5th  ed.),  page  523,  note  Jc,  and  cases  there 
cited ;  Hilliard  on  Sales,  §  18  ;  Story  on  Sales,  §  186.  In  Fonville  v. 
Casey,  1  Murphy  (N.  C),  389,  it  was  held  that  an  agreement  for  a 
valuable  consideration  to  deliver  to  the  plaintiff  the  first  female  colt 
which  a  certain  mare  owned  by  the  defendant  might  produce,  vests  a 
property  in  the  colt  in  the  plaintiff,  upon  the  principle  that  there  may 
be  a  valid  sale  where  the  title  is  not  actually  in  the  grantor,  if  it  is 
in  him  potentially,  as  being  a  thing  accessory  to  something  which  he 
actually  has.  And  in  McCarty  v.  Blevins,  5  Yerg.  195,  it  was  held 
that  where  A  agrees  with  B  that  the  foal  of  A's  mare  shall  belong  to  C, 
a  good  title  vests  in  the  latter  when  parturition  from  the  mother  takes 
place,  though  A  immediately  after  the  colt  was  born  sold  and  delivered 
it  to  D. 

Before  resting  the  discussion  as  to  the  plaintiff's  title  we  ought,  per- 
haps,'briefly  to  allude  to  a  claim  made  by  the  defendant,  both  in  the 
court  below  and  in  this  court,  to  the  effect  that  if  the  plaintiff's  title  be 
conceded  she  is  estopped  from  asserting  her  claim.  This  doctrine  of 
estoppel,  as  all  triers  must  have  observed,  is  often  strangely  misap- 
plied. And  it  is  surely  so  in  this  instance.  The  case  fails  to  show 
any  act  or  omission  on  the  part  of  the  plaintiff  incousistent  with  the 
claims  she  now  makes,  or  that  the  creditors  of  Murray  or  the  defendant 
as  representing  them  were  ever  misled  to  their  injury  by  any  act  or 
negligence  on  her  part.  On  the  contrary,  the  estoppel  is  asserted  in 
the  face  of  the  explicit  finding,  that  "  as  soon  as  the  plaintiff  became 
aware  of  the  attachment  of  her  horses  she  forbade  the  officer  taking  the 
same,  and  demanded  their  immediate  return  to  her." 

The  only  fact  which  is  suggested  as  furnishing  the  basis  for  the  al- 
leged estoppel  is,  that  from  the  first  of  August,  187'J,  to  the  12th  of 


10  HOLROYD   V.    MARSHALL.  [CHAP.  I. 

January  next  following,  "  no  attempt  was  made  by  the  plaintiff  to 
maintain  her  title  by  suit,  although  she  was  living  during  the  time  at 
Guilford  where  said  colts  were.''"  But  who  ever  heard  of  an  estoppel  in 
an  action  at  law  predicated  solely  on  neglect  to  bring  a  suit  for  the 
period  of  five  months?  To  recognize  such  a  thing  for  any  period  short 
of  the  statute  of  limitations  would  practically  modify  the  statute  and 
create  a  new  limitation.  Furthermore,  in  what  respect  have  the  de- 
fendant, and  those  he  represents  been  misled  to  their  injury  by  this 
fact?  The  plaintiff  never  induced  the  taking  or  withholding  of  her 
property.  And  can  a  tort-feasor  or  the  wrongful  possessor  of  another's 
property  object  to  the  delay  in  suing  him  for  his  wrong,  and  claim,  as 
in  this  case,  an  estoppel  on  the  ground  that  his  own  wrongful  posses- 
sion proved  a  very  expensive  one  to  him,  amounting  even  to  more  than 
the  value  of  the  property  ?  He  might  have  stopped  the  expense  at  any 
time  by  simply  giving  to  the  plaintiff  what  belonged  to  her. 

The  single  question  of  evidence  which  the  record  presents  we  do  not 
deem  it  necessary  particularly  to  discuss.  It  will  suffice  to  remark  that 
if  the  defendant's  testimony  was  admissible  to  show  that  Murray,  after 
the  sale  to  the  plaintiff  (and  so  far  as  appears  in  her  absence),  claimed 
to  own  the  mares  and  colts,  it  was  a  complete  and  satisfactory  reply 
for  the  plaintiff  in  rebuttal  to  show  that  Murray's  own  entries  (presum- 
ably a  part  of  the  res  gestae)  in  the  appropriate  books  kept  by  him 
showed  the  fact  to  be  otherwise,  and  in  accordance  with  the  plaintiff's 
claims. 

At  any  rate  it  is  very  clear  that  no  injustice  was  done  by  this  ruling 
to  furnish  any  ground  for  a  new  trial. 

There  was  no  error  in  the  judgment  complained  of,  and  a  new  trial  is 
not  advised. 

In  this  opinion  the  other  judges  concurred. 


SECTION   II. 

In  Equity. 

HOLROYD   v.   MARSHALL. 

In  the  House  of  Lords,  June  14,  17,  18,  18(51,  July  25,  1862. 

[Reported  in  10  House  of  Lords  Canes,  191.] 

James  Taylor  carried  on  the  business  of  a  damask  manufacturer  at 
Hayes  Mill,  Ovenden,  near  Halifax,  in  the  county  of  York,  in  1858 
he  became  embarrassed,  a  sale  of  his  effects  by  auction  took  place,  and 
the  Holroyds,  who  had  previously  employed  him  in  the  way  of  his  busi- 
ness, purchased  nil  the  machinery  at  the  mill.  The  machinery  was  not 
removed,  and  it  was  agreed  that  Taylor  should  buy  it  back  for  £5,000. 


SECT.  II.]  HOLBOYD   V.    MARSHALL.  11 

An  indenture  dated  the  20th  September,  1858,  was  executed,  to  which 
A.  P.  and  VV.  Holroyd  were  parties  of  the  first  part,  James  Taylor  of 
the  second  part,  and  Isaac  Brunt  of  the  third  part.  This  indenture 
declared  the  "  machinery,  implements,  :uid  things  specified  in  the 
schedule  hereunder  written  and  lixed  in  the  said  mill,"  to  belong  to 
the  liolroyds  ;  that  Taylor  had  agreed  to  purchase  the  same  for  £5,000, 
but  could  not  then  [jay  the  purchase-money,  wherefore  it  was  agreed, 
etc..  that  "  all  the  machinery,  implements,  and  things  specified  in  the 
schedule  (hereinafter  designated  '  the  said  premises')"  were  assigned 
to  Brunt,  in  trust  for  Taylor,  until  a  certain  demand  for  payment  should 
be  made  upon  him,  and  then,  in  case  he  should  pay  to  the  liolroyds  :i 
sum  of  £5,000,  with  interest,  for  him  absolutely.  If  default  in  pay- 
ment was  made,  Brunt  was  to  have  power  to  sell,  and  hold  the  moneys, 
in  pursuance  of  the  trust  for  sale,  upon  trust,  to  pay  off  the  liolroyds, 
and  to  pay  the  surplus,  if  any,  to  Taylor.  The  indenture,  in  addition 
to  a  clause  binding  Taylor,  during  the  continuance  of  the  trust,  to  in- 
sure to  the  extent  of  £5,000  contained  the  following  covenant :  "  That 
all  machinery,  implements,  and  things  which,  during  the  continuance 
of  this  security,  shall  be  fixed  or  placed  in  or  about  the  said  mill, 
buildings,  and  appurtenances,  in  addition  to  or  substitution  for  the  said 
premises,  or  any  part  thereof,  shall,  during  such  continuance  as  afore- 
said, be  subject  to  the  trusts,  powers,  provisos,  and  declarations  here- 
inbefore declared  and  expressed  concerning  the  said  premises  ;  and 
that  the  said  James  Taylor,  his  executors,  etc.,  will  at  all  times,  during 
such  continuance  as  aforesaid,  at  the  request,  etc.,  of  the  said  liolroyds, 
their  executors,  etc.,  do  all  necessary  acts  for  assuring  such  added  or 
substituted  machinery,  implements,  and  things,  so  that  the  same  may 
become  vested  accordingly."  The  deed  was,  four  days  afterwards, 
duly  registered,  as  a  bill  of  sale,  under  the  17  &  18  Vict.  c.  36.  Tay- 
lor, who  remained  in  possession,  sold  and  exchanged  some  of  the  old 
machinery,  and  introduced  some  new  machinery,  of  which  he  rendered 
an  account  to  the  liolroyds  before  April,  1860  ;  but  no  conveyance  was 
made  of  this  new  machinery  to  them,  nor  was  an}'  act  done  by  them, 
or  on  their  behalf,  to  constitute  a  formal  taking  of  possession  of  the 
added  machinery.  On  the  2d  April,  1860,  the  Holroyds  served  Taylor 
with  a  demand  for  payment  of  the  £5,000  and  interest,  and  no  payment 
being  made,  they,  on  the  30th  April,  took  possession  of  the  machinery, 
and  advertised  it  for  sale  by  auction  on  the  21st  May  following. 

On  the  13th  April,  1860,  Emil  Preller  sued  out  a  writ  of  scire  facias 
against  Taylor  for  the  sum  of  £155  18s.  Ad.,  damages  and  costs,  which 
was  executed  on  the  following  day  by  James  Davis,  an  officer  of  Mr. 
Garth  Marshall,  then  high  sheriff  of  York.  On  the  10th  May.  I860,  a 
similar  writ,  for  £138  3s.  3d.,  was  executed  by  Davis,  and  on  the  25th 
.May,  I860,  the  property  was  sold  by  the  sheriff.  Notice  was  given  to 
the  sheriff  of  the  bill  of  sale  executed  in  favor  of  the  liolroyds.  The 
only  part  of  the  machinery  claimed  by  the  execution  creditors  consisted 
of  those  things  which  had  been  purchased  by  Taylor  since  the  date  of 


12  HOLROYD    V.    MARSHALL.  [CHAP.  I. 

the  bill  of  sale.  The  sheriff  insisted  on  taking  under  the  writs  these 
added  articles,  and  the  Holroyds,  on  the  30th  May,  1860,  filed  their 
bill  against  the  sheriff,  and  the  other  necessary  parties,  praying  for  an 
assessment  of  damages  and  general  relief.  The  cause  was  heard 
before  Vice-Chancellor  Stuart,  who,  on  27th  July,  1860,  made  an 
order,  declaring  that  the  whole  machinery  in  the  mill,  including  the 
added  and  substituted  articles,  at  the  time  of  the  execution,  vested 
in  the  plaintiffs  by  virtue  of  the  bill  of  sale.  On  appeal,  before  Lord 
Chancellor  Campbell,  on  the  22d  December,  1860,  the  Vice-Chancellor's 
order  was  reversed.     This  present  appeal  was  then  brought. 

Lord  Chelmsford.  My  Lords,  this  case,  which  has  become  of 
great  importance,  has  been  twice  fully  and  ably  argued,  there  having 
been  a  difference  of  opinion  amongst  your  Lordships  upon  the  first 
argument,  which  made  it  desirable  that  a  second  should  take  place. 
Upon  the  original  argument  I  thought  that  the  decree  of  my  late  noble 
and  learned  friend,  Lord  Campbell,  could  not  be  maintained  ;  but  I 
came  to  this  conclusion  with  all  the  deference  due  to  his  great  legal 
experience,  and  with  the  more  doubt  as  to  the  soundness  of  my  views, 
upon  finding  not  only  that  he  adhered  to  his  opinion  on  hearing  the 
question  argued  in  this  House,  but  that  he  was  supported  in  it  by  my 
noble  and  learned  friend,  Lord  Wensleydale,  for  whose  judgment  (it 
is  unnecessary  to  say)  I  entertain  the  most  sincere  respect.  Aware 
that  I  was  opposed  to  such  eminent  authorities,  I  listened  to  the  second 
argument  with  the  most  earnest  and  anxious  attention  ;  but  nothing 
which  I  heard  in  the  course  of  it  tended  to  shake  the  opinion  which  I 
had  originally  formed.  I  should,  therefore,  have  been  compelled  to 
state  this  opinion  under  such  discouraging  circumstances,  if  1  had  not 
happily  been  fortified  by  the  concurrence  of  the  noble  and  learned  lord 
upon  the  Woolsack,  before  whom  the  last  argument  took  place.  His 
great  learning  and  long  experience  in  courts  of  equity  justify  me  now 
in  expressing  myself  with  some  confidence  in  a  case  in  which  his  views 
coincide  with  mine,  and  which  is  to  be  decided  upon  equitable  grounds 
and  principles. 

In  considering  the  question,  1  propose  to  advert  to  the  various  points 
which  were  touched  upon  in  the  course  of  both  the  arguments,  although 
upon  the  last  occasion  many  were  omitted  which  were  raised  upon  the 
first.  The  question  in  the  case  is,  whether  the  appellants,  who  have 
an  equitable  title  as  mortgagees  of  certain  machinery  fixed  and  placed 
in  a  mill,  of  which  the  mortgagor,  James  Taylor,  was  tenant,  are  enti- 
tled to  the  property  which  was  seized  by  the  sheriff,  under  two  writs  of 
execution  issued  against  the  mortgagor,  in  priority  to  those  executions, 
or  either  of  them. 

The  title  of  the  appellants  depends  upon  a  deed  dated  the  20th  Sep- 
tember. 1858.  [His  Lordship  here  stated  the  bill  of  sale  and  the  other 
facta  of  the  case;  see  ante.']  The  machinery  sold  by  the  sheriff  was 
more  than  sufficienl  to  satisfy  the  first  execution,  and  the  appellants, 
claiming  a  preference  over  both  executions,  contend  that  the  posses- 


SECT.  II.]  HOLROYD   V.    MARSHALL.  13 

sion  taken  by  them  on  the  30th  April  entitled  them,  at  all  events,  to 
priority  over  the  second  execution  of  the  11th  May.  The  great  ques- 
tion, however,  is,  whether  they  are  entitled  to  a  preference  over  the 
first  execution  by  the  mere  effect  of  their  deed  ;  or  whether  it  was 
necessary  that  some  act  should  have  been  done  after  the  new  machin- 
ery was  fixed  or  placed  in  the  mill,  in  order  to  complete  the  title  of  the 
appellants. 

It  was  admitted  that  the  right  of  the  judgment  creditor,  who  has  no 
specific  lien,  but  only  a  general  security  over  his  debtor's  property, 
must  be  subject  to  all  the  equities  which  attach  upon  whatever  prop- 
erty is  taken  under  his  execution.  But  it  was  said  (and  truly  said) 
that  those  equities  must  be  complete,  and  not  inchoate  or  imperfect, 
or,  in  other  words,  that  they  must  be  actual  equitable  estates,  and  not 
mere  executory  rights. 

AY  hat,  then,  was  the  nature  of  the  title  which  the  mortgagees  ob- 
tained under  their  mortgage  deed?  If  the  question  had  to  be  decided 
at  law,  there  would  be  no  difficulty.  At  law  an  assignment  of  a  thing 
which  has  no  existence,  actual  or  potential,  at  the  time  of  the  execu- 
tion of  the  deed,  is  altogether  void.  Robinson  v.  Macdonnell,  5  Maule 
&  S.  -i^.S.  But  where  future  property  is  assigned,  and  after  it  comes 
into  existence,  possession  is  either  delivered  by  the  assignor,  or  is 
allowed  by  him  to  be  taken  by  the  assignee,  in  either  case  there  would 
be  the  novus  actus  interveniens  of  the  maxim  of  Lord  Bacon,  upon  which 
Lord  Campbell  rested  his  decree,  and  the  property  would  pass. 

It  seemed  to  be  supposed  upon  the  first  argument  that  an  assign- 
ment of  this  kind  would  not  be  void  in  law  if  the  deed  contained  a 
license  or  power  to  seize  the  after-acquired  property.  But  this  circum- 
stance would  make  no  difference  in  the  case.  The  mere  assignment  is 
itself  a  sufficient  dedaratio  prcecedens  in  the  words  of  the  maxim  ;  and 
although  Chief-Justice  Tindal,  in  the  case  of  Lunn  v.  Thornton,  1  C.  B. 
379,  said,  "  It  is  not  a  question  whether  a  deed  might  not  have  been  so 
framed  as  to  give  the  defendant  a  power  of  seizing  the  future  personal 
goods,"  he  must  have  meant  that  under  such  a  power  the  assignee  might 
have  taken  possession,  and  so  have  done  the  act  which  was  necessary 
to  perfect  his  title  at  law.  This  will  clearly  appear  from  the  case  of 
Congreve  v.  Evetts,  10  Exch.  298,  in  which  there  was  an  assignment 
of  growing  crops  and  effects  as  a  security  for  money  lent,  with  a  power 
for  the  assignee  to  seize  and  take  possession  of  the  crops  and  effects 
bargained  and  sold,  and  of  all  such  crops  and  effects  as  might  lie  sub- 
stituted for  them  ;  and  Baron  Parke  said,  "  If  the  authority  given  by 
the  debtor  by  the  bill  of  sale  had  not  been  executed,  it  wotdd  have 
been  of  no  avail  against  the  execution.  It  gave  no  legal  title,  nor 
even  equitable  title,  to  any  specific  goods;  but  when  executed  not 
fully  or  entirely,  but  only  to  the  extent  of  taking  possession  of  the 
growing  crops,  it  is  the  same  in  our  judgment  as  if  the  debtor  himself 
had  put  the  plaintiff  in  actual  possession  of  those  crops."  And  in 
Hope  /•.   llaylcy,  .">   Ellis  v.v  B.  830,  845  (a  case  much  relied  upon  by 


14  HOLKOYD  V.    MAESHALL.  [CHAP.  I. 

the  Vice-Chancellor),  where  there  was  an  agreement  to  transfer  goods, 
to  be  afterwards  acquired  and  substituted,  with  a  power  to  take  pos 
session  of  all  original  and  substituted  goods,  Lord  Campbell,  Chief 
Justice,  said,  "  The  intention  of  the  contracting  parties  was  that  the 
present  and  future  property  should  pass  by  the  deed.  That  could  not 
be  carried  into  effect  by  a  mere  transfer  ;  but  the  deed  contained  a 
license  to  the  grantee  to  enter  upon  the  property,  and  that  license, 
when  acted  upon,  took  effect  independently  of  the  transfer." 

I  have  thought  it  right  to  dwell  a  little  upon  these  cases,  both  on 
account  of  some  expressions  which  were  used  in  argument  respecting 
them,  and  also  because  in  determining  the  present  question  it  is  useful 
to  ascertain  the  precise  limits  of  the  doctrine  as  to  the  assignment  of 
future  property  at  law.  The  decree  appealed  against  proceeds  upon 
the  ground,  not  indeed  that  an  assignment  of  future  property,  without 
possession  taken  of  it,  would  be  void  in  equity  (as  the  cases  to  which 
I  have  referred  show  that  it  would  be  at  law),  but  that  the  equitable 
right  is  incomplete  and  imperfect  uuless  there  is  subsequent  possession, 
or  some  act  equivalent  to  it  to  perfect  the  title. 

In  considering  the  case,  it  will  be  unnecessary  to  examine  the  au- 
thorities cited  in  argument,  to  show  that  if  there  is  an  agreement 
to  transfer  or  to  charge  future  acquired  property,  the  property  passes, 
or  becomes  liable  to  the  charge  in  equity,  where  the  question  has  arisen 
between  the  parties  to  the  agreement  themselves.  In  order  to  deter- 
mine whether  the  equity  which  is  created  under  agreements  of  this 
kind  is  a  personal  equity  to  be  enforced  by  suit,  or  to  be  made  avail- 
able by  some  act  to  be  done  between  the  parties,  or  is  in  the  nature  of 
a  trust  attaching  upon  and  binding  the  property  at  the  instant  of  its 
coming  into  existence,  we  must  look  to  cases  where  the  rights  of  the 
third  persons  intervene. 

The  respondents,  in  support  of  the  decree,  relied  strongly  on  what 
was  laid  down  by  Baron  Parke  in  Mogg  v.  Baker,  3  M.  &  W.  li)."»,  198, 
as  the  rule  in  equity  which  he  stated  he  had  derived  from  a  very  high 
authority,  "that  if  the  agreement  was  to  mortgage  certain  specitic 
furniture,  of  which  the  corpus  was  ascertained,  that  would  constitute 
an  equitable  title  in  the  defendant,  so  as  to  prevent  it  passing  to  the 
assignees  of  the  insolvent,  and  then  the  assignment  would  make  that 
equitable  title  a  legal  one;  but  if  it  was  only  an  agreement  to  mort- 
gage furniture  to  be  subsequently  acquired,  or"  (the  word  "  or"  is 
omitted  in  the  report)  "  to  give  a  bill  of  sale  at  a  future  day  of  the 
furniture  and  other  goods  of  the  insolvent,  then  it  would  cover  no 
specific  furniture,  and  would  confer  no  right  in  equity."  The  mean- 
in-  <»f  these  latter  words  must  be  that  there  would  be  no  complete 
equitable  transfer  of  the  property,  because  there  can  be  no  doubt  that 
the  agreement  stated  would  create  \\  right  in  equity  upon  which  the 
party  entitled  mighl   61e  a  hill  for  specific  performance. 

This  point  is  so  clear  that  it  is  almost  unnecessary  to  refer  to  the 
observations  of  Lord  Eldon,  in  the  case  of  the  ship  "  Warre,"  8  Price, 


SECT.  II.]  HOLKOYD   V.    MARSHALL.  15 

261),  n.,  in  support  of  it.  It  must  also  be  observed  that  the  proposition 
in  Mogg  v.  linker  hardly  reaches  the  present  question,  because  it  is 
not  stated  as  a  case  of  an  actual  transfer  of  future  property,  but  as  an 
agreement  to  mortgage,  or  to  give  a  bill  of  sale  at  a  future  day.  The 
only  equity  which  could  belong  to  a  party  under  such  an  agreement 
would  be  to  have  a  mortgage  or  a  bill  of  sale  of  the  future  property 
executed  to  him.  It  does  not  meet  a  case  like  the  present,  where  it  is 
expressly  provided  that  all  additional  or  substituted  machinery  shall  be 
subject  to  the  same  trusts  as  are  declared  of  the  existing  machinery. 

Under  a  covenant  of  this  description  to  hold  that  that  trust  attaches 
upon  the  new  machinery  as  soon  as  it  is  placed  in  the  mill,  is  to  give 
an  effect  to  the  deed  in  perfect  conformity  with  the  intention  of  the 
parties  ;  and  as,  by  the  terms  of  the  deed,  Taylor  was  to  remain  in 
possession,  the  act  of  placing  the  machinery  in  the  mill  would  appear 
to  be  an  act  binding  his  conscience  to  the  agreed  trust  on  behalf  of 
the  appellants,  and  nothing  more  woidd  appear  to  be  requisite,  unless 
by  the  established  doctrine  of  a  court  of  equity  some  further  act  was 
indispensable  to  complete  their  equitable  title. 

The  judgment  of  Lord  Campbell,  resting,  as  he  states,  upon  Lord 
Bacon's  maxim,  determines  that  some  subsequent  act  is  necessary  to 
enable  "  the  equitable  interest  to  prevail  against  a  legal  interest  subse- 
quently bond  fide  acquired."  It  is  agreed  that  this  maxim  relates  only 
to  the  acquisition  of  a  legal  title  to  future  property.  It  can  be  extended 
to  equitable  rights  and  interests  (if  at  all)  merely  by  analogy  ;  but  in 
thus  proposing  to  enlarge  the  sphere  of  the  rule,  it  appears  to  me  that 
sufficient  attention  has  not  been  paid  to  the  different  effect  and  opera- 
tion of  agreements  relating  to  future  property  at  law  and  in  equity. 
At  law,  property  non-existing,  but  to  be  acquired  at  a  future  time,  is 
not  assignable  ;  in  equity  it  is  so.  At  law  (as  we  have  seen),  although 
a  power  is  given  in  the  deed  of  assignment  to  take  possession  of  after- 
acquired  property,  no  interest  is  transferred,  even  as  between  the 
parties  themselves,  unless  possession  is  actually  taken  ;  in  equity  it  is 
not  disputed  that  the  moment  the  property  comes  into  existence  the 
agreement  operates  upon  it. 

No  case  has  been  mentioned  in  which  it  has  been  held  that  upon  an 
agreement  of  this  kind  the  beneficial  interest  does  not  pass  in  equity  to 
a  mortgagee  or  purchaser  immediately  upon  the  acquisition  of  the  prop- 
erty, except  that  of  Langton  v.  Horton,  1  Hare.  549,  which  was  relied 
upon  by  the  respondents  as  a  conclusive  authority  in  their  favor.  I 
need  not  say  that  I  examine  every  judgment  of  that  able  and  careful 
Judge  Vice-Chancellor  Wigram  with  the  deference  due  to  such  a  highly 
respected  authority.  Langton  v.  Horton  was  the  case  of  a  ship,  her 
tackle  and  appurtenances,  and  all  oil.  head  matter,  ami  other  cargo 
which  might  be  caught  and  brought  home.  The  Vice-Chancellor  de- 
cided, in  the  first  place,  that  :is  against  the  assignpr  there  was  a  valid 
assignment  in  equity  of  the  future  cargo.  But  the  question  arising  be- 
tween the  mortgagees  and  a  judgment  creditor,  who  had  afterwards 


16  HOLROYD  V.    MARSHALL.  [CHAP.  I. 

sued  out  a  writ  of  ft.  fa.,  his  Honor,  assuming  that  the  equitable  title 
which  was  good  against  the  assignor  would  not,  under  the  circumstances 
of  the  case,  be  available  against  the  judgment  creditor,  proceeded  to 
consider  whether  enough  had  been  done  to  perfect  the  title  of  the  mort- 
gagees, and  ultimately  decided  in  their  favor  upon  the  acts  done  by 
them  to  obtain  possession  of  the  cargo. 

It  was  said  upon  the  first  argument  of  this  case  by  the  counsel  for 
the  appellants  that  the  judgment  of  the  Vice-Chancellor  was,  upon  this 
occasion,  fettered  by  his  deference  to  the  opinion  apparently  entertained 
and  expressed  by  Lord  Cottenham  in  the  case  of  Whitworth  v.  Gau- 
gain,  1  Phill.  728.  It  will  be  necessary,  therefore,  to  direct  attention 
for  a  short  time  to  that  case,  and  especially  as  it  has  an  immediate 
bearing  upon  the  present  occasion.  The  case  as  originally  presented 
before  Lord  Cottenham,  was  an  appeal  from  an  order  of  the  Vice- 
Chancellor  of  Euglaud  appointing  a  receiver.  The  bill  of  the  equitable 
mortgagees  was  founded  entirely  upon  alleged  fraud  and  collusion  be- 
tween the  mortgagor  and  the  tenants  by  elegit.  The  defendants  had 
denied  fraud  and  collusion,  and  also  notice  of  the  mortgagee's  title  at 
the  time  of  obtainiug  possession  under  the  elegits.  The  plaintiffs,  in 
argument,  attempted  to  set  up  a  case  not  made  by  their  bill,  viz.,  that 
independently  of  the  question  of  fraud,  they  had  by  law  a  preferable 
title  to  the  defendants.  The  Lord  Chancellor  discharged  the  order  for 
a  receiver,  solely  on  the  ground  that  the  plaintiffs  had  failed  in  making 
out  the  case  on  which  they  asked  for  the  interference  of  the  court. 
Upon  discharging  the  order,  Lord  Cottenham  is  reported  to  have  said 
that  in  the  argument  a  totally  different  turn  was  given,  or  attempted  to 
be  given,  to  the  plaintiff's  case  ;  viz.,  that  independently  of  the  question 
of  fraud,  they  had  by  law  a  preferable  title  to  the  defendants.  "If 
(he  added)  the  bill  had  been  framed  with  that  view,  and  the  claim  of 
the  plaintiffs  founded  on  that  supposed  equity,  I  should  have  required 
a  great  deal  more  to  satisfy  me  of  the  validity  of  that  equity  before  I 
could  have  interposed  by  interlocutory  order,  because  I  find  these  de- 
fendants in  possession  of  a  legal  title,  although  not  to  all  intents  and 
purposes  an  estate,  yet  a  right  and  interest  in  the  land  which  under  the 
authority  of  an  Act  of  Parliament  they  had  a  right  to  hold,  the  elegit 
being  the  creature  of  the  Act  of  Parliament,  and,  therefore,  they  have 
a  parliamentary  title  to  hold  the  land  as  against  all  persons,  unless  an 
equitable  case  can  be  made  out  to  induce  this  court  to  interfere."  Al- 
though Vice-Chancellor  Wigram,  in  Langton  v.  Horton,  1  Hare,  549, 
in  adverting  to  this  language,  said  that  he  thought  Lord  Cottenham  in- 
tended  only  what  his  words  literally  expressed,  that  he  would  not  inter- 
fere  againsl  the  judgment  creditor  by  an  interlocutory  order  unless  he 
was  w.ll  satisfied  of  the  validity  of  the  equity  to  which  he  was  called 
upon  t<»  give  summary  effect,  yet  it  is  impossible  to  doubt  (to  use  the 
expressions  of  his  Honor)  "that  the  strong  leaning  of  Lord  Cotten- 
ham's  mind  "  was  in  favor  of  the  legal  right  of  the  judgment  creditor 
over  the  equitable  title  of  the  mortgagees. 


SECT.  II.]  HOLROYD   V.    MARSHALL.  17 

This  opinion,  though  merely  expressed  incidentally,  would  be  entil  led 
to  the  greatest  weight  upon  the  present  question,  if  the  law  had  not 
been  since  settled  in  opposition  to  it.  For  in  consequence  of  the  ground 
upon  which  Lord  Cotlenlnun  discharged  the  order  for  a  receiver,  the 
plaintiffs  amended  their  bill,  and  inserted  a  prayer  for  alternative  relief, 
independent  of  fraud  and  collusion  ;  and  the  cause  having  been  brought 
on  for  hearing  before  Vice-Chancellor  YVigram,  his  Honor  decided  that 
the  mortgagees  were  entitled  in  equity  to  enforce  their  charge  in  priority 
to  the  judgment  creditors  of  the  mortgagor,  although  they  had  no  no- 
tice of  the  equitable  mortgage,  and  had  obtained  actual  possession  of 
the  land  by  writ  of  elegit  and  attornment  of  the  tenants. 

This  decision  was  afterwards  affirmed  by  Lord  Lyndhurst,  who  in 
the  course  of  his  judgment  mentioned  the  case  of  Abbott  v.  Stratten, 
3  Jones  &  L.  603,  where  Sir  Edward  Sugden,  then  Lord  Chancellor 
of  Ireland,  had  determined  that  an  equitable  mortgagee  was  entitled  to 
priority  over  a  subsequent  creditor  by  judgment,  who  was  in  possession 
by  a  receiver,  and  who  had  no  notice  of  the  mortgage  ;  and  referring  to 
Whitworth  v.  Gaugain,  3  Hare,  416,  expressed  his  agreement  with  the 
conclusion  to  which  Vice-Chancellor  Wigram  had  come  in  that  case, 
and  stated  that  "he  had  repeatedly  acted  on  the  rule  that  an  agree- 
ment binding  property  for  valuable  consideration,  though  equitable 
only,  will  take  precedence  of  a  subsequent  judgment,  whatever  may  be 
the  consideration  for  it,  and  whether  it  be  obtained  in  invitum  or  by 
confession." 

Whatever  doubts,  therefore,  may  have  been  formerly  entertained 
upon  the  subject,  the  right  of  priority  of  an  equitable  mortgagee  over 
a  judgment  creditor,  though  without  notice,  may  now  be  considered  to 
be  firmly  established  ;  and,  according  to  the  opinion  of  Lord  St.  Leon- 
ards, "any  agreement  binding  property  for  valuable  consideration" 
will  confer  a  similar  right. 

It  does  not  appear  from  this  review  of  the  case  of  Whitworth  v. 
Gaugain  that  it  could  have  had  any  influence  over  the  question  in 
Langton  v.  Horton,  as  to  the  imperfection  of  the  mortgagee's  title,  un- 
less something  had  been  done  to  perfect  it.  The  point  does  not  appear 
to  have  been  at  all  noticed  by  Lord  Cottenham,  his  observations  having 
been  confined  to  the  competition  between  the  equitable  title  of  the 
mortgagee  and  the  legal  title  of  the  judgment  creditors.  Langton  r. 
Horton  must  therefore  be  accepted  as  an  authority  that  there  may  be 
cases  in  which  an  equitable  mortgagee's  title  may  be  incomplete  against 
a  subsequent  judgment  creditor.  In  that  case  the  delivery  of  posses- 
sion of  the  cargo  on  board  the  vessel  was,  as  the  Vice-Chancellor  said, 
"  impossible,  as  the  vessel  was  at  sea.  The  parties  could  do  nothing 
more  in  this  country  with  reference  to  it  than  execute  an  instrument 
purporting  to  assign  such  interest  as  Birnie  (the  mortgagor)  had.  send 
a  notice  of  the  assignment  to  the  master  of  the  ship,  and  await  the 
arrival  of  the  ship  and  cargo.  This  was  the  course  taken  ;  and  on  the 
arrival  of  the  ship  at  the  port  of  Loudon  the  plaintiffs  immediately  de- 

2 


18  HOLROYD   V.    MARSHALL.  [CHAI\  I. 

manded  possession."  The  cargo  was,  in  point  of  fact,  in  possession 
of  the  captain,  as  the  agent  for  the  owner,  the  mortgagor.  It  would 
have  been  rather  a  strange  effect  to  give  to  the  assignment  of  the  future 
cargo,  to  hold  that  when  it  came  into  existence  a  trust  attached  upon  it 
for  the  benefit  of  the  mortgagee,  that  thereupon  the  captain  became  his 
agent,  and  that  the  mortgagee  thereby  acquired  a  perfect  equitable 
right  to  the  property,  which  was  valid  against  all  subsequent  legal 
claimants.  Langton  v.  Horton  may  have  been  rightly  decided  as  to  the 
necessity  for  the  completion  of  the  mortgagee's  title  under  the  circum- 
stances which  there  existed,  and  yet  it  will  be  no  authority  for  saying 
that  in  every  case  of  an  equitable  mortgage  of  future  property  some- 
thing beyond  the  execution  of  the  deed  and  the  coming  into  existence 
of  the  property  will  be  necessary. 

It  certainly  appears  to  be  putting  too  great  a  stress  upon  this  case, 
to  urge  it  as  an  authority  that  an  equitable  title  would  have  been  de- 
fective if  certain  circumstances  had  not  existed,  when  the  existence  of 
those  circumstances  was  established  in  proof  and  made  the  ground  of 
the  decision. 

But  if  it  should  still  be  thought  that  the  deed,  together  with  the  act 
of  bringing  the  machinery  on  the  premises,  were  not  sufficient  to  com- 
plete the  mortgagee's  title,  it  may  be  asked  what  more  could  have  been 
done  for  this  purpose.  The  trustee  could  not  take  possession  of  the 
new  machinery,  for  that  would  have  been  contrary  to  the  provisions  of 
the  deed  under  which  Taylor  was  to  remain  in  possession  until  default 
in  payment  of  the  mortgage  money  after  a  demand  in  writing,  or  until 
interest  should  have  become  in  arrear  for  three  months  ;  and  in  either 
of  these  events  a  power  of  sale  of  the  machinery  might  be  exercised. 
And  if  the  intervenient  act  to  perfect  the  title  in  trust  be  one  proceed- 
ing from  the  mortgagor,  what  stronger  one  could  be  done  by  him  than 
the  fixing  and  placing  the  new  machinery  in  the  mill,  by  which  it  be- 
came, to  his  knowledge,  immediately  subject  to  the  operation  of  the 
deed? 

I  asked  Air.  Amphlett,  upon  the  second  argument,  what  novus  actus 
he  contended  to  be  necessary,  and  he  replied,  "  A  new  deed."  But  this 
would  be  inconsistent  with  the  terms  of  the  original  deed,  which  em- 
braces the  substituted  machinery,  and  which  certainly  was  operative 
upon  the  future  property  as  between  the  parties  themselves.  And  it 
seems  to  be  neither  a  convenient  nor  a  reasonable  view  of  the  rights 
acquired  under  the  deed,  to  hold  that  for  any  separate  article  brought 
upon  the  mill  a  new  deed  was  necessary,  not  to  transfer  it  to  the  mort- 
gagee,  but  to  protect  it  against  the  legal  claims  of  third  persons. 

But  if  something  was  still  requisite  to  be  done,  and  that  by  the 
mortgagor,  I  cannot  help  thinking  that  the  account  delivered  by  Taylor 
to  tlif  mortgagees  of  the  old  machinery  sold,  and  of  the  new  machinery 
which  was  added  and  substituted,  was  a  sufficient  novus  (ictus  interve- 
nienSi  amounting  to  a  declaration  that  Taylor  held  the  new  machinery 
upon  the  trusts  of  the  died,  —  the  only  act  which  could  be  done  by  him 


SECT.  II.]  IIOLROYD   V.    MARSHALL.  10 

in  conformity  with  it ;  and  it  is  difficult  to  understand  for  what  other 
reason  such  an  account  should  have  been  rendered.  As  between  them- 
selves, it  is  quite  clear  that  a  new  deed  of  the  added  and  substituted 
machinery  was  unnecessary ;  no  possession  could  be  delivered  of  it, 
because  it  would  have  been  inconsistent  with  the  agreement  of  the 
parties  ;  and  anything,  therefore,  beyond  this  recognition  of  the  mort- 
gagee's right  appears  to  be  excluded  by  the  nature  of  the  transaction. 

I  will  add  a  very  few  words  on  the  subject  of  the  notice  of  the  claim 
of  the  mortgagees  to  the  judgment  creditor.  I  think  that  the  equitable 
title  would  prevail  even  if  the  judgment  creditor  had  no  notice  of  it, 
according  to  the  authorities  which  have  been  already  observed  upon. 
It  is  true  that  Lord  Cottenham,  in  the  case  of  Metcalfe  v.  The  Arch- 
bishop of  York,  1  Mylne  &  C.  547,  555,  said  that  if  the  plaintiff  in  that 
case  was  entitled  to  the  charge  upon  the  vicarage  under  the  covenant 
and  charge  in  the  deed  of  1811,  "  then,  as  the  defendants  had  notice 
of  that  deed  before  they  obtained  their  judgment,  such  charge  must  be 
preferred  to  that  judgment."  This  appears  to  imply  that  his  opinion 
was,  that  if  the  judgment  creditor  had  not  had  notice,  lie  would  have 
been  entitled  to  priority.  Much  stress,  however,  ought  not  to  be  laid 
upon  an  incidental  observation  of  this  kind,  where  notice  had  actually 
been  given,  and  where,  therefore,  the  case  was  deprived  of  any  such 
argument  in  favor  of  the  judgment  creditor.  If  Lord  Cottenham  really 
meant  to  say  that  notice  by  the  judgment  creditor  of  the  prior  equitable 
title  was  necessary  in  order  to  render  it  available  against  him,  his 
opinion  is  opposed  to  the  decisions  which  have  established  that  a  judg- 
ment creditor,  with  or  without  notice,  must  take  the  property,  subject 
to  every  liability  under  which  the  debtor  held  it. 

The  present  case,  however,  meets  any  possible  difficulty  upon  the 
subject  of  notice,  because  it  appears  that  the  deed  was  registered  as  a 
bill  of  sale,  under  the  provisions  of  the  17  &  18  Vict.  ch.  36.  It  was 
argued  that  this  Act  was  intended  to  apply  to  bills  of  sale  of  actual  ex- 
isting property  only,  and  it  probably  may  be  the  case  that  sales  of 
future  property  were  not  within  the  contemplation  of  the  Legislature  ; 
but  there  is  no  ground  for  excluding  them  from  the  provisions  of  the 
Act ;  and  upon  the  question  of  notice,  the  register  would  furnish  the 
same  information  of  the  dealing  with  future  as  with  existing  property, 
which  is  all  that  is  required  to  answer  the  objection. 

I  think  that  the  late  Lord  Chancellor  was  right  in  holding  that  if 
actual  possession  of  the  machinery  in  question  before  the  sheriff's  officer 
entered  was  necessary,  there  was  no  proof  of  such  possession  having 
been  taken  on  behalf  of  the  mortgagee.  But  upon  a  careful  consider- 
ation of  the  whole  case,  I  am  compelled  to  differ  with  him  upon  the 
ground  on  which  he  ultimately  reversed  Vice-Chancellor  Stuart's  de- 
cree. I  think,  therefore,  that  his  decree  should  be  reversed,  and  that 
of  the  Vice-Chancellor  affirmed.1 

1  Lord  Westbttrt  ami  Lord  Wenrleydale  delivered  concurring  opinions 


20  CHASE   V.    DENNY.  [CHAP.  I. 


CHASE   v.    DENNY. 

Supreme  Judicial  Court  of  Massachusetts,  October   12,  1880  — 

April  5,  1881. 

[Reported  in  130  Massachusetts,  566.] 

Contract,  by  the  assignees  in  insolvency  of  Albert  E.  Smith,  and  of 
the  firm  of  Smith  and  Collier,  for  money  had  and  received.  Answer, 
a  general  denial.  Trial  in  the  Superior  Court,  before  Wilkinson,  J., 
who  allowed  a  bill  of  exceptions,  in  substance  as  follows  :  — 

On  December  18,  1878,  Albert  E.  Smith  made  two  mortgages  to 
David  E.  Merriara  as  trustee  for  the  Leicester  National  Bank,  to  which 
Smith  was  largely  indebted,  of  certain  stock  then  in  his  mills,  and 
also  of  all  property  of  a  similar  character  which  he  might  afterwards 
acquire  and  place  in  his  mills.  These  mortgages  were  duly  recorded 
on  December  23,  1878,  and,  although  expressed  to  be  for  $3,000  and 
§10,000  respectively,  payable  on  demand,  were  intended  as  collateral 
security  for  the  general  indebtedness  of  Smith  then  due  or  thereafter 
to  be  contracted.  It  was  not  contended  that,  at  the  time  of  mak- 
ing the  mortgages,  Smith  was  insolvent,  or  in  contemplation  of 
insolvency. 

There  was  evidence  tending  to  show  that  Smith  was  insolvent  on 
March  7,  1879,  and  absconded  on  that  day;  and  that  on  March  10, 
1879,  Merriam  took  possession  of  the  property  intended  to  be  covered 
by  the  mortgages.  Two  days  afterwards  a  letter  written  by  Smith 
to  his  counsel  before  possession  was  taken,  requesting  him  to  tell  the 
bank  to  take  possession,  was  communicated  to  the  bank.  It  was 
admitted  that  all  the  property  taken  possession  of  was  acquired  by 
Smith  after  the  making  of  the  mortgages.  The  possession  of  the 
mortgagee,  taken  as  above,  was  continued  until  the  sale  of  the 
property  under  the  agreement  hereinafter  mentioned. 

Smith  was  at  the  time  a  partner  with  one  Collier,  engaged  in  a 
similar  business  at  another  place.  On  March  14,  1879,  Collier  in- 
stituted proceedings  in  insolvency  in  behalf  of  said  firm  ;  and,  after 
clue  proceedings  had,  on  April  2,  1879,  Smith  was  adjudicated  an 
insolvent  debtor  and  a  warrant  issued  against  his  estate,  and  the 
plaintiffs  were  afterwards   appointed  assignees  of  his  estate. 

On  April  29,  1*79,  an  agreement  was  entered  into  between  the 
plaint  ills,  the  mortgagee,  and  the  defendant,  by  which  the  prop- 
erty was  to  be  sold  and  the  proceeds  placed  in  the  hands  of  the 
defendant,  as  trustee,  to  be  paid  over  to  the  person  or  corpora- 
tion entitled  to  them.  And  this  action  was  brought  to  recover  such 
proceeds. 

There  was  no  other  evidence  tending  to  show  that  Smith  had  any 
participation  in  the  act  of  taking  possession  by  the  mortgagee,  either 


SECT.  II.]  CHASE   V.    DENNY.  21 

by  giving  any  authority  or  directions  before  it  was  clone  or  taking  part 
in  it  when  it  was  done,  or  any  knowledge  that  it  was  done  or  was  to 
be  done  before  possession  was  actually  taken. 

The  judge  instructed  the  jury  that,  to  defeat  the  mortgagee's  title 
by  Smith's  insolvency,  the  plaintiffs  must  show  that  Smith  was  insol- 
vent at  the  time  possession  was  taken,  and  that  the  mortgagee  at  that 
time  had  reasonable  cause  to  believe  him  to  be  insolvent,  and  that  the 
possession  was  taken  by  the  mortgagee  for  the  purpose  of  gaining  a 
preference  over  other  creditors,  and  added:  "What  did  he  take  pos- 
session for?  Was  it  to  get  the  debt  secured  by  the  mortgage  in  pref- 
erence to  other  creditors?  If  all  these  ingredients  are  established, 
then  I  rule  that  that  would  defeat  the  title  under  the  mortgages.  It 
must  have  been  intended  as  a  preference,  and  possession  taken  for 
that  purpose.  Smith  must  have  intended  a  preference,  and  the  jury 
are  at  liberty  to  look  at  the  fact  of  his  going  away  and  leaving  the 
property  in  the  shape  he  did,  and  the  fact  about  the  letter  and  the 
giving  of  the  mortgages  as  bearing  upon  that  question."' 

The  defendant  asked  the  judge  to  rule  that,  in  order  to  constitute 
a  preference,  it  was  necessary  for  the  plaintiff  to  show  some  transfer 
or  conveyance  of  property  by  the  insolvent  at  a  time  when  he  was 
insolvent  with  a  view  to  give  a  preference  to  a  creditor,  that  the 
creditor  had  reasonable  cause  to  believe  the  insolvency  of  the  debtor, 
and  that  the  transfer  or  conveyance  was  made  in  fraud  of  the  laws 
relating  to  insolvency;  and  that  if  Smith  did  no  act  and  caused  none 
to  be  done  with  reference  to  taking  possession  of  the  property,  but 
the  mortgagee  of  his  own  motion  took  possession  of  the  property  with 
a  view  of  perfecting  his  title  thereto,  the  fact  that  Smith  at  the  time 
was  insolvent,  and  the  mortgagee  had  reasonable  cause  to  believe  it, 
would  not  defeat  his  title  to  said  property  on  the  ground  of  preference. 
The  judge  refused  so  to  rule,  except  so  far  as  it  was  embraced  in  the 
ruling  given. 

The  jury  returned  a  verdict  for  the  plaintiffs ;  and  the  defendant 
alleged  exceptions. 

G.  F.  Verry  and  F.  A.  Gaskill,  for  the  defendant. 

W.  S.  B.  Hopkins,  for  the  plaintiffs. 

Soule,  J.  It  has  been  repeatedly  held  in  this  Commonwealth  that 
a  mortgage  purporting  to  convey  all  the  chattels  of  specified  kinds 
which  may  thereafter  be  acquired  by  the  mortgagor  does  not  give  any 
title  to  those  chattels  when  acquired  by  him,  unless  the  mortgagee 
takes  possession  of  them.  Jones  v.  Richardson,  10  Met.  181  :  Bar- 
nard v.  Eaton,  2  dish.  29 4.  If,  however,  the  after-acquired  property 
is  taken  by  the  mortgagee  into  his  possession  before  the  intervention 
of  any  rights  of  third  persons,  he  holds  it  under  a  valid  lien,  by  the 
operation  of  the  provision  of  the  mortgage  in  regard  to  it.  This  is 
stated  to  be  the  rule  in  the  case  of  Moody  r.  Wright,  13  Met.  17  ;  and 
we  see  no  reason  to  question  its  correctness.  The  mortgage  in  that 
case  was  held  to  be  inoperative  against  the  assignees  in  insolvency  of 


22  CHASE  v.    DENNY.  fCHAP.  I. 

the  mortgagor,  us  to  the  after-acquired  property,  solely  on  the  ground 
that  the  mortgagee  did  not  gain  possession  of  them  before  the  pro- 
ceedings in  insolvency  were  set  on  foot ;  and  it  was  said  by  Mr.  Justice 
Dewey,  in  delivering  the  judgment  of  the  court,  that  "  when  the  cred- 
itor does  take  possession  under  it"  (the  mortgage)  "he  acts  lawfully 
under  the  agreement  of  one  then  having  the  disposing  power,  and 
this  makes  the  lien  good."  If,  therefore,  in  that  case,  the  mortgagee 
had  taken  possession  of  the  after-acquired  property  at  any  time  before 
the  insolvency  proceedings  began,  the  decision  would  have  been  in  his 
favor,  on  the  ground  that  his  title  related  to  the  date  of  the  mortgage. 
Such  taking  of  possession,  though  effected  immediately  before  insol- 
vency proceedings  were  instituted,  and  with  full  knowledge  of  the 
insolvency  of  the  mortgagor,  would  not  be  the  acceptance  of  a  prefer- 
ence, but  the  assertion  of  a  right  which  had  been  previously  acquired 
by  the  mortgagee  under  an  instrument  in  writiug  made  when  the 
parties  to  it  were  both  competent  to  contract,  and  when  there  was  no 
qualification  of  the  right  of  either  to  deal  with  the  other.  Mitchell  v. 
Black,  6  Gray,  100.  See  also  McCaffrey  v.  AVoodin,  65  N.  Y.  459  ; 
Walker  /•.  Vaughn,  33  Conn.  577. 

The  application  of  these  doctrines  to  the  case  at  bar  is  plain.  The 
mortgage  was  made  when  the  mortgagor  was  solvent.  The  defendant 
took  possession  of  the  after-acquired  propert}',  which  the  mortgage 
purported  to  convey  to  him,  of  his  own  motion,  and  without  any  sug- 
gestion from  the  mortgagor.  In  doing  so,  he  availed  himself  of  a 
right  given  to  him  when  the  mortgage  was  delivered,  and  did  not  accept 
a  preference.  He  undoubtedly  obtained  security  for  the  debt  named 
in  the  mortgage,  and  took  possession  of  the  property  for  the  purpose 
of  doing  so  witli  full  knowledge  of  the  insolvency  of  the  mortgagor ; 
but  this  failed  to  make  his  act  the  acceptance  of  a  preference,  because 
the  right  to  do  what  he  did  was  obtained  long  before,  and  when  there 
was  no  suspicion  of  insolvency. 

The  judge  who  presided  at  the  trial  in  the  Superior  Court  erred 
therefore  in  refusing  to  rule  as  requested  by  the  defendant,  and  in 
making  the  rulings  which  were  inconsistent  with  the  ruling  asked  for 
by  him.  Exceptions  sustained.1 

1  "  The  recent  decisions  of  this  court  show  no  disposition  to  extend  the  law  beyond 
tlio  dictum  declared  in  Moody  v.  Wright,  or  to  adopt  the  principles  for  which  the  case 
of  Holroyd  v.  Marshall,  10  II.  L.  Cas.  191,  is  the  leading  authority.  In  this  Common- 
wealth, a  sale  of  persona]  chattels  is  not  good  against  creditors  unless  there  has  been 
a  delivery.  An  unrecorded  mortgage  of  personal  chattels  is  void  against  creditors, 
unless  the  property  is  delivered  to  and  retained  by  the  mortgagee,  and  a  pledge  of 
chattels  is  equally  void  unless  the  pledgee  retains  possession.  An  executory  agree- 
ment to  Bell  Buch  chattels  as  are  usually  bought  and  sold  in  the  market  is  not  one  that 
is  specifically  enforced,  and  it  does  not  create  a  trust.  Besides,  the  English  statutes 
of  bankruptcy  give  some  relief  by  vesting  in  the  trustee  in  bankruptcy  property  of 
which  the  bankrupl  is  the  reputed  or  ostensible  owner  with  the  cpnsenl  of  the  true 
owikt,  —  a  doctrine  unknown  to  our  law.  The  facts  in  the  case  at  War  show  that 
contracts  for  Becurity  on  after-acquired  chattels  may  operate  as  traps   to  catch  other 


SECT.  II.]  CHASE   V.    DENNY.  23 

creditors,  even  when  no  fraud  is  intended  ;  and  we  are  satisfied  with  the  rule  that  to 
enable  a  mortgagee,  as  against  au  attaching  creditor  or  an  assignee  in  insolvency, 
to  hold  chattels  acquired  after  the  execution  of  a  mortgage,  there  must  be  u  de- 
livery to  him,  or  possession  must  be  rightfully  taken  by  him,  and  the  possession 
acquired  in  eiiher  manner  must  be  retained  until  the  chattels  have  been  attached  or 
levied  upon  by  creditors,  or  until  proceedings  in  insolvency  are  begun.  The  only 
apparent  change  in  our  decisions  is,  that  by  the  recent  cases  possession  of  after-acquired 
chattels  rightfully  taken  by  a  mortgagee  under  the  power  contained  in  the  mortgage, 
if  the  possession  is  retained,  vests  the  title  in  the  mortgagee  as  against  third  persons, 
and  a  delivery  by  the  mortgagor  is  no  longer  held  to  be  essential."  Blanchard  v.  Cooke, 
144  Mass.  207,  225. 


24  noy's  .maxims.  [chap.  ii. 


CHAPTER  II. 
EXECUTORY   AND  EXECUTED   SALES. 


SECTION    I. 


Unconditional   Sales   op   Specific   Goods  to  which   nothing  re- 
mains TO  BE   DONE. 

NOY'S   MAXIMS.     1641. 
Chapter   XLII. 

In  all  agreements  there  must  be  quid  pro  quo  presently,  except  a  day 
be  expressly  given  for  the  payment,  or  else  it  is  nothing  but  communi- 
cation. If  a  man  do  agree  for  a  price  of  wares  he  may  not  carry  them 
away  before  he  hath  paid  for  them.  But  the  merchant  shall  retain  the 
wares  until  he  be  paid  for  them,  and,  if  the  other  take  them,  the  mer- 
chant may  have  an  action  of  trespass  or  an  action  of  debt  for  the 
money  at  his  choice. 

If  the  bargain  be  that  you  shall  give  me  ten  pound  for  my  horse 
and  you  do  give  me  a  penny  in  earnest  which  I  accept,  this  is  a  perfect 
bargain.  You  shall  have  the  horse  by  an  action  of  the  case,  and  I 
shall  have  the  money  by  an  action  of  debt. 

If  I  say  the  price  of  a  cow  is  four  pound,  and  you  say  you  will  give 
me  four  pound  and  do  not  pay  me  presently,  you  may  not  have  her 
afterwards,  except  I  will,  for  it  is  no  contract.  But  if  you  go  presently 
to  telling  of  your  money,  if  I  sell  her  to  another  you  shall  have  your 
action  of  the  case  against  me 

If  I  sell  my  horse  for  money,  I  may  keep  him  until  I  am  paid,  but  I 
cannot  have  an  action  of  debt  until  lie  lie  delivered,  yet  the  property  of 
the  horse  is  by  the  bargain  in  the  bargainee  or  buyer  ;  but  if  he  does 
presently  tender  me  my  money,  and  I  do  refuse  it,  he  may  take  the 
horse  or  have  an  action  of  detainment.  And  if  the  horse  die  in  my 
stable  between  the  bargain  and  the  delivery,  I  may  have  an  action  of 
debt  for  my  money,  because  by  the  bargain  the  property  was  in  the 
buyer. 


SECT.  L]  TAULIXG    V.   BAXTER.  25 


JAMES   TARLING   v.   BAXTER. 

In  the  King's  Bench,  Hilary  Term,  1827. 

[Reported  in  6  Barnewall  fr  Cresswell,  360.] 

Assumpsit  to  recover  back  £145  paid  by  the  plaintiff  to  the  defend- 
ant's use.  The  declaration  contained  counts  for  money  had  and  re- 
ceived, and  the  other  common  counts.  Plea,  general  issue,  with  a 
notice  of  set-off  for  goods  sold  and  delivered,  and  bargained  and  sold. 
At  the  trial  before  Abbott,  C.  J.,  at  the  London  sittings  after  Hilary 
Term,  1826,  a  verdict  was  found  for  the  plaintiff  for  £145,  subject  tu 
the  opinion  of  this  court  on  the  following  ease  :  — 

On  the  4th  of  January,  1825,  the  plaintiff  bought  of  the  defendant  a 
stack  of  hay  belonging  to  the  defendant,  and  then  standing  in  a  field 
belonging  to  the  defendant's  brother.  The  note  signed  by  the  defend- 
ant, and  delivered  to  the  plaintiff,  was  in  these  words:  "I  have  this 
day  agreed  to  sell  James  Tarling  a  stack  of  hay,  standing  in  Canonbury 
Field,°Islington,  at  the  sum  of  £145,  the  same  to  be  paid  on  the  fourth 
day  of  February  next,  and  to  be  allowed  to  stand  on  the  premises  until 
the  first  day  of  May  next."  And  the  following  note  was  signed  by  the 
plaintiff  and  delivered  to  the  defendant:  "  I  have  this  day  agreed  to 
buy  of  Mr.  John  Baxter,  a  stack  of  hay,  standing  in  Canonbury  Field. 
Islington,  at  the  sum  of  £145,  the  same  to  be  paid  on  the  fourth  day 
of  February  next,  and  to  be  allowed  to  stand  on  the  premises  until  the 
first  day  of  May  next,  the  same  hay  not  to  be  cut  until  paid  for. 
January  4,  1825."  At  the  meeting  at  which  the  notes  were  signed,  but 
after  the  signature  thereof,  the  defendant  said  to  the  plaintiff,  "  You 
will  particularly  oblige  me  by  giving  me  a  bill  for  the  amount  of  the 
hay."  The  plaintiff  rather  objected.  The  defendant's  brother,  S. 
Baxter,  on  the  eighth  of  the  same  month  of  January,  took  a  bill  of  ex- 
change for  £145  to  the  plaintiff,  drawn  upon  him  by  the  defendant, 
dated  the  4th  of  January,  1825,  payable  one  month  after  date,  which 
the  plaintiff  accepted.  The  defendant  afterwards  indorsed  it  to  George 
Baxter,  and  the  plaintiff  paid  it  to  one  Taylor,  the  holder,  when  it  he- 
came  due.  The  stack  of  hay  remained  on  the  same  field  entire  until 
the  20th  of  January,  1  *•_>">,  when  it  was  accidentally  wholly  consumed 
by  fire,  without  any  fault  or  neglect  of  either  party. 

'  A  few  days  after  the  fire  the  plaintiff  applied  to  the  defendant  to 
know  what  he  meant  to  do  when  the  bill  became  due;  the  defendant 
said,  "  1  have  paid  it  away,  and  you  must  take  it  up,  to  be  sure.  I  have 
nothing  to  do  with  it :  why  did  you  not  remove  the  hay?  "  The  plaintiff 
said  "he  could  not  because  there  was  a  memorandum  'that  it  should 
not  be  removed  until  the  lull  was  paid  :'  would  you  have  suffered  it  to 
be  removed?'"  and  the  defendant  said.  "  Certainly  not."  The  defend- 
ant's set-off  was  for  the  price  of  the  hay  agreed  to  be  sold  as  aforesaid. 
The  question  for  the  opinion  of  the  court  was,  whether  the  plaintiff 


26  TABLING   V.    BAXTER.  [CHAP.  II. 

under  the  circumstances  was  entitled  to  recover  the  sum  of  £145,  or 
any  part  thereof. 

Chitty,  for  the  plaintiff.  The  loss  in  this  case  must  fall  upon  the 
defendant.  There  is  a  difference  between  the  two  contracts  ;  the  one 
contains  a  stipulation  not  in  the  other,  that  the  hay  was  not  to  be  cut 
until  paid  for.  Now  if  that  be  a  material  part  of  the  contract,  then 
there  was  no  one  sufficient  contract  in  writing  to  satisfy  the  Statute  of 
Frauds  ;  but  assuming  that  there  was  a  complete  contract  of  sale  with- 
out the  stipulation,  and  that  the  plaintiff  thereby  consented  to  waive  a 
right  which  he  otherwise  would  have  had,  still  the  property  in  the  hay 
had  not  passed  to  the  vendee  because  this  was  a  sale  upon  credit,  and 
the  vendee  was  not  entitled  to  have  possession  of  the  goods  until  the 
credit  expired  ;  and  if  so  the  property  did  not  vest  in  him  until  the 
credit  expired.  [Holroyd,  J.  —  In  Cornyn's  Dig.,  tit.  Agreement  (B.  3), 
it  is  laid  down,  "  that  if  a  sale  be  of  goods  for  such  a  price,  and  a  day 
of  payment  limited,  the  contract  will  be  good,  and  the  property  altered 
by  the  sale,  though  the  money  be  not  paid  ; "  and  R.  10  H.  7,  8  a,  14 
H.  8,  20  a,  and  Dyer,  30  a  are  cited.  And  again,  "  If  A.  sell  a  horse 
to  B.  upon  condition  that  he  pay  £20  at  Christmas,  and  afterwards  sell 
it  to  D.,  the  sale  to  D.  is  void,  though  B.  afterwards  do  not  pay  ;  "  and 
Plowden's  Com.  432  b,  is  cited,  and  the  reason  there  given  is,  that  A. 
at  the  time  of  the  second  contract  had  no  interest  in,  nor  property,  nor 
possession  of  the  horse,  nor  any  thing  but  a  condition  ;  and  therefore 
the  second  contract  was  merely  void.]  It  is  true  that  in  Noy's  Maxims, 
p.  88,  it  is  laid  down  that  "  if  I  sell  my  horse  for  money  I  may  keep 
him  until  I  am  paid,  but  I  cannot  have  an  action  of  debt  until  he  be 
delivered,  yet  the  property  of  the  horse  is  by  the  bargain  in  the  bar- 
gainee or  buyer  ;  but  if  he  presently  tender  me  my  money  and  I  refuse 
it.  lie  may  take  the  horse  or  have  an  action  of  detinue."  But  that 
relates  clearly  to  the  case  of  a  ready-money  bargain.  In  Goodall  v. 
Skelton,  2  H.  Bl.  316,  A.  agreed  to  sell  goods  to  B.,  who  paid  a  certain 
sum  as  earnest ;  the  goods  were  packed  in  cloth  furnished  by  the  buyer, 
and  deposited  in  a  building  belonging  to  the  seller  until  the  buyer 
should  send  for  them,  but  the  seller  declared  at  the  same  time  that  they 
should  not  be  carried  away  till  he  was  paid.  It  was  held  that  the  seller 
could  not  maintain  an  action  for  goods  sold  and  delivered.  In  the 
present  case  the  hay  was  to  remain  in  possession  of  the  seller,  and 
not  to  be  cut  till  paid  for.  This  is  distinguishable,  therefore,  from 
Ilinde  v.  Whitehouse,  7  East,  558,  where  sugars  in  the  king's  ware- 
house were  held  to  pass  to  the  buyer  by  the  contract  of  sale,  although 
the  duties  were  not  paid.  It  is  more  like  Tempest  v.  Fitzgerald,  3  1>. 
A:  A.  680,  where  the  purchaser  of  a  horse  for  ready  money  rode  the 
horse,  and  requested  thai  it  might  remain  in  B.'s  possession  for  a  further 
time,  at  the  expiration  of  which  he  promised  to  fetch  it  away  and  pay 
the  price.  This  was  assented  to  by  the  seller,  and  it  was  held  that 
the  seller  could  not  recover  <m  a  count  for  horses  bargained  and  sold, 
there  having  been  no  acceptance  of  the  horse  within  the  meaning  of  the 
Statute  of  Frauds. 


SECT.  I.]  TABLING   V.    BAXTER.  27 

Bayley,  J.  Tt  is  quite  clear  that  the  loss  must  fall  upon  him  in 
whom  the  property  was  vested  at  the  time  when  it  was  destroyed  by 
fire.  And  the  question  is,  iu  whom  the  property  in  this  hay  was  vested 
at  that  time.  By  the  uote  of  the  contract  delivered  to  the  plaintiff, 
the  defendant  agreed  to  sell  the  plaintiff  a  stack  of  hay  standing  in 
Canonbury  Field,  at  the  sum  of  £145,  the  same  to  be  paid  for  on  the 
fourth  day  of  February  next,  and  to  be  allowed  to  stand  on  the  prem- 
ises until  the  first  day  of  May  next."  Now  this  was  a  contract  for  an 
immediate,  not  a  prospective,  sale.  Then  the  question  is,  In  whom  did 
the  property  vest  by  virtue  of  this  contract?  The  right  of  property 
and  the  right  of  possession  are  distinct  from  each  other;  the  right  of 
possession  may  be  in  one  person,  the  right  of  property  in  another.  A 
vendor  may  have  a  qualified  right  to  retain  the  goods  unless  payment 
is  duly  made,  and  yet  the  property  in  these  goods  may  be  in  the  ven- 
dee. The  fact  in  this  case,  that  the  hay  was  not  to  be  paid  for  until  a 
future  period,  and  that  it  was  not  to  be  cut  until  it  was  paid  for,  makes 
no  difference,  pro\  ided  it  was  the  intention  of  the  parties  that  the 
vendee  should,  by  the  contract,  immediately  acquire  a  right  of  prop- 
erty in  the  goods,  and  the  vendor  a  right  of  property  in  the  price.  The 
rule  of  law  is.  that  where  there  is  an  immediate  sale,  and  nothing  re- 
mains to  be  done  by  the  vendor  as  between  him  and  the  vendee,  the 
property  in  the  thing  sold  vests  in  the  vendee,  and  then  all  the  conse- 
quences resulting  from  the  vesting  of  the  property  follow,  one  of  which 
is,  that  if  it  be  destroyed,  the  loss  falls  upon  the  vendee.  The  note  of 
the  buyer  imports  also  an  immediate,  perfect,  absolute  agreement  of 
sale.  It  seems  to  me  that  the  true  construction  of  the  contract  is,  that 
the  parties  intended  an  immediate  sale,  and  if  that  be  so,  the  property 
vested  in  the  vendee,  and  the  loss  must  fall  upon  him.  The  rule  for 
entering  a  nonsuit  must  therefore  be  made  absolute. 

Holroyd,  J.  I  think  that  in  this  case  there  was  an  immediate  sale 
of  the  hay,  accompanied  with  a  stipulation  on  the  part  of  the  vendee, 
that  he  would  not  cut  it  till  a  given  period.  Now,  in  the  case  of  a  sale 
of  goods,  if  nothing  remains  to  be  done  on  the  part  of  the  seller,  as 
between  him  and  the  buyer  before  the  thing  purchased  is  to  be  deliv- 
ered, the  property  in  the  goods  immediately  passes  to  the  buyer,  and 
that  in  the  price  to  the  seller  ;  but  if  any  act  remains  to  be  done  on  the 
part  of  the  seller,  then  the  property  does  not  pass  until  that  act  has 
been  done.  I  am  of  opinion,  therefore,  in  this  case,  not  only  that  the 
property  immediately  passed  to  the  buyer  by  the  contract,  but  that  the 
seller  thereby  immediately  acquired  a  right  in  the  price  stipulated  to  be 
paid  for  the  goods,  although  that  was  not  to  be  paid  until  a  future  day. 
The  property  having  passed  to  the  vendee,  and  having  been  accident- 
ally destroyed  before  the  day  of  payment,  the  loss  must  fall  upon  him. 

Littledale,  J.  The  parties  on  the  -1th  of  January  stipulated  for 
the  sale  and  purchase  of  a  stack  of  hay  to  be  paid  for  in  a  month. 
Thus  the  ease  would  have  stood  but  for  the  note  of  the  contract  de- 
livered to  the  buyer,  and  in  that  there  was  a  stipulation  that  the  pur- 


28  OLYPHANT   V.    BAKER.  [CHAP.  II. 

chaser  should  not  cut  until  the  money  was  paid  ;  but  the  property  in 
the  hay  had  already  passed  by  the  contract  of  sale  to  the  purchaser, 
and  the  latter  afterwards  merely  waived  his  right  to  the  immediate 
possession.  Then  the  property  having  passed  to  the  buyer,  the  loss 
must  fall  upon  him  ;  and  consequently  this  rule  for  entering  a  nonsuit 
must  be  made  absolute.1  Hide  absolute. 


OLYPHANT  v.    BAKER. 
Supreme  Court  of  New  York,  May  Term,  1848. 

[Reported  in  5  Denio,  379.] 

Motion  to  set  aside  the  report  of  a  referee.  The  action  was  assump- 
sit for  the  balance  of  the  purchase  price  of  a  quantity  of  barley.  Plea, 
non  assumpsit.  A  contract  in  writing,  signed  by  the  defendant  only, 
was  given  in  evidence  by  the  plaintiff,  as  follows  :  — 

I  hereby  agree  to  sell  seven  hundred  bushels  of  barley  (or  what  I 
may  have  in  store  at  Mr.  P.  Church,  Jr.'s  warehouse)  to  Abner  Baker 
[the  defendant],  at  the  rate  of  forty-five  cents  per  bushel ;  to  be  deliv- 
ered when  said  Baker  may  call  for  it.  I  agree  to  hold  the  barley  free 
of  storage  until  the  first  day  of  January  next.  The  barley  is  to  be 
weighed  out  of  the  warehouse,  unless  Mr.  Baker  shall  agree  to  take 
the  weight  on  the  books.  I  hereby  acknowledge  the  receipt  of  one 
hundred  dollars  on  the  above  contract. 

Mount  Morris,  Dec.  15,  1845. 

The  plaintiff  owned  the  warehouse  called  P.  Church,  Jr.'s,  in  the 
contract,  and  before  the  contract  was  made  had  rented  it  to  one  Camp 
from  and  after  the  first  day  of  January  then  next ;  and  of  this  he  in- 
formed the  defendant  when  the  contract  was  made.  On  that  day,  or 
very  soon  afterwards,  the  defendant  saw  Camp,  and  agreed  with  him 
for  the  storage  of  the  barley,  for  him,  the  defendant,  from  the  first  of 
January  until  the  opening  of  navigation  the  ensuing  spring.  Camp 
took  possession  of  the  warehouse  under  his  lease  on  the  first  day  of 
January,  the  barley  still  remaining  in  it.  After  this  arrangement  with 
Camp  and  on  the  twenty-second  day  of  December,  the  plaintiff's  clerk 
called  on  the  defendant,  with  a  bill  of  the  barley  and  asked  for  pay- 
ment.    The  defendant  paid  him  $300,  and  promised  to  pay  the  balance, 

1  "  Sir  Cresswell  Cresswell,  in  delivering  an  elaborate  judgment  of  the  Privy  Coun- 
cil, in  Gilmour  v.  Supple,  11  Moo.  P.  C.  506,  says,  '  By  the  law  of  England,  by  a  con- 
fcracl  fur  the  sale  of  specific  ascertained  goods  the  property  immediately  vests  in  the 
bnyer,  ami  a  right  to  the  price  in  the  Beller,  unless  it.  can  be  shown  that  such  was  not 
the  intent  ion  of  the  pari  iea  '  '  Various  circumstances,'  he  adds,  '  have  been  treated  by 
our  courts  as  sufficiently  indicating  such  contrary  intention.'  I  think  this  a  very  accu- 
rate statement  <>f  t  J  j  *  -  law,"  —  per  Blackburn,  J.,  Calcutta  and  Burmah  Steam  Naviga- 
tion Co.  /•.  De  Mattos,  32  I,.  J.  Q.  1'..  322,  328.  See  also  a  similar  statement  by  the 
same  judge  in  Sweeting  v.  Turner,  I>    R.  7  <<).  15.  310,  313. 


SECT.  I.]  OLYPIIAXT   V.    BAKER.  29 

$95,  the  next  clay.  The  witness  could  not  say  that  the  bill  men- 
tioned the  number  of  bushels  of  the  barley,  but  it  contained  the  aggre- 
gate amount  that  it  came  to,  and  the  witness  did  state  to  the  defendant 
that  there  was  a  little  over  1100  bushels  of  it.  The  exact  quantity,  he 
said,  was  a  little  over  1112  bushels.  About  the  middle  of  January 
the  building  with  the  grain  in  it  was  accidentally  destroyed  by  fire. 

The  referee  reported  in  favor  of  the  defendant. 

R.  P.  Wisner  and  0.  Hastings,  for  the  plaintiff,  moved  to  set  aside 
the  report. 

E.  D.  Smith  and  E.  Griffin,  for  the  defendant. 

Whittlesey,  J.  The  sole  question  here  is  whether  there  was  a 
delivery  of  the  barley  to  the  defendant,  who  was  the  purchaser.  In 
many  cases  of  sales  of  personal  property  it  is  a  very  nice  and  difficult 
question  to  determine  whether  there  has  been  a  delivery  —  whether 
the  title  has  passed.  In  this  case  the  contract  was  executory.  The 
quantity  of  barley  was  uncertain,  and  as  it  was  sold  by  the  bushel,  the 
whole  price  could  not  be  known  until  the  quantity  was  ascertained. 
The  seller  was  entitled  to  immediate  payment ;  at  any  rate  he  was 
entitled  to  payment  before  he  parted  with  the  property.  The  pur- 
chaser was  entitled  to  the  delivery  whenever  he  chose  to  ask  for  it,  but 
he  could  not  claim  to  have  it  delivered  without  paying  the  price.  He 
was  entitled  to  have  it  weighed  out  to  him,  if  he  chose,  for  the  purpose 
of  ascertaining  the  exact  quantity  and  aggregate  amount  of  the  pur- 
chase-money. He  could,  however,  if  he  chose,  take  the  weight  as  it 
appeared  from  the  books.  If  he  had  taken  such  weight  as  the  true 
quantity,  and  paid  the  whole  price  according  to  such  weight,  the  barley 
would  have  been  deemed  to  have  been  delivered  from  the  time  of  such 
payment.     Lansing  v.  Turner,  2  John.  13. 

But  there  was  a  sale  by  weight  or  measure  at  so  much  per  bushel, 
and  in  such  cases,  as  it  is  necessary  that  the  thing  should  be  weighed 
or  measured  before  the  price  can  be  ascertained,  the  contract  is  not 
consummated  so  as  to  change  the  property  until  such  weighing  or 
measurement  is  had  ;  but  it  remains  at  the  risk  of  the  vendor.  Pothier, 
Traite  du  Contrat  de  Vente,  part  4,  308.  In  our  reports  it  is  held 
that  when,  after  a  sale  of  goods,  some  act  remains  to  be  done  by  the 
vendor  before  delivery,  the  property  does  not  vest  in  the  purchaser, 
but  continues  at  the  risk  of  the  vendor.  Such  previous  net  may  be 
counting,  weighing,  measuring,  or  inspecting,  &c.  M'Donald  v.  Hew- 
ett,  15  John.  349;  Cutwater  v.  Dodge,  7  Cowen,  85;  Hanson  v. 
Meyer,  G  East,  614;  Rapelye  v.  Mackie,  0  Cowen,  250;  Russell  v. 
Nicoll,  3  Wend.  112  ;  Ward  v,  Shaw,  7  id.  404  ;  Downer  v.  Thompson. 
2  Hill,  137.  Even  if  there  has  been  a  delivery  to  the  vendee,  and  any- 
thing remains  to  be  done  preparatory  to  ascertaining  the  price  of  the 
goods,  the  delivery  does  not  divest  the  title  of  the  vendor  until  the 
price  be  ascertained  and  paid.     Andrew  v.  Dieterich,  11  Wend.  31. 

In  this  case  it  does  not  clearly  appear  that  the  precise  quantity  of 
the  barley  was  ascertained  and  communicated  to  the  defendant.     The 


30  OLYPHA.XT    V.    BAKER.  [CHAP.  II. 

witness  says,  indeed,  that  there  were  1112  bushels  and  some  pounds, 
and  that  he  made  out  a  bill  and  presented  it  to  the  defendant ;  but  he 
does  not  state  that  the  precise  quantity  of  the  barley  was  put  in  such 
bill ;  and  on  his  cross-examination  he  states  that  he  is  not  quite  certain 
that  he  stated  the  precise  amount  of  the  barley  in  the  bill,  but  he  did 
state  to  him  there  was  a  little  over  1100  bushels.  The  defendant  took 
the  bill,  paid  the  greater  part,  and  promised  to  pay  the  balance  the 
next  day.  Is  this  evidence  that  the  defendant  agreed  to  take  the 
weight  as  it  appeared  on  the  books?  If  it  is  to  be  so  taken,  as  no 
objection  was  made  to  the  weight  in  the  bill,  is  it  to  be  deemed  that  the 
plaintiff  assented  to  parting  with  the  property  until  the  balance  of  the 
purchase-money  was  paid?  The  plaintiff  had  a  right  to  insist  that 
the  whole  price  should  be  paid  before  the  property  was  delivered,  and 
if  the  defendant  had  assumed  to  dispose  of  it  before  the  payment 
of  this  balance,  or  had  undertaken  to  remove  it,  and  it  should  be  found 
that  he  was  insolvent,  could  not  the  plaintiff  claim  the  property? 

The  making  of  the  bargain  for  the  storage  of  the  barley  after  the 
1st  of  January  was  doubtless  a  strong  circumstance,  but  was  not  of 
itself  conclusive.  There  is  a  class  of  cases  which  determine  that  though 
something  remains  to  be  done  to  ascertain  price,  &c,  yet  if  it  clearly 
appears  to  be  the  intention  of  the  parties  that  the  property  shall  be 
deemed  to  be  delivered  and  the  title  pass,  it  will  be  so  held.  Macom- 
ber  v.  Parker,  13  Pick.  178;  Riddle  v.  Varnum,  20  id.  280.  There 
does  not  appear  to  be  anything  in  this  case  to  show  any  different  inten- 
tion of  the  parties  than  that  which  the  law  presumes  from  their  acts. 
The  case  is  not  analogous  to  those  above  referred  to.  It  is  one  of 
some  nicety,  but  on  the  whole  I  think  the  motion  to  set  aside  the 
report  of  the  referee  should  be  denied. 

Beardsley,  C.  J.  It  is  a  general  rule  of  the  common  law  that  a 
mere  contract  for  the  sale  of  goods,  where  nothing  remains  to  be  done 
by  the  seller  before  making  delivery,  transfers  the  right  of  property, 
although  the  price  has  not  been  paid,  nor  the  thing  sold  delivered  to 
the  purchaser.  Long  on  Sales.  42  ;  Ross  on  Vend.  &  Pur.  1  ;  2  Kent, 
492;  Simons  v.  Swift,  5  B.  &  C.  857;  Tarling  v.  Baxter,  6  id.  360. 
In  this  case  the  price  per  bushel  for  the  barley  was  specified  in  the 
written  contract,  although  the  precise  quantity  sold  was  not  then  known 
to  the  parties  ;  that,  according  to  the  contract,  was  to  be  ascertained 
by  weighing  the  barley,  unless  the  defendant  should  agree  to  take  it  as 
the  weight  might  appear  on  the  warehouse  books.  When  the  contract 
of  sale  was  made,  it  was  impracticable  to  determine  what  amount,  in 
the  whole,  was  to  lie  paid  by  the  purchaser,  for  that  would  depend 
upon  the  quantity  of  barley  sold,  to  be  ascertained  in  one  of  the  mod(  a 
agreed  upon  ;  it  may  therefore  well  be  that  this  contract  of  sale  did 
not,  ipso  facto  ct  eo  instant),  transfer  the  right  of  property  to  the 
purchaser. 

The  barley  was  not  afterwards  weighed  by  any  one;  that  mode  of 
ascertaining   the    amount   of   the    purchase-money   may   therefore    be 


SECT.  I.]  OLYPHANT   V.    BAKER.  31 

thrown  out  of  view.  Let  us,  however,  see  if  it  was  not,  in  another 
way,  completely  adjusted  between  the  parties. 

About  a  week  after  the  contract  of  sale  had  been  entered  into  the 
plaintiff's  clerk  made  out  a  bill  of  the  barley  sold  to  the  defendant, 
stating  the  amount  which  it  came  to,  although  it  does  not  appear  that 
the  precise  quantity  was  mentioned.  This  bill  \v:is  handed  to  the 
defendant  and  payment  demanded,  lie  paid  three  hundred  dollars 
thereupon,  and  according  to  the  evidence  agreed  to  pay  the  balance, 
that  is,  ninety  live  dollars,  within  a  day  or  two.  It  is  but  reasonable 
to  understand  from  the  evidence  on  this  point,  although  not  stated  in 
so  many  words,  that  the  bill  was  made  out  from  the  warehouse  books, 
and  if  so  the  defendant's  engagement  to  pay  the  balance  according  to 
the  bill,  was  :vn  unequivocal  agreement  to  abide  by  the  weight  of  the 
barley  as  stated  in  said  books.  But  even  if  the  bill  was  not  made  out 
as  I  have  supposed,  but  was  a  mere  estimate  of  the  quantity,  the  assent 
of  the  defendant  to  that  estimate,  as  proved  by  the  payment  of  three 
hundred  dollars  on  the  bill  and  his  agreement  to  pay  the  balance  as 
stated,  would  entirely  supersede  the  necessity  of  ascertaining,  iu  any 
other  way,  the  weight  of  the  barley  sold  and  the  consequent  amount 
of  the  purchase-money.  From  this  time,  as  the  agreement  for  the  sale 
was  absolute,  and  the  amount  of  the  purchase-money  had  been  fully 
adjusted  between  the  parties,  the  right  of  property,  as  I  think,  clearly 
vested  in  the  purchaser.  Nothing  then  remained  to  be  done  by  the 
seller  before  delivery  was  made  ;  and  although  he  still  had  possession 
and  a  lien  for  the  purchase-money,  the  right  of  property  was  in  the 
buyer,  and  with  it  the  risk  of  all  accidents  devolved  on  him.  See  the 
authorities  already  referred  to. 

This  view,  as  it  seems  to  me,  would  dispose  of  the  case  ;  but  there  is 
another  which  leads  to  the  same  result,  for  the  barley  was  in  fact  actu- 
ally delivered  to  and  received  by  the  defendant. 

When  the  written  contract  of  sale  was  made,  which  was  on  the  loth 
of  December,  the  barley  was  in  the  plaintiff's  warehouse.  The  defend- 
ant was  then  informed  by  the  plaintiff  that  he  had  rented  the  ware- 
house to  one  Camp,  from  the  first  day  of  January  then  next,  and  that 
the  defendant  must  make  an  arrangement  for  the  storage  of  the  barley 
from  that  time  with  Camp.  The  evidence  shows  that  on  the  day  of 
making  the  contract  of  purchase,  or  within  a  day  or  two  thereafter, 
the  defendants  agreed  with  Camp  that  the  barley  should  remain  in 
store  with  him  until  the  next  spring,  for  which  the  defendant  was  to 
pay  a  price  then  specified,  and  assented  to  by  both  parties.  On  the 
first  of  Janriary  Camp  went  into  possession  of  the  warehouse  under 
his  lease  from  the  plaintiff,  and  at  the  same  time  took  charge  of  the 
barley  for  the  defendant,  as  had  been  agree  1  between  them.  This  gave 
to  the  defendant,  as  full  possession  of  the  barley  as  he  would  have  ac- 
quired by  removing  it  to  his  own  storehouse,  and  his  right  of  property 
was  previously  complete  by  the  purchase.  Property,  the  right  of  pos- 
session, and  the  actual  possession,  were  here  united,  and  the  plaintiff 


32  HANSON  V.    MEYER.  [CHAP.  II. 

had  no  longer  any  right  whatever  to  the  barley.  His  lien  for  the  pur- 
chase-money was  gone,  as  he  had  voluntarily  transferred  the  possession 
of  the  barley  to  the  defendant.  The  defendant's  arrangement  with 
Camp  for  the  storage  of  the  barley  was  made  at  the  request  of  the 
plaintiff,  and  the  transfer  of  the  possession  was  with  his  full  assent. 
It  amounted  to  an  unqualified  relinquishment  of  all  right  on  the  part 
of  the  plaintiff,  and  a  complete  acquisition  of  both  possession  and  prop- 
erty by  the  defendant.  2  Kent  Com.  500,  502  ;  Ross,  65-G6,  72-73  ; 
Chaplin  v.  Rogers,  1  East,  192;  Harman  v.  Anderson,  2  Camp.  243; 
Hurry  v.  Mangles,  1  id.  452  ;  Hollingsworth  v.  Napier,  3  Caines,  182, 
2d  ed.  and  note  at  p.  184  ;  Bentall  v.  Burn,  3  B.  &  C.  423  ;  Carter  v. 
"Williams,  19  Pick.  1.  The  sale  being  completely  executed,  the  pur- 
chaser and  owner,  not  the  seller,  should  stand  the  loss.  I  think  the 
report  of  the  referee  should  be  set  aside. 

McKissock,  J.,  concurred.  Report  set  aside. 


SECTION    II. 

Sales  of  Specific  Goods  to  which  something  remains  to  be  done. 

HANSON    and   Another,  Assignees    of    Wallace   and   Hawes, 
Bankrupts,    v.    MEYER. 

In  the  King's  Bench,  July  2,  1805. 

[Reported  in  6  East,  614.] 

This  was  an  action  of  trover  brought  to  recover  the  value  of  33 
cwt.  1  qr.  21  lbs.  of  starch,  which  was  tried  before  Lord  Ellenborough, 
C.  J.,  at  the  sittings  at  Guildhall  after  Trinity  term,  1803,  when  there 
was  a  verdict  for  the  defendant :  and  a  motion  being  made  for  a  new- 
trial  which  was  argued  in  last  Michaelmas  term,  the  court  by  consent 
in  Hilary  term  last  ordered  a  case  to  be  made  of  the  facts  that  were 
proved  at  the  trial,  which  are  as  follows  :  — 

The  plaintiffs  are  assignees  of  J.  Wallace  and  W.  Hawes  under  a 
commission  of  bankrupt  issued  against  them.  The  defendant  is  a  mer- 
chant  in  London.  In  January,  1801,  the  bankrupts  employed  Wright, 
their  broker,  to  purchase  of  the  defendant  a  quantity  of  starch,  about 
four  tons,  belonging  to  the  defendant,  and  which  was  then  lying  in  tin' 
Lull  Porters'  warehouse  in  Seething  Lane;  and  Wright  accordingly 
purchased  the  starch  of  the  defendant  at  £6  per  cwt.  and  sent  to  the 
bankrupts,  his  principals,  the  following  note:  — 

Deab  Sirs,  —I  have  bought  that  small  parcel  of  starch  which  you 
saw  of  Mr.  James  Meyer  for  your  account,  £6  per  cwt.  by  bill  at  2 
months  ;   1  1  days  tor  delivery  from  the  14th  inst. 

Yours,  &c,  T.  Wright. 

January  15th,  1801. 


SECT.  II.]  HANSON   V.    MEYER.  33 

The  starch  lay  at  the  Bull  Porters'.  The  broker  purchased  for  the 
bankrupts  all  Meyer's  starch  that  lay  there,  more  or  less,  whatever  it 
was,  at  £6  per  hundred-weight ;  it  was  in  papers  ;  the  weight  was  to  be 
afterwards  ascertained  at  the  price  aforesaid.  The  mode  of  delivery 
is  as  follows  :  the  seller  gives  the  buyer  a  note  addressed  to  the  ware- 
house-keeper, to  weigh  and  deliver  the  goods  to  the  buyer.  This  note 
is  taken  to  the  warehouse-keeper,  and  is  his  authority  to  weigh  and 
deliver  the  goods  to  the  vendee.  The  following  note  was  given  by  the 
defendant : — 

To  the  Bull  Porters,  Seething  Laxe,  —  Please  to  weigh  and 
deliver  to  Messrs.   Wallace  and  Hawes  all  my  starch. 

Per  James  Meyer,  William  Elliott. 

January  17,  1801. 

This  order  was  lodged  by  the  bankrupts  at  the  Bull  Porters'  ware- 
house on  the  21st  of  January,  1801,  on  which  day  the  bankrupts 
required  the  Bull  Porters  to  weigh  and  deliver  to  them  540  papers  of 
the  starch,  which  weighed  — 


And  on  the  31st  Jan.     250 
And  on  the  2d  Feb.        400 


1190 


cwt. 

21 

qr     lb. 
1     6 

9 

1  20 

15 

1     4 

46 

0  12 

At  which  respective  times  the  Bull  Porters,  in  consequence  of  their 
order,  weighed  and  delivered  the  same  to  the  bankrupts,  who  immedi- 
ately removed  the  same  ;  the  residue  thereof,  being  33  cwt.  1  qr.  21  lb. 
remained  at  the  Bull  Porters'  warehouse  till  the  failure  of  Wallace  and 
Hawes.  The  above  quantities  of  starch  continued  at  the  Bull  Porters' 
warehouse  in  the  name  and  at  the  expense  of  the  defendant  till  they 
were  weighed  and  delivered  ;  and  the  residue  also  afterwards  continued 
there  in  like  manner  unweighed,  in  his  name,  and  charged  to  his  ex- 
pense. On  the  8th  of  February,  1801,  Wallace  and  Hawes  became 
bankrupts.  It  was  admitted  that  the  defendant,  after  the  bankruptcy, 
took  away  the  remainder  of  the  starch  that  had  not  been  so  weighed. 
The  question  for  the  opinion  of  the  court  was,  whether  the  defendant 
was  entitled  to  the  above  verdict.  If  the  court  should  be  of  opinion 
that  he  was,  then  the  verdict  was  to  stand  ;  if  not,  then  a  new  trial 
was  to  be  granted  upon  such  terms  as  the  court  should  direct. 

Humphreys,  for  the  plaintiffs. 

Holroyd,  contra.  Cur.  adv.  vult. 

Lord  Ellexborough,  C.  J.,  now  delivered  judgment. 

By  the  terms  of  the  bargain  formed  by  the  broker  of  the  bankrupts 
on  their  behalf,  two  things,  in  the  nature  of  conditions  or  preliminary 
acts  on  their  part,  necessarily  preceded  the  absolute  vesting  in  them 

3 


34  HANSON   V.   MEYER.  [CHAP.  II. 

of  the  property  contracted  for ;  the  first  of  them  is  one  which  does  so 
according  to  the  generally  received  rule  of  law  in  contracts  of  sale, 
viz.,  the  payment  of  the  agreed  price  or  consideration  for  the  sale. 
The  second,  which  is  the  act  of  weighing,  does  so  in  consequence  of 
the  particular  terms  of  this  contract,  by  which  the  price  is  made  to 
depend  upon  the  weight.     The  weight  therefore  must  be  ascertained 
in  order  that  the  price  may  be  known  and  paid  ;  and  unless  the  weigh- 
ing precede  the  delivery  it  can  never,  for  these  purposes,  effectually 
take  place  at  all.     In  this  case  a  partial  weighing  and  delivery  of  sev- 
eral quantities  of  the  starch  contracted  for  had  taken  place ;  the  re- 
mainder of  it  was  uuweighed  and  undelivered  ;   and  of  course  no  such 
bill  of  two  months  for  the  price  so  depending  on  the  weight  could  yet 
be  given.     The  question  is,  What  is  the  legal  effect  of  such  part  deliv- 
ery of  the  starch  on  the  right  of  property  in  the  undelivered  residue 
thereof?     On  the  part  of  the  plaintiffs  it  is  contended  that  a  delivery 
of  part  of  an  entire  quantity  of  goods  contracted  for  is  a  virtual  de- 
livery of  the  whole,  so  as  to  vest  in  the  vendee  the  entire  property  in 
the  whole  ;  although  the  price  for  the  same  should  not  have  been  paid. 
This  proposition  was  denied  on  the  part  of  the  defendant ;  and  many 
authorities  have  been  cited  on  both  sides.     But,  without  deciding  at 
present  what  might  be  the  legal  effect  of  such  part  delivery  in  a  case 
where  the  payment  of  price  was  the  only  act  necessary  to  be   per- 
formed in  order  to  vest  the  property,  in  this  case  another  act,  it  will 
be  remembered,  was  necessary  to  precede  both  payment  of  price  and 
delivery  of  the  goods  bargained  for,  viz.,  weighing.     This  preliminary 
act  of  weighing  it  certainly   never  was   in  the   contemplation  of  the 
sellers  to  waive  in  respect  of  any  part  of  the  commodity  contracted  for. 
The  order  stated  in  the  case  from  the  defendant  to  the  Bull  Porters, 
his  agents,  is  to  weigh  and  deliver  all  his  starch.     Till  it  was  weighed, 
they  as  his  agents  were  not  authorized  to  deliver  it ;  still  less  were  the 
buyers  themselves,  or  the  present  plaintiffs,  their  assignees,  authorized 
to  take  it  by  their  own  act  from  the  Bull  Porters'  warehouse  ;  and  if 
they  could  not  so  take  it,  neither  can  they  maintain  this  action  of 
trover  founded  on  such  a  supposed  right  to  take,  or,  in   other  words, 
founded  on  such  a  supposed  right  of  property  in  the  subject-matter  of 
this  action.     If  anything  remain  to  be  done  on  the  part  of  the  seller 
as  l>etween  him  and  the  buyer,  before  the  commodity  purchased  is  to 
b  ■  delivered,  a  complete  present  right  of  property  has  not  attached  in 
the  buyer  ;  and  of  course  this  action,  which  is  accommodated  to  and 
depends  upon  such  supposed  perfect  right  of  property,  is  not  maintain- 
able.   The  action  failing,  therefore,  en  this  ground,  it  is  unnecessary  to 
consider  what  would  have  been  the  effect  of  non-payment  of  price  on 
the  right  to  the  undelivered  residue  of  the  starch,  if  the  case  had  stood 
merely  on  that  ground,  as  it  did  in  the  case  of  Hammond  and  others 
against  Anderson,  1  New  Rep.  60;  where  the  bacon  sold  in  that  case 
was  sold  for  a  certain  fixed  price,  and  where  the  weighing  mentioned 
in  that  case  was  merely  for  the  buyer's  own  satisfaction,  and  formed 


SECT.  II.]  RUGG   V.    MINETT.  35 

no  ingredient  in  the  contract  between  him  and  the  seller;  though  it 
formed  a  very  important  circumstance  in  the  case,  being  an  unequivo- 
cal act  of  possession  and  ownership  .-is  to  the  whole  quantity  sold  on 
the  part  of  the  buyer;  in  like  manner  as  the  taking  800  bushels 
of  wheat  out  of  the  whole  quantity  sold,  and  then  on  board  the  ship, 
was  holden  to  be  in  the  case  of  Slubey  v.  Heyward,  2  H.  Bl.  504. 
"Without,  therefore,  touching  the  question  which  has  been  the  main 
subject  of  argument  in  this  case,  and  upon  which  my  opinion  at  nisi 
prius  principally  turned,  and  without  in  any  degree  questioning  the 
authority  of  the  above-mentioned  two  cases  from  the  Common  Pleas, 
this  verdict  may  be  sustained,  on  the  ground  that  the  weighing  which 
was  indispensably  necessary  to  precede  the  delivery  of  the  goods,  inas- 
much as  it  was  necessary  to  ascertain  the  price  to  be  paid  for  them, 
had  not  been  performed  at  the  time  when  the  action  was  brought. 
The  verdict  therefore  must  stand,  and  judgment  be  entered  for  the 
defendant. 


RUGG  and  Others  v.  MINETT  and  Others. 
In  the  King's  Bench,  May  9,  1809. 

[Reported  in  11  East,  210  ] 

In  an  action  for  money  had  and  received  by  the  defendants  to  the 
use  of  the  plaintiffs,  a  verdict  was  found  for  the  plaintiffs  for  £1415, 
subject  to  the  opinion  of  the  court  upon  the  following  case  :  — 

On  the  28th  of  April,  1808,  the  defendants,  as  prize  agents  to  the 
commissioners  for  the  care  and  disposal  of  Danish  property,  put  up  to 
public  sale  by  auction,  at  Dover,  the  cargo  of  a  Danish  ship  in  lots,  and 
the  lots  No.  28  to  54  inclusive  consisted  of  turpentine  in  casks.  The 
quantity  contained  in  each  lot  being  marked  on  the  catalogue  thus. 
10  cwt.  3  qrs.  26  lbs.,  the  mode  of  bidding  was  this  :  each  lot  (except 
the  two  last,  which  were  sold  at  uncertain  quantities)  was  to  be  taken 
at  the  weight  at  which  it  was  marked,  and  the  bidding  was  to  be  at  so 
much  per  hundred-weight  on  that  quantity.  The  plaintiffs  employed 
one  Acres,  the  warehouseman  of  the  defendants,  to  bid  for  them,  and 
all  the  lots  of  turpentine  (with  the  exception  of  three  lots,  which  were 
sold  to  other  bidders)  were  knocked  down  to  Acres  so  acting  for  the 
plaintiffs.  No  conditions  of  sale  were  distributed  prior  to  the  sale: 
but  the  auctioneer,  before  the  bidding  commenced,  read  aloud  the  fol- 
lowing conditions  :  1st.  The  highest  bidder  to  be  the  buyer  :  but  if  any 
dispute  should  arise,  the  lot  to  lie  put  up  again.  2d.  £25  per  cent  is  to 
be  paid  to  the  auctioneer  as  a  deposit  immediately  after  the  sale,  and 
the  remainder  in  thirty  days.  The  remainder  of  the  purchase-money 
is  to  be  paid  on  the  goods  being  delivered.  Should  the  goods  remain 
after  the  limited  time,  the  warehouse  rent  from  that  time  to  be  paid,  a' 


36  RUGG   V.   MINETT.  [CHAP.  II. 

the  rate  of  2s.  per  ton  per  month,  by  the  purchaser.    3d.  The  goods  to 
be  taken  at  the  net  weight  printed  in  the  catalogue.     4th.  The  goods 
to  be  taken  away  in  twelve  months,  or  resold  to  pay  the  warehouse 
rent.     Upon  failure  of  complying  with  these  conditions,  the  deposit- 
money  is  to  be  forfeited,  and  the  commissioners  to  be  at  liberty  to  resell 
any  Tots  belonging  to  defaulters,  by  whom  all  charges  attending  the 
same  shall  be  made  good.     Is.  per  lot  under  £10  ;   Is.  6d.  from  £10 
to  £25  ;  and  2s.  above  £25,  —  lot-money  to  be  paid  by  the  buyer  to  the 
auctioneer.     Tare  allowed  for  turpentine  Is.  od.     Upon  the  turpentine 
being  put  up  to  sale,  the  auctioneer,  by  the  direction  of  one  of  the  de- 
fendants present,  announced  to  the  bidders  that  the  casks  of  turpentine 
were  to  be  filled  up  before  they  were  delivered  to  the  purchasers,  and 
that  in  order  to  effect  this,  the  two  last  lots  would  be  sold  at  uncertain 
quantities,  and  the  preceding  lots  would  be  filled  from  them.     The 
whole  of  the  turpentine,  with  the  exception  of  the  three  lots  before 
mentioned,  were  sold  to  the  plaintiffs  ;  and  they  also  were  the  pur- 
chasers of  the  two  last  lots,  from  which  all  the  lots  without  exception 
were  to  be  filled  up  ;  and  those  two  last  lots  were  accordingly  marked 
by  the  auctioneer  in  his  catalogue,  with  the  words  "  more  or  less."    Im- 
mediately after  the  sale  £200  was  paid  by  the  plaintiffs  to  the  auctioneer 
as  their  deposit ;   and  on  the  9th  of  May,  1808,  the  plaintiffs  paid  to  the 
defendants  £1715  upon  account  of  the  turpentine,  and  the  duties  paya- 
ble thereon.    The  turpentine  remained  in  the  warehouses  of  the  defend- 
ants as  before  the  sale,  but  was  entered  at  the  custom-house  at  Dover, 
in  the  name  of  the  plaintiffs,  on  the  morning  of  the  10th  of  May,  1808, 
before  the  fire,  by  Acres,  who  paid  on  behalf  of  the  plaintiffs  £450  as  a 
deposit  for  the  duties.     On  the  same  morning  the  cooper,  who  had  been 
employed  by  the  defendants  to  make  up  all  the  casks  previous  to  the 
sale  of  the  28th  of  April,  was  sent  for  by  Acres,  who  was  warehouse- 
man to  the  defendants,  and  who  acted  as  agent  for  the  plaintiffs,  to  fill 
up  the  casks  of  turpentine,  and  he  had  filled  all  of  them  except  eight  or 
ten  ;  leaving  them  with  the  bungs  out  to  enable  the  custom-house  officer, 
who  was  expected  every  minute  to  take  his  gauge  in  order  to  ascertain 
the  duties.     The  two  last  lots,  which  were  sold  at  uncertain  quantities, 
and  marked  "  more  or  less,"  contained  more  turpentine  than  was  suffi- 
cient to  (ill  up  all  those  bought  by  the  plaintiffs,  and  also  those  bought 
by  the  buyers  of  the  three  lots.      In  filling  the  casks  sold  to  the  plain- 
tiffs one  of  the  two  last  lots  was  used,  and  instead  of  the  other  of  the 
two  last  lots,  a  preceding  cask  in  point  of  number,  which  had  been 
found  to  be  an  ullage  cask,  was  substituted  by  the  cooper,  and  from 
one  of  the  two  last  lots,  the  lots  sold  to  the  other  buyers  had  been  pre- 
\  i.-usly  filled  up.     All  the  lots  sold  to  the  other  buyers  had  been  taken 
away  before  the  cooper  came  on  the  10th;  and  while  the  cooper  was 
employed  in  filling  up  the  plaintiffs'  lots,  and  placing  them  ready  with 
the  bungs  of  the  disks  out  for  the  custom-house  officer  to  gauge,  but 
before  he  had  filled  up  all  the  casks,  or  bunged  any  of  them,  a  lire  took 
place  in  the  defendants'  warehouse,  which  consumed  the  whole  of  the 


SECT.  II.]  RUGG   V.   MINETT.  37 

turpentine  knocked  clown  to  the  plaintiffs, — the  casks  not  having  been 
weighed  again  by  the  plaintiffs,  or  gauged  by  the  custom-house  officer. 
While  the  money  paid  by  the  plaintiffs  to  the  defendants  on  account  of 
the  turpentine  remained  in  their  hands,  they  received  notice  from  the 
plaintiffs  not  to  pay  it  over;  and  the  present  verdict  is  composed  of 
that  sum,  deducting  the  £450  paid  on  account  of  the  duty,  which  has 
been  restored  to  the  plaintiffs  by  the  commissioners  of  customs.  The 
question  for  the  opinion  of  the  court  was,  whether  the  plaintiffs  were 
entitled  to  recover  back  the  money  so  paid  to  the  defendants.  If  they 
were,  the  verdict  wras  to  stand  ;  if  not,  a  nonsuit  was  to  be  entered. 

Puller,  for  the  plaintiffs. 

Carr,  for  the  defendants. 

Loud  Ellenborodgh,  C.  J.  The  court  have  already  intimated  their 
opinion  as  to  those  casks  in  the  first  lots  which  were  filled  up,  and  on 
which  nothing  remained  to  be  done  on  the  part  of  the  sellers,  but  only 
the  casks  were  left  to  remain  for  thirty  days  at  the  option  of  the  pur- 
chasers in  the  warehouse  at  the  charge  of  the  sellers  ;  the  payment  of 
the  warehouse  rent,  however,  is  not  material  in  this  case  ;  and  when  the 
casks  were  filled  up  everything  was  done  which  remained  to  be  done 
by  the  sellers.  It  was  necessary,  however,  that  they  should  be  gauged 
before  they  were  removed,  and  the  bungs  were  left  out  for  the  purpose 
of  the  ganger's  doing  his  office,  which  it  was  the  buyer's  business  to 
have  performed  ;  and  therefore,  according  to  the  case  of  Hanson  v.. 
Meyer,  and  the  other  cases,  everything  having  been  done  by  the  sellers 
which  lay  upon  them  to  perform,  in  order  to  put  the  goods  in  a  deliv- 
erable state  in  the  place  from  whence  they  were  to  be  taken  by 
the  buyers,  the  goods  remained  there  at  the  risk  of  the  latter.  But 
with  respect  to  the  other  ten  casks,  as  the  filling  them  up  according 
to  the  contract  remained  to  be  done  by  the  sellers,  the  property  did 
not  pass  to  the  buyers  ;  and  therefore  they  are  not  bound  to  pay  for 
them. 

Le  Blanc,  J.  The  case  is  to  be  considered  as  involving  so  many  dis- 
tinct contracts  as  there  were  distinct  lots  bought  by  the  plaintiffs.  The 
turpentine  wras  purchased  at  so  much  per  cwt.,  and  it  was  to  lie  taken 
according  to  the  weight  marked  on  each  lot;  but  the  casks  were  to  be 
filled  up  by  the  sellers  out  of  turpentine  belonging  to  them,  in  order  to 
make  the  weights  agree  with  the  marks.  I  say  belonging  to  the  sell- 
ers, because  tin'  two  last  casks  were  only  sold  according  as  their  actual 
weights  should  turn  out  to  be,  after  filling  up  the  rest;  and  if  more 
turpentine  had  been  wanted  than  those  casks  could  have  supplied  for 
filling  up  the  rest,  it  must  have  been  settled  which  of  the  respective 
purchasers  was  to  lake  less  than  his  calculated  quantity.  Till  the  sev- 
eral casks  therefore  were  filled  up,  I  consider  the  property  as  remaining 
in  the  sellers.  But  a  certain  number  of  casks  were  tilled  up,  and  with 
respect  to  them  nothing  further  remained  to  be  done  by  the  sellers. 
But  it  was  necessary  that  the  custom-house  officer  should  gauge  them 
before  they  could  be  removed.     Then  the  warehouseman  who  was  act- 


38  HAWES   V.    WATSON.  [CHAP.  II. 

ing  as  the  common  agent  of  the  buyers  and  sellers,  having  filled  up 
those  casks  on  the  part  of  the  sellers,  left  them  unbunged  for  the  pur- 
pose of  the  officer's  gauging  them  and  ascertaining  the  duties,  which 
was  an  act  to  be  done  on  the  part  of  the  buyers,  to  entitle  them  to 
remove  the  goods.  Then,  as  nothing  more  remained  to  be  done  by  the 
sellers  on  those  casks  which  were  filled  up,  they  were  from  that  time  at 
the  risk  of  the  buyers  ;  but  those  which  were  not  filled  up  continued  at 
the  risk  of  the  sellers. 

Bayley,  J.  In  many  cases  it  happens,  where  every  thing  has  been 
done  by  the  sellers  which  they  contracted  to  do,  that  the  property 
passes  to  the  buyers,  though  the  goods  may  still  continue  in  the  actual 
possession  of  the  sellers.  It  lies  upon  the  plaintiff  then  to  make  out 
that  something  still  remained  to  be  done  to  the  goods  by  the  sellers  at 
the  time  when  the  loss  happened.  But  with  respect  to  those  casks 
which  had  been  filled  up,  nothing  remained  to  be  done  but  the  gauging 
by  the  officer  ;  and  as  that  was  to  be  procured  to  be  done  by  the  buyers, 
Acres,  who  left  out  the  bungs  for  the  purpose  of  enabling  the  officer  to 
gauge,  must  be  taken  to  have  acted  as  the  agent  of  the  buyers  for  that 
purpose  ;  and  therefore,  nothing  more  remaining  to  be  done  by  the 
sellers,  the  property  passed.  But  with  respect  to  the  other  casks, 
something  did  remain  to  be  done  by  the  sellers,  namely,  the  filling 
them  up  ;  and  it  is  not  sufficient  for  them  to  say  that  the}7  were  not 
called  upon  to  do  so  by  the  buyers  ;  for  if  they  meant  to  relieve  them- 
selves from  all  further  responsibility,  they  should  have  done  what 
remained  for  them  to  do,  and  until  that  was  done  the  property 
continued  in  them. 

Upon  this  it  was  agreed  that  the  proportion  to  be  allowed  to  the 
plaintiffs  on  the  ten  casks  should  be  settled  out  of  court;  and  that 
the  verdict  should  be  entered  accordingly. 


HAWES  and   Another  v.  WATSON   and   Another. 

In  the  Kino's  Bench,  January  28,  1824. 

[Reported  in  2  Barnewall  $  Cressivell,  540] 

Trovek  for  a  quantity  of  tallow.     Plea,  not  guilty. 

At  the  trial  before  Abbott,  C.  J.,  at  the  London  sittings  after  Michael- 
mas term,  the  following  facts  were  proved  for  the  plaintiffs.  The 
plaintiffs  on  the  25th  of  September,  1823,  purchased  by  contract,  of 
Messrs.  Moberly  &  Bell,  300  casks  of  tallow  at  40*.  per  cwt.  On  the 
27th  of  September,  in  part  execution  of  their  contract,  Moberly  &  Bell 
sent  to  the  plaintiffs  the  following  transfer  note,  signed  by  the  defend- 
ants, who  were  wharfingers:  — 


SECT.  II.]  HAWES   V.   WATSON.  39 

Messrs.  J.  &  B.  Hawes, —  We  have  this  day  transferred  to  your 
account  (by  virtue  of  an  order  from  Messrs.  Moberly  &  Bell),  100 
casks  tallow,  ex  Matilda,  with  charges  from  October  10,  1823.  H.  & 
M.     100  casks. 

The  plaintiffs  then  gave  Moberly  &  Bell  their  acceptance  for  £2880 
the  price  of  the  tallow,  which  was  duly  paid,  aud  afterwards  sold  21 
casks  of  this  tallow,  which  the  defendants  delivered,  pursuant  to  their 
order.  Moberly  &  Bell  stopped  payment  on  the  11th  October,  and 
on  the  14th  the  defendants  received  notice  from  Raikes  &  Co.,  the 
original  vendors  of  the  tallow,  not  to  deliver  the  remaining  casks  to 
Moberly  &  Bell,  or  their  order;  and  the  defendants  in  consequence, 
refused  to  deliver  the  remainder  of  the  tallow  to  the  plaintiffs,  upon 
their  demanding  the  same.  On  the  part  of  the  defendants  it  was 
proved  that  Moberly  &  Bell,  on  the  2Gth  September,  had  purchased 
of  Raikes  &  Co.  100  casks  of  tallow  (the  same  that  were  afterwards 
sold  to  the  plaintiffs)  lauded  out  of  the  Matilda,  lying  at  Wat- 
son's wharf,  at  £2  Is.  per  cwt.  to  be  paid  for  in  money,  allowing  2| 
per  cent  discount,  and  fourteen  days  for  delivery  ;  and  on  the  same 
day  Raikes  &  Co.  gave  a  written  order  upon  the  defendants  to  weigh, 
deliver,  transfer,  or  rehouse  the  tallow.  Moberly  &  Bell  had  not  paid 
for  the  same,  nor  had  it  been  weighed  subsequently  to  this  order. 
Upon  these  facts  it  was  contended  at  the  trial,  on  the  part  of  the 
defendants,  that  they  were  not  bound  to  deliver  to  the  plaintiffs  the 
remaining  seventy-nine  casks  of  tallow,  inasmuch  as  Raikes  &  Co.  had, 
as  between  them  and  Moberly  &  Bell,  a  right  to  stop  them  in  transitu, 
the  delivery  to  Moberly  &  Bell  not  being  perfect,  inasmuch  as  the 
tallow  had  not  been  weighed.  The  Lord  Chief  Justice,  however,  was 
of  opinion  that  whatever  the  question  might  be  as  between  buyer  and 
seller,  the  defendants  having,  by  their  note  of  the  27th  of  September, 
acknowledged  that  they  held  the  tallow  on  account  of  the  plaintiffs, 
could  not  now  dispute  their  title  ;  and  the  plaintiffs  had  a  verdict. 

The  Attorney-General  now  moved  for  a  new  trial,  upon  the  ground 
taken  at  the  trial.  Hanson  v.  Meyer,  6  East,  014,  is  an  authority  to 
show  that  the  absolute  property  in  the  tallow  would  not  vest  in  Moberly 
&  Bell,  the  first  vendee,  until  it  was  weighed.  The  contract  in  that 
case  was  in  terms  similar  to  the  contract  made  between  the  original 
vendors  and  Moberly  &  Bell.  The  weighing  must  precede  the  delivery, 
in  order  that  the  price  may  be  ascertained.  In  that  case  too,  part  of 
the  goods  had  been  weighed  and  delivered,  }Tet  it  was  held  that  the 
vendor  might  retain  the  remainder,  which  continued  unweighed,  in  his 
possession;  and  Shepley  v.  Davis,  5  Taunt.  617,  is  also  an  authority 
to  the  same  effect. 

Abbott,  C.  J.  The  plaintiffs  in  this  case  paid  their  money  upon 
the  faith  of  the  transfer  note,  signed  by  the  defendants,  by  which  they 
acknowledged  that  they  held  the  tallow  as  their  agents.  If  we  were 
now   to  hold   that,   notwithstanding   that   acknowledgment   and    that 


40  HAWES   V.   WATSON.  [CHAP.  IL 

payment,  the  plaintiffs  are  not  entitled  to  recover,  we  should  enable 
the  defendants  to  cause  an  innocent  man  to  lose  his  money.  To  hold 
that  the  doctrine  of  stoppage  in  transitu  applied  to  such  a  case  as  the 
present,  would  have  the  effect  of  putting  au  end  to  a  very  large  por- 
tion of  the  commerce  of  the  city  of  London. 

Batley,  J.  This  appears  to  me  very  different  from  the  ordinary 
case  of  vendor  and  vendee.  In  such  cases  justice  requires  that  the 
vendee  shall  not  have  the  goods  unless  he  pays  the  price.  If  he  can- 
not pay  the  price  the  vendor  ought  to  have  his  goods  back  ;  but  if  the 
question  arises,  not  between  the  original  vendor  and  the  original  ven- 
dee, but  between  the  original  vendor  and  a  purchaser  from  the  vendee, 
that  purchaser  having  paid  the  full  price  for  the  goods,  what  is  the 
honesty  and  justice  and  equity  of  the  case?  Surely,  that  the  vendee 
who  has  paid  the  price,  shall  be  entitled  to  the  possession  of  the  goods. 
I  am  of  opinion  that  when  Messrs.  Raikes  &  Co.  signed  the  order  to 
transfer,  weigh,  and  deliver,  that,  according  to  the  settled  course  aud 
usage  of  trade,  enabled  Moberly  &  Bell  to  sell  the  goods  again. 
There  are  many  cases  in  which  it  has  been  held  that  if  the  first  ven- 
dor does  anything  which  can  be  considered  as  sanctioning  the  sale  by 
his  vendee,  that  destroys  all  right  of  the  former  to  stop  in  transitu. 
Stoveld  v.  Hughes,  14  East,  308  ;  Harman  v.  Anderson,  2  Campb.  243. 

Holkoyd,  J.  I  think  that  the  note  given  by  the  defendants  makes 
an  end  of  the  present  question.  When  that  note  was  given,  the  tal- 
low became  the  property  of  the  plaintiffs,  aud  is  to  be  considered  from 
that  time  as  kept  by  the  defendants  as  the  agents  of  the  plaintiffs,  and 
the  latter  were  to  be  liable  from  the  10th  October  for  all  charges. 
This  case  is  very  different  from  that  of  Hanson  v.  Meyer.  There, 
there  was  a  sale  of  all  the  vendor's  starch  (the  quantity  not  being 
ascertained)  at  £6  per  cwt.  The  order  was  to  weigh  and  deliver  all 
the  vendor's  starch,  and  a  part  having  been  weighed  and  delivered, 
but  not  the  residue,  the  main  question  before  the  court  was,  whether 
the  weighing  and  delivery  of  part  did  or  did  not  in  point  of  law 
operate  as  a  transfer  of  the  property  as  to  the  whole.  The  court  held, 
rightly,  that  it  did  not,  because  there  the  price  of  the  whole  which  was 
to  be  paid  for  by  bills  could  not  be  ascertained  before  it  was  weighed. 
The  delivery  of  part,  therefore,  was  not  a  delivery  of  the  whole,  but 
the  order  was  complied  with  only  as  to  the  part  which  was  weighed 
and  delivered,  and  the  property  in  the  residue  remained  unchanged 
until  something  further  was  done.  It  was  not  a  delivery  of  part  for 
the  whole,  and  therefore  it  did  not  operate  in  law  as  a  delivery  of  the 
whole  so  as  to  devest  the  vendor  of  his  right  to  stop  in  transitu;  but 
here,  the  wharfingers,  upon  the  receipt  of  the  order  directing  them  to 
weigh  and  deliver,  sent  an  acknowledgment  that  they,  the  wharfingers, 
had  transferred  the  goods  to  the  vendees,  and  that  they  would  be 
considered  as  subjecl  to  charges  from  a  certain  period.  I  think,  there- 
fore, that  the  Wharfinger  then  held  the  tallow  as  the  goods  of  the  plain- 
tiH's  and  as  their  agents,  although  there  was  not  any  actual   weighing 


SECT.  II.]  SIMMONS   V.    SWIFT.  41 

of  them  ;  and  that  the  plaintiffs  were  then  in  possession  by  the  defend- 
ants as  their  agents,  they  having  acknowledged  themselves  as  such  by 
their  note.  For  these  reasons  I  am  of  opinion  that  the  plaintiffs  are 
entitled  to  recover. 

Best,  J.  I  am  also  of  opinion  that  the  acknowledgment  which  has 
been  given  in  evidence  puts  an  end  to  all  question  in  this  case.  .  .  . 
It  appears  to  me,  too,  that  if  we  consider  the  principle  upon  which  the 
right  of  stoppage  in  transitu  is  founded,  it  cannot  extend  to  such  a 
case  as  the  present.  The  vendee  has  the  legal  right  to  the  goods  the 
moment  the  contract  is  executed,  but  there  still  exists  iu  the  vendor 
an  equitable  right  to  stop  them  in  transitu,  which  he  may  exercise  at 
any  time  before  the  goods  get  actually  into  the  possession  of  the  ven- 
dee, provided  the  exercise  of  that  right  does  not  interfere  with  the 
rights  of  third  persons.  Now  it  appears  to  me  impossible  that  it  can 
be  exercised  in  this  case  without  disturbing  the  rights  of  third  persons, 
for  the  property  has  not  only  been  transferred  to  the  purchaser  in  the 
books  of  the  wharfingers,  but  there  has  been  an  acknowledgment  by 
them  that  they  hold  it  for  the  purchaser,  who  has  paid  the  price  of  it. 
It  has  been  said  that  there  has  been  no  change  of  property.  If  there 
has  not,  I  do  not  see  how  there  can  be  any  until  the  tallow  is  actually 
melted  down  and  converted  into  candles.  If  the  argument  on  the  part 
of  the  defendants  be  valid,  the  vendor,  if  he  is  not  fully  paid,  has  a 
right,  if  the  goods  are  not  weighed,  to  stop  in  transitu,  even  though 
they  have  passed  through  the  bauds  of  a  hundred  different  purchasers 
and  been  paid  for  by  all  except  the  first.  It  appears  to  me  that  we  should 
disturb  an  established  principle  if  we  held  that  this  could  be  done  in 
such  a  case  as  the  present.  I  think  the  right  of  stoppage  in  transitu  is 
an  equitable  right,  to  be  exercised  by  the  vendor  only  when  it  can  be 
done  without  disturbing  the  rights  of  third  persons.  Here,  that  can- 
not be  done,  and  therefore  I  think  that  Raikes  &  Co.  had  not  any  right 
to  stop  in  transitu,  and  that  the  plaintiffs  are  therefore  entitled  to 
recover.  Rule  discharged. 


HENRY   SIMMONS   v.   HEZEKIAII    SWIFT. 
Ix  the  King's  Bench,  Trinity  Term,  1826. 

[Reported  in  5  Barnt  wall  $•  Cresswell,  857  ] 

Indebitatus  assumpsit  for  bark  sold  and  delivered  ;  the  usual  money 
counts,  and  a  count  upon  an  account  stated.  At  the  trial  before  Little- 
dale,  J.,  at  the  spring  assizes  for  the  county  of  Monmouth.  1826,  the 
jury  found  a  verdict  for  the  plaintiff  for  the  sum  of  £106  3s.  8d.,  sub- 
ject to  the  opinion  of  this  court  upon  the  following  case:  The  plain- 
tiff a nd  defendant  were  both  dealers  in  timber  and  hark,  the  plaintiff 
residing  at  Whitebrook  in  Monmouthshire,  and  the  defendant  in  the 


42  SIMMONS   V.    SWIFT.  [CHAP.  IL 

town  of  Monmouth.  Previously  to  the  23d  of  October,  1824,  the 
plaintiff  was  possessed  of  a  quantity  of  oak  bark,  which  was  stacked 
at  a  place  called  Redbrook,  ou  the  banks  of  the  river  Wye,  about  two 
miles  below  the  town  of  Monmouth,  and  which,  in  July  preceding, 
weighed  twenty  tons.  Upon  the  23d  of  October,  the  following  agree- 
ment for  the  sale  of  the  said  bark  was  signed  by  the  plaintiff  and  the 
defendant:  "I  have  this  day  sold  the  bark  stacked  at  Redbrook,  at 
£D  bs.  per  ton  of  twenty-one  hundred-weight,  to  Hezekiah  Swift, 
which  he  agrees  to  take,  and  pay  for  it  on  the  30th  of  November." 

It  was   afterwards  verbally    agreed  between  the  parties  that   one 
William    Simmons,   a  brother  of   the    plaintiff,   should  see  the  bark 
weighed  on  behalf  of  the  plaintiff,  and  one  James  Diggett  should  see 
it  weighed  on  behalf  of  the   defendant.     Within  five  days  after  the 
signing  of  this  agreement,  the  defendant  sent  several  of  his  barges  and 
his  servants  to  Redbrook,  and  took  a  quantity  of  the  bark,  amounting 
to  8  tons  14  cvvt.     He  sent  for  William  Simmons  who  was  at  work  in 
a  wood  near  to  Redbrook,  to  see  the  bark  weighed  on  behalf  of  his 
brother,  which  William  Simmons  accordingly  did,  and  was  paid  for  his 
trouble    by   his  brother's  wife.     William    Simmons    said    he  was    not 
directed  by  his  brother  to  see  the   bark  weighed,  and  did  not  know 
that  it  had  been  sold  until  he  was  fetched  from  the  wood  by  the  defend- 
ant's messenger.     James  Diggett  attended  the  weighing  on  the  part  of 
the  defendant.     The  bark  so  taken  by  the  defendant  was  carried  by 
his  barges  down  the  river  Wye  to  Chepstow.     The  remainder  of  the 
stack  was  covered  with  a  tarpaulin  belonging  to  the  defendant,  but 
which  tarpaulin  had  been  upon  the  premises  at  Redbrook,  having  been 
lent  by  the  defendant  for  that  purpose  to  the  person  who  sold  the  bark 
to  the  plaintiff  ;  and  had  been  used  to  cover  a  part  of  the  stack  before 
the  signing  of  the  agreement  by  the  plaintiff  and  defendant.     About 
eight  or  nine  days  after  part  of  the  bark  had  been  so  removed  by  the 
defendant,  a  Mr.  James  Madley,  upon  whose  premises  at  Redbrook  the 
baik  was  stacked,  met  the  defendant,  and  asked  him  when  he  intended 
to  take  the  remainder  of  the  bark  away,  as  it  was  stacked  over  part  of 
a  saw-pit  which  he,  Madley,  wanted  to  use;  the  defendant  answered 
that  he  should  have  it  taken  away  in  a  few  days.     The  defendant  did 
not  at   any  time  take    away  the   remainder   of   the   bark,  nor  was   it 
weighed.     Towards  the  latter  end  of  November  there  was  an  extraor- 
dinary flood,  which  overflowed  the  banks  of  the  river  Wye,  and  rose 
nearly  to  the  height  of  five  feet  around  the  remainder  of  the  stack  of 
bark,  and  did  it  very  considerable  injury.     There  was  sufficient  time 
for  the  defendant  to  have  removed  the  whole  of  the  bark  before  the 
flood  happened.      The  defendant  was  seen  examining  the  remainder  of 
the  bark  alter  it  had  been  injured  by  the  Hood,  and  the  tarpaulin  before 
mentioned  remained  upon  the  bark  until  the  28th  of  January,  1825, 
when   it  was   removed    by  some  of  the  defendant's  servants  who  were 
passing  up  the  river  in  a  barge.      ( )n  the  fourth  day  of  December,  L824, 
the  i  hunt  ill' called  at  the  defendant's  counting-house,  and   the  defend- 


SECT.  II.]  SIMMONS   V.    SWIFT-  43 

ant  said  he  was  ready  to  pay  for  the  bark  which  had  been  removed, 
viz.,  8  tous  14  cwt.,  and  by  the  plaintiff's  direction  an  account  wus 
made  out  of  the  hark  which  the  defendant  had  taken  away  as  afore- 
said, and  the  defendant  paid  the  amount  by  a  check,  which  was  duly 
honored.  The  plaintiff  signed  the  account  as  settled,  but  at  the  same 
time  said  that  no  advantage  should  he  taken  of  his  so  doing,  and 
required  the  defendant  to  take  and  pay  for  the  rest  of  the  bark,  which 
he  refused  to  do.  Bark  is  an  article  which  varies  very  considerably  in 
weight  according  as  the  air  is  moist  or  dry,  and  according  to  the  sea- 
son of  the  year.  The  question  at  the  trial  was,  whether  the  plaintiff 
was  entitled  to  recover  in  this  action  for  the  bark  which  remained 
standing  at  Kedbrook.  According  to  the  weight  of  the  bark  in  July 
preceding,  a  quantity  remained  which,  at  the  price  mentioned  in  the 
agreement  of  23d  of  October,  1-S24,  amounted  to  the  sum  of  <^T06  5s. 
8(/. ,  fur  which  tiie  verdict  was  taken. 

Oldnatt  Russell,  for  the  plaintiff. 

Campbell,  contra. 

Batley,  J.  Two  questions  are  involved  in  this  case  :  first,  whether 
the  property  in  the  bark  was  vested  in  the  defendant,  so  as  to  throw 
all  risks  upon  him  ;  secondly,  whether  there  had  been  such  a  delivery  of 
the  bark  as  would  support  this  form  of  action.  It  is  not,  perhaps,  ne- 
cessary to  give  any  opinion  upon  the  first  point,  but  I  think  it  right  to  do 
so,  as  it  is  most  satisfactory  to  determine  the  case  upon  the  main 
ground  taken  in  argument.  I  think  that  the  property  did  not  vest  in  the 
defendant  so  as  to  make  him  liable  to  bear  the  loss  which  has  occurred. 
Generally  speaking,  where  a  bargain  is  made  for  the  purchase  of  goods, 
and  nothing  is  said  about  payment  or  delivery,  the  property  passes 
immediately,  so  as  to  cast  upon  the  purchaser  all  future  risk,  if  nothing 
further  remains  to  be  done  to  the  goods  ;  although  he  cannot  take  them 
away  without  paying  the  price.  If  anything  remains  to  be  done  on  the 
part  of  the  seller,  until  that  is  done  the  property  is  not  changed.  In 
Kugg  v.  Minett,  11  East,  210,  and  Wallace  v.  Breeds,  13  East,  522,  the 
thing  which  remained  to  be  done  was  to  vary  the  nature  or  quantity  of 
the  commodity  before  delivery  ;  that  was  to  be  done  by  the  seller. 
In  other  cases  the  thing  sold  was  to  be  separated  from  a  larger  quantity 
of  the  same  commodity.  This  case  was  different ;  the  subject-matter 
of  the  sale  was  clearly  ascertained.  The  defendant  agreed  to  buy  the 
bark  stacked  at  Kedbrook,  meaning  of  course  all  the  bark  stacked 
there;  but  it  was  to  be  paid  for  at  a  certain  price  per  ton.  The  bar- 
gain does  not  specify  the  mode  in  which  the  weight  was  to  be  ascer- 
tained, but  it  was  necessary  that  it  should  he  ascertained  before  the 
price  coul. 1  be  calculated,  and  the  concurrence  of  the  seller  in  the  act 
of  weighing  was  necessary.  lie  might  insist  upon  keeping  possession 
until  the  bark  had  been  weighed.  If  he  was  anxious  to  get  rid  of  the  lia- 
bility to  accidental  loss,  he  might  give  notice  to  the  buyer  that  he  should 
at  a  certain  time  weigh  the  bark,  but  until  that  actwasdoneil  remained 
at  his  risk.     In  Hanson  v.  Meyer,  6  East,  GU,  weighing  was  the  only 


44  SIMMONS    V.    SWIFT.  [CHAP.  IL 

thing  that  remained  to  be  done  ;  there  was  not  any  express  stipulation 
in  the  contract  that  the  starch  (the  subject-matter  of  that  contract) 
should  be  weighed  ;  that  was  introduced  in  the  delivery  order,  but  the 
nature  of  the  contract  made  it  necessary.  So  here  the  contract  made 
weighing  necessary,  for  without  that  the  price  could  not  be  ascertained. 
Suppose  the  plaintiff  had  declared  specially  upon  this  contract,  he  must 
have  alleged  and  proved  that  he  sold  the  bark  at  a  certain  sum  per  ton, 
that  it  weighed  so  many  tons,  and  that  the  price  in  the  whole  amounted 
to  such  a  certain  sum.  The  case  of  Hanson  v.  Meyer  differs  from  this 
in  one  particular;  viz.,  that  the  assignees  of  the  vendee,  who  had 
become  bankrupt,  were  seeking  to  recover  the  goods  sold  ;  but  the  lan- 
guage of  Lord  Ellenborough  as  to  the  necessity  of  weighing  in  order 
to  ascertain  the  price  before  the  property  could  be  changed  is  applica- 
ble to  the  present  case,  and  decides  it.  I  therefore  think  that  the  bark 
which  remained  unweighed  at  the  time  of  the  loss  was  at  the  risk  of 
the  seller ;  and  even  if  the  property  had  vested  in  the  defendant,  I 
should  have  thought  that  it  had  not  been  delivered,  and  consequently 
that  the  price  could  not  be  recovered  on  a  count  for  goods  sold  and 
delivered. 

Holhoyd,  J.  I  also  think  that  the  plaintiff  cannot  recover.  By  a 
contract  for  the  sale  of  specific  goods,  it  is  true,  as  a  general  position, 
that  the  property  is  changed,  although  the  seller  has  a  lien  for  the 
price,  unless  the  contract  is  for  a  sale  upon  credit ;  then  the  goods  re- 
main at  the  risk  of  the  buyer.  But  Hanson  v.  Meyer  is  a  direct 
authority  that  in  such  cases  as  the  present  the  seller  does  not  part  with 
the  goods  until  the  weighing  has  been  accomplished.  Secondly,  1  think 
that  the  bark  was  not  delivered.  If  there  was  a  delivery  the  seller 
could  have  no  lieu  for  the  price,  even  if  the  contract  did  not  make  the 
bark  deliverable  until  the  30th  of  November  ;  there  was  neither  a  per- 
formance of  the  weighing  nor  an  offer  to  perform  it. 

Littledale,  J.  I  entertain  some  doubt  whether  the  property  did 
not  pass  by  this  contract ;  and  that  doubt,  as  it  seems  to  me,  is  not  in- 
consistent with  the  decision  in  Hanson  v.  Meyer.  The  question  there 
was,  whether  the  assignees  of  the  purchaser  had  a  right  to  call  for  a 
delivery  of  the  goods  sold.  Lord  Ellenborough  said  payment  of  the 
price  and  the  weighing  of  the  goods  necessarily  preceded  the  absolute 
vesting  of  the  property;  which  expression  I  take  to  have  been  used 
with  reference  to  the  then  question,  viz.,  whether  the  property  had  so 
vested  in  the  purchaser  as  to  entitle  his  assignees  to  claim  the  deliv- 
ery. So  in  this  case,  although  the  property  might  vest  in  the  pur- 
chaser, it  would  not  follow  that  he  could  enforce  a  delivery  until  the 
weight  of  the  bark  had  been  ascertained  and  the  price  paid.  Here 
there  was  not  a  delivery  in  fact,  nor  was  the  delivery  of  part  a  con- 
structive delivery  of  the  whole.  This  (lifters  from  the  cases  of  lien 
or  stoppage  in  transitu^  in  which  it  may  be  considered  that  a  delivery 
of  part  is  in  the  nature  of  a  waiver  of  the  lien,  or  right  to  stop  in  tran- 
situ.    1  think  further  that  an  action  for  goods  bargained  and  sold 


SECT.  II.]  SWANWICK   V.    BOTHERN.  45 

would  not  lie  merely  because  the  property  passed.  The  mere  bargain 
would  not  sullice,  because  no  specific  price  was  fixed  ;  nor  could  the 
plaintiff  recover  on  a  quantum  vtdebat,  for  the  contract  was  to  pay 
by  weight;  and  therefore,  until  the  commodity  was  weighed,  there 
would  be  nothing  to  guide  the  jury  in  the  amount  of  damages  to  be 
given.  The  seller  was  at  all  events  bound  to  offer  to  weigh  the  bark, 
but  he  uever  did  so.     For  these  reasons  I  think  he  cannot  recover. 

Poaltn  to  the  defendant. 


SWANWICK   and   Another  v.  SOTHERN   and   Others. 
In  the  Queen's  Bench,  February  6,  1839. 

[Reported  in  9  Adolphus  fr  Ellis,  895.] 

Trover  for  1028  bushels  of  oats.  Pleas:  1.  Not  guilty;  2.  That 
the  oats  were  not  the  property  of  the  plaintiffs,  in  manner  and  form, 
&c.  Issues  thereon.  On  the  trial  before  Patteson,  J.,  at  the  Liverpool 
Spring  Assizes,  1837,  the  material  facts  appeared  to  be  as  follows  : 
The  plaintiffs  were  corn  dealers  at  Manchester  ;  the  defendants  carried 
on  the  business  of  wharfingers  at  the  Duke's  Quay,  in  the  same  town. 
The  oats  in  question  being  in  a  warehouse  of  the  defendants  were  sold 
by  Turner  &  Co.,  the  owners,  to  John  Marsden,  and  the  following  de- 
livery order  given,  addressed  to  the  warehouse-keeper  :  — 

Mr.  Wm.  Eaton,  Duke's  Quay : 

Deliver  Mr.  John  Marsden  10284J  bushels  oats,  bin  40,  O.  W.,  and 
you  will  please  weigh  them  over  and  charge  us  the  expense. 

Joseph  Turner  &  Co. 

October  3d,  1836. 

The  warehouse-keeper  entered  this  order  in  his  book,  and  on  October 
5th  he  received  the  following  order  from  John  Marsden :  — 

Mr.  Wm.  Eaton,  Duke's  Quay  : 

Deliver  Messrs.  Swanwick  &  Hall  1028^?  bushel  oats,  in  bin  40,  O. 
Warehouse  ;  and  let  them  be  weighed  over  and  send  a  note  up.  I  will 
see  it  paid. 

Fr.  &  Jno.  Marsden. 

Manchester,  5th  Oct.,  1836. 

Swanwick  and  Hall,  the  plaintiffs,  accepted  a  bill  drawn  by  Marsden, 
October  7,  18:50,  for  the  value  of  the  oats,  which  was  duly  honored. 
Eaton  entered  the  order  of  October  5  in  his  book,  and  said  to  the  party 
delivering  it  that  all  would  be  right,  and  he  would  attend  to  the  order. 
The  oats  were  transferred  to  the  plaintiffs  in  the  defendant's  books,  but 
without  weighing  over.     There  were  no  oats  in  bin  40  but  the  quantity 


46  SWANWICK   V.   SOTHEKN.  [CHAP.  II. 

mentioned  in  the  order.  Eaton  stated,  at  the  trial,  that  from  the  5th 
to  the  12th  of  October  the  oats  would  have  been  delivered  to  the  plain- 
tiffs if  required.  Marsden  becoming  insolvent,  Turner,  on  October  12, 
gave  the  defendants  notice  not  to  part  with  the  oats  ;  and  on  the  14th 
the  defendants  gave  them  up  to  Turner  oil  an  indemnity.  At  that  time, 
and  not  before,  they  were  weighed  over,  and  they  were  found  to  be  two 
bushels  short  of  the  weight  mentioned  in  the  orders.  It  was  proved  at 
the  trial  that  the  defendants  did  not  consider  themselves  bound  to 
weigh,  and  were  not  used  to  weigh,  till  delivery,  when  the  grain  was 
weighed  to  ascertain  any  loss  of  quantity.  The  question  was,  whether, 
without  weighing,  the  property  was  sufficiently  transferred  to  vest  in 
the  plaintiffs  ;  or  whether,  on  October  14,  Turner  still  had  a  right  to 
stop  m  transitu.  Patteson,  J.,  thought  that,  on  the  above  state  of 
facts,  the  plaintiffs  were  entitled  to  recover,  but  he  gave  leave  to  move 
for  a  nonsuit ;  and  the  plaintiffs  had  a  verdict.  In  Easter  term,  1837, 
a  rule  nisi  was  obtained  for  a  nonsuit  or  a  new  trial.  In  Hilary  term, 
1839, 

Cresswell  and  Tomlinson  showed  cause. 

Wightman  and  W.  H.   Watson,  contra.  Cur.  adv.  vult. 

Lord  Denman,  C.  J.,  now  delivered  the  judgment  of  the  court. 

The  question  in  this  case  turns  upon  the  construction  of  two  delivery 
orders.  [His  Lordship  then  read  the  orders  set  out,  p.  45,  ante.] 
The  oats  were  all  that  were  in  bin  40.  They  were  transferred  to  the 
plaintiffs  in  the  defendants'  books,  but  never  weighed  over.  The  plain- 
tiffs had  accepted  a  bill  for  the  price,  which  they  duly  honored.  On 
Marsden's  failure,  Messieurs  Turner  sought  to  stop  them  ;  and  the  only 
question  is,  whether  weighing  over  was  in  this  case  necessary  in  order 
to  vest  the  property  in  the  plaintiffs  and  defeat  the  stoppage  in  transitu. 
Neither  of  the  contracts  of  sale  was  given  in  evidence. 

The  cases  on  this  subject  establish  the  principle  that  wherever  any 
thing  remains  to  be  done  by  the  seller  which  is  essential  to  the  com- 
pletion of  the  contract,  a  symbolical  delivery  by  transfer  in  the  wharf- 
inger's books  will  not  defeat  the  right  of  stoppage  in  transitu  as  be- 
tween  buyer  and  seller.  Hanson  v.  Meyer,  (J  East,  614,  Shepley  v. 
Davis,  5  Taunt.  017,  Busk  v.  Davis,  2  M.  &  S.  397,  abundantly  show 
this.  Therefore,  if  part  of  a  bulk  be  sold,  so  that  weighing  or  separa- 
tion is  necessary  to  determine  the  identity  or  individuality  (as  Lord 
Ellenborough  expresses  it  in  Busk  v.  Davis,  2  M.  &  S.  397)  of  the 
article,  or  if  the  whole  of  a  commodity  be  sold,  but  weighing  is  neces- 
sary to  ascertain  the  price,  because  the  quantity  is  unknown,  the 
weighing  or  measuring  must  precede  the  delivery,  and  the  symbolical 
delivery  without  snch  weighing  will  not  lie  sufficient. 

But  when-  the  identity  of  the  goods  and  the  quantity  are  known,  the 
weighing  can  only  be  for  the  satisfaction  of  the  buyer,  as  was  held  in 
Hammond  '••  Anderson,  1  New  Rep.  <">!»;  and  in  such  case  the  trans- 
fer in  the  book  of  the  wharfinger  is  sufficient.     AVe  are  of  opinion  that 


SECT.  II.]  TURLEY   V.    BATES.  47 

the  present  case  is  of  the  latter  description,  and  that  this  property 
passed  as  between  buyer  and  seller.  We  have  therefore  no  occasion  to 
resort  to  the  doctrine  of  estoppel,  which  is  strongly  enforced  in  Hawes 
v.  Watson,  2  B.  &  C.  540  ;  but  we  do  not  mean,  in  so  saying,  to  cast 
any  doubt  upon  the  authority  of  that  case.  Under  these  circumstances 
the  rule  for  a  nonsuit  must  be  discharged. 

Hide  discharged. 


TURLEY   v.   BATES. 
In  the  Exchequer,  June  6,  1863. 

[Reported  in  2  Hurlstone  Sf   Coltmun,  200.] 

The  declaration  contained  a  special  count,  alleging  that  the  plaintiff 
bargained  and  sold,  and  the  defendant  bought  from  the  plaintiff,  a 
quantity  of  fire-clay  then  deposited  on  certain  land  of  the  plaintiff,  at 
the  price  of  two  shillings  per  ton,  upon  the  terras  that  the  defendant 
should  take  away  the  goods,  and  pay  for  the  same  within  a  reasonable 
time.  It  then,  after  averring  that  all  conditions  had  been  fulfilled  to 
entitle  the  plaintiff  to  have  the  goods  taken  away  and  accepted  by  the 
defendant,  and  that  the  defendant  took  away  and  accepted  a  part  of 
the  goods  under  the  contract,  alleged  as  a  breach  that  the  defendant 
would  not  take  away  and  accept  the  residue  of  the  said  goods,  or  pay 
for  the  same,  whereby  the  plaintiff  lost  the  price  and  profit  he  would 
have  made. 

The  declaration  also  contained  counts  for  goods  bargained  and  sold, 
goods  sold  and  delivered,  and  on  an  account  stated. 

The  defendant,  as  to  the  first  count,  pleaded  a  denial  of  the  buying 
and  selling,  and  of  the  plaintiff's  readiness  to  deliver  and  suffer  the  de- 
fendant to  take  away  the  residue.  To  the  rest  of  the  declaration  he 
pleaded  never  indebted  and  a  set-off. 

The  cause  was  tried,  before  Channell,  B.,  at  the  Middlesex  sittings 
after  last  Easter  term,  when  the  following  facts  appeared,  as  stated 
in  the  judgment.  The  plaintiff  was  an  iron  and  coal  master  at 
Cosely,  in  Staffordshire.  In  the  year  1854,  and  between  that  and  the 
year  1857,  he  excavated  and  raised  from  his  colliery,  the  Cosely  Moore 
Colliery,  a  quantity  of  fire-clay.  This  clay  was  stacked  in  a  heap  on 
land  of  the  plaintiff  near  to  the  bank  of  his  colliery.  Before  December, 
1860,  a  portion  of  this  heap  had  been  sold  and  removed.  In  that  month 
a  quantity,  estimated  by  the  plaintiff  at  about  1,500  tons,  still  remained 
stacked  in  the  heap.  The  defendant  had  before  this  time  bought  of  the 
plaintiff,  and  carted  and  carried  away,  portions  of  the  heap.  On  several 
occasions,  in  December,  1860,  the  plaintiff  and  defendant  met.  and  a 
bargain  was  come  to  with  respect  to  the  clay.  This  bargain  was  on 
some  points  differently  represented  by  the  evidence  for  the  plaintiff  and 
by  that  of  the  defendant. 


48  TUKLEY   V.    BATES.  [CHAP.  II. 

According  to  the  case  for  the  plaintiff,  the  bargain  concluded  was  for 
the  sale  and  purchase  of  the  entire  heap  as  then  stacked,  at  the  price  of 
two  shillings  per  ton,  —  the  plaintiff  being  willing  to  take  that  price,  in- 
stead of  a  higher  one  which  he  had  demanded,  provided  the  whole  heap 
was  taken  away,  so  that  the  ground  might  be  cleared  ;  that  the  defend- 
ant was,  at  his  own  expense,  to  load  and  cart  it  away  ;  and  that  the 
clay,  when  on  its  way  to  the  defendant's  premises,  was  to  be  weighed  at 
a  weighing  machine  belonging  to  one  Johnson,  which  machine  the  de- 
fendant's carts  would  pass  on  their  way  ;  and  that  the  defendant  was  to 
pay  for  the  weighing. 

It  was  not  denied,  on  the  part  of  the  defendant,  that  a  bargain  was 
made  to  pay  for  such  clay  as  he  might  take  away  at  the  rate  of  two 
shillings  per  ton,  nor  that  such  cla}-  was  to  be  carted  and  weighed  at  his 
own  expense  ;  but  it  was  contended  by  the  defendant  that  the  bargain 
was  not  for  the  whole  heap  as  it  stood,  but  only  for  such  portion  of  the 
clay  as  the  defendant  chose  to  send  for  and  cart  away,  and,  after  having 
it  weighed  at  Johnson's  machine,  to  pay  for  it  at  the  rate  aforesaid.  No 
point  was  made  on  the  Statute  of  Frauds,  that  the  contract  was  not  in 
writing :  whether  the  verbal  bargain  was  for  the  whole  or  for  only  a 
portion  of  the  stack  was  the  principal  question  in  the  cause.  It  was, 
however,  further  contended  by  the  defendant  that,  whatever  the  quantity 
contracted  to  be  bought,  it  was  bought  on  a  warranty  by  the  plaintiff 
that  the  clay  would  stand  a  red  heat. 

After  the  bargain  the  defendant  at  different  times,  as  he  thought  fit, 
carted  away  portions  of  the  clay,  in  the  whole  about  270  tons.  On  the 
three  or  four  first  occasions  of  carting  away,  the  clay  was  weighed  at 
Johnson's  machine.  On  one  occasion,  the  last,  and  without  any  notice 
to  the  plaintiff,  clay  was  loaded  by  the  defendant's  servants  and  carted 
away  in  an  opposite  direction  to  the  weighing  machine,  and  such  clay 
was  taken  to  a  canal,  where  it  was  loaded  into  a  boat  and  taken  by  water 
carriage  to  Liverpool.  The  plaintiff,  whilst  the  defendant's  men  were 
carting  this  last  clay,  saw  them  and  followed  them,  and  the  clay  was 
gauged  on  the  barge  in  the  plaintiff's  presence  at  twenty-two  tons. 

Evidence  was  given,  on  the  part  of  the  defendant,  that  the  clay  which 
had  boon  taken  away  by  him  had  been  used  in  his  business,  and  did  not 
answer  the  warranty  alleged  to  have  been  given.  On  this  ground  also 
he  denied  his  liability  to  take  or  pay  for  more  than  had  been  removed. 
This  evidence  became  immaterial,  as  the  learned  judge  ruled  there  was 
no  evidence  of  a  warrant}'. 

All  the  clay  so  taken  away  by  the  defendant  had  either  been  paid  for 
before  action  brought  or  was  covered  by  a  set-off. 

The  learned  judge  left  to  the  jury  the  question  what  was  the  bargain  ; 
and  they  found  for  the  plaintiff,  that  the  bargain  was  a  bargain  for  the 
whole.  It  was  then  further  objected  by  the  defendant,  that,  assuming 
that  the  verbal  bargain  was  for  the  sale  of  the  whole  of  the  stack  of  clay, 
and  further  that  there  was  no  defence  on  the  ground  of  warranty,  yet, 
as  the  clay  sought  to  be  recovered  for  had  never  been  weighed  at  John- 


SECT.  II.]  TUKLEY   V.    BATES.  49 

son's  machine,  the  count  for  goods  bargained  and  sold  could  not  be 
maintained  ;  and  that,  in  the  absence  of*  any  evidence  of  any  fall  in  the 
value  of  clay  or  other  loss  by  reason  of  not  taking  it  away,  the  plaintiff 
could,  at  most,  recover  only  nominal  damages. 

No  evidence  of  any  actual  loss  or  damage  was  given,  and  a  verdict 
was  then  entered  for  the  plaintiff,  by  consent,  for  the  sum  of  £112  10s. 
6rf.,  as  the  estimated  value  of  the  clay  not  removed,  at  the  contract  price 
of  two  shillings  per  ton,  —  leave  being  reserved  to  the  defendant  to  limit 
the  verdict  to  the  first  count,  and  to  nominal  damages  on  that  count  in 
case  this  court  should  be  of  opinion  that  the  plaintiff  was  only  entitled 
to  recover  on  that  count. 

In  last  Easter  term  a  rule  for  a  new  trial,  on  the  ground  of  misdirec- 
tion on  the  point  of  warranty,  was  applied  for  and  refused  ;  but  a  rule 
nisi  was  granted,  pursuant  to  the  leave  reserved,  to  limit  the  verdict  to 
the  first  count  and  reduce  the  damages  to  nominal  damages  ;  against 
which 

Pigott,  Serjt.,  and  H.  James  showed  cause  in  the  present  term 
(June  6). 

Overend  and  Quain,  in  support  of  the  rule. 

Cur.  adv.  vult. 

The  judgment  of  the  court  was  delivered,  in  the  followiug  Michaelmas 
vacation  (December  6),  b}T 

Chaxnell,  B.  This  was  an  action  tried  before  me  at  the  Middlesex 
sittings,  in  last  Easter  term.  (His  Lordship  then  stated  the  pleadings, 
and  proceeded.)  At  the  trial  a  verdict  was  found  for  the  plaintiff,  dam- 
ages £112  10s.  6<7.,  with  leave  reserved  to  the  defendant  to  move  to 
reduce  the  verdict  to  nominal  damages  on  the  ground  hereinafter  men- 
tioned. (His  Lordship  then  stated  the  facts  as  above  set  forth.)  This 
rule  was  argued  before  the  Lord  Chief  Baron,  my  brother  Bramwell, 
and  myself. 

For  the  plaintiff  it  was  contended  that  where  full  authority  was  given 
to  the  buyer  to  remove  the  clay  sold,  and  all  that  the  seller  had  to  do 
according  to  the  contract  was  complete,  and  where  everything  that  re- 
mained to  be  done  was  to  be  done  by  the  buyer  at  his  own  expense  ; 
viz.,  as,  in  this  case,  to  cart  away  and  have  the  clay  weighed  at  his  own 
expense,  it  must  be  taken  as  if  there  had  been  such  a  bargain  and  sale 
as  to  pass  the  property,  though  the  clay  had  not  been  removed  and 
weighed,  and  that  the  contract  price  might  be  recoverable  on  the  count 
for  goods  bargained  and  sold. 

For  the  defendant  it  was  contended  that,  taking  the  case  on  the  plain- 
tiff's evidence,  and  as  found  by  the  jury,  that  there  had  been  a  removal 
and  weighing  of  part  of  the  clay,  yet  no  property  passed  in  any  clay 
until  the  clay  had  been  weighed  at  Johnson's  machine,  and  the  quantity 
and  price  thus  ascertained,  so  as  to  entitle  the  plaintiff  to  recover  on  the 
count  for  goods  bargained  and  sold. 

In  the  course  of  the  argument  for  the  defendant  we  were  referred  to 

4 


50  TCRLEY   V.    BATES.  [CHAP.  II. 

several  cases  decided  in  our  courts,  which  were  said  to  govern  the  ques- 
tion, and  to  a  passage  from  my  brother  Blackburn's  Treatise  on  Contract 
of  Sale,  part  2,  ch.  2,  p.  152.  It  was  argued  that  the  rule  deducible 
from  these  authorities  was,  that  so  long  as  a  price  had  been  agreed  upon 
according  to  quantity,  to  be  ascertained  by  weighing,  that  until  the 
goods  had  been  weighed,  and  the  price  so  ascertained,  the  contract  was 
incomplete  ;  which  rule  it  was  said  was  in  accordance  with  the  rule  given 
in  Pothier,  Coutr.  de  Vente,  with  Kent's  Commentaries,  vol.  2,  p.  496, 
New  York  edition,  1848,  the  Code  Civil,  liv.  iii.,  tit.  vi.,  ch.  1,  art.  1585, 
1586,  1587. 

The  rule  as  stated  in  Blackburn  on  Contract  of  Sale,  p.  152,  is,  "  that 
where  anything  remains  to  be  done  to  the  goods  for  the  purpose  of  ascer- 
taining the  price,  as  by  weighing,  measuring,  or  testing  the  goods,  where 
the  price  is  to  depend  on  the  quantity  or  quality  of  the  goods,  the  per- 
formance of  these  things,  also,  shall  be  a  condition  precedent  to  the 
transfer  of  the  property,  although  the  individual  goods  be  ascertained, 
and  they  are  in  the  state  in  which  the}'  ought  to  be  accepted." 

After  adverting  to  the  rule  as  one  wholly  adopted  from  the  civil  law, 
the  learned  author  (at  page  153)  says  :  "  In  general,  the  weighing,  &c, 
must  from  the  nature  of  things  be  intended  to  be  done  before  the  buyer 
takes  possession  of  the  goods,  but  that  is  quite  a  different  thing  from 
intending  it  to  be  done  before  the  vesting  of  the  property  ;  and  as  it 
must  in  general  be  intended  that  both  the  parties  shall  concur  in  the  act 
of  weighing  when  the  price  is  to  depend  on  the  weight,  there  seems  little 
reason  why,  in  cases  where  the  specific  goods  are  agreed  upon  it  should 
be  supposed  to  be  the  intention  of  the  parties  to  render  the  delay  of 
that  act,  in  which  the  buyer  is  to  concur,  beneficial  to  him.  Whilst  the 
price  remains  unascertained,  the  sale  is  clearly  not  for  a  certain  sum  of 
money,  and  therefore  does  not  come  within  the  civilian's  definition  of  a 
perfect  sale,  transferring  the  risk  and  gain  of  the  tiling  sold  ;  but  the 
English  law  does  not  require  that  the  consideration  for  a  bargain  and 
sale  should  be  in  moneys  numbered,  provided  it  be  of  value." 

The  learned  author,  however,  considered  the  rule  he  mentions  to  pre- 
vail here,  and  to  rest  upon  the  authority  of  the  English  decided  cases. 
Several  cases  are  then  cited  in  the  treatise  :  Hanson  v.  Meyer,  6  East, 
614  ;  Hinde  v.  Whitehouse,  7  East,  558  ;  Rugg  v.  Minett,  11  East,  210  ; 
Zagury  '■.  Eurnell,  2  Campb.  240  ;  Simmons  v.  Swift,  5  B.  &  C.  857  ; 
Laidler  v.  Burlinson,  2  M.  &  W.  602;  Tripp  v.  Armitage,  4  M.  &  XV. 
687. 

The  author  further  observes  that  "  if  it  appear  from  the  agreement 
that  the  intention  of  the  parties  is  that  the  property  shall  pass  presently, 
the  property  does  pass,  though  there  remain  acts  to  be  done  by  the  ven- 
dor before  the  goods  are  deliverable  ;  "  citing  Woods  v.  Russell,  5  B.  & 
A.  942  ;  Clarke  /;.  Spence,  4  A.  &  E.  448. 

It  is  very  doubtful  whether  in  stating  the  rule  to  be  that  where  any- 
thing remains  to  be  done  to  the  goods  for  ascertaining  the  price,  as 
weighing,  &c. ,  the  performance  was  a  condition  precedent  to  the  transfer 


SECT.  II.]  TURLEY    V.    BATES.  51 

of  the  property,  it  was  meant  by  the  learned  author  to  include  a  ease 
where  all  that  remained  to  be  done  was  to  be  done  by  the  buyer,  with 
full  authority  from  the  seller  to  do  the  act. 

In  Hanson  v.  Meyer  the  weighing  was  to  precede  the  delivery,  and 
was  a  condition  precedent  to  the  purchaser's  right  to  take  possession, 
and  to  a  complete  present  right  of  property.  In  Hinde  v.  Whitehouse, 
which  was  a  case  of  a  sale  by  auction,  it  was  held  that  though  the  duties 
to  the  crown  remained  to  be  paid  by  the  seller,  before  possession  could 
be  had  by  the  buyer,  the  property  passed  from  the  time  of  sale  ;  the 
words  of  the  condition  showing  that  intention.  In  Rugg  v.  Minett,  a 
duty  remained  to  be  performed  by  the  sellers  ;  and  Lord  Ellenborough 
stated  the  test  to  be,  "  whether  everything  had  been  done  by  the  sellers 
which  lay  upon  them  to  perform  in  order  to  put  the  goods  in  a  deliver- 
able state  ;  "  and  Mr.  Justice  Bayley,  in  effect,  adopted  the  same  test. 
Zagury  v.  Furnell  is  an  authority  to  the  same  effect.  There  it  was  the 
duty  of  the  seller  to  count  the  skins  in  each  bale,  and  the  price  was  for 
a  certain  sum  per  dozen  skins.  In  Simmons  v.  Swift,  the  authority  most 
in  point  for  the  defendant,  it  was  a  part  of  the  contract  there  for  the 
sale  of  a  stack  of  bark  at  £9  per  ton,  that  the  bark  should  be  weighed, 
and  the  concurrence  of  the  seller  in  the  act  of  weighing  was  necessary. 
Bayle}T,  J.,  after  stating  the  general  principle  says:  "  If  anything  re- 
mains to  be  done  on  the  part  of  the  seller,  until  that  is  done  the  property 
is  not  changed." 

From  a  consideration  of  these  cases,  it  appears  that  the  principle  in- 
volved in  the  rule  above  quoted  is,  that  something  remains  to  be  done 
by  the  seller.  It  is,  therefore,  very  doubtful,  as  before  stated,  whether 
the  present  case  comes  within  the  principle  of  the  rule.  But,  however 
that  may  be,  it  is  clear  that  this  rule  does  not  apply  if  the  parties  have 
made  it  sufficiently  clear  whether  or  not  they  intend  that  the  property 
shall  pass  at  once,  and  that  their  intention  must  be  looked  at  in  every 
case.  This  is  clearly  laid  down  in  the  case  of  Logan  v.  Le  Mesurier,  fi 
Moo.  P.  C.  C.  116,  and  in  Hinde  v.  Whitehouse,  7  East.  558,  cited  supra, 
and  in  Blackburn  on  Contract  of  Sale,  p.  151. 

In  the  present  case  the  jury  have,  in  effect,  adopted  the  plaintiff's 
version  of  the  bargain,  by  their  finding  that  it  was  for  the  whole  heap. 
And,  taking  that  view  of  the  case,  it  seems  to  us  clear  that  the  inten- 
tion of  the  parties  was  that  the  property  in  the  whole  heap  should  pass, 
notwithstanding  the  cla}'  was  to  be  weighed  at  Johnson's  machine  ;  and 
we,  therefore,  think  that  the  rule  to  reduce  the  damages  must  he  dis- 
charged. Bide  discharged. 


52  MARTIXEAU    V.    KETCHING.  [CHAP.  II. 


MARTIXEAU   v.   KITCHIXG. 

Ix  the  Queen's  Bench,  May  3,   1872. 

[Reported  in  Lair  Reports,  7  Queen's  Bench,  436] 

The  plaintiffs,  sugar  refiners,  were  in  the  habit  of  selling  to  brokers 
the  whole  of  each  filling  of  sugar,  consisting  of  from  200  to  300  loaves 
or  "  titlers  "  each,  the  terms  always  being  "Prompt  at  one  month; 
goods  at  seller's  risk  for  two  months,"  the  "prompt"  day  being  the 
Saturday  next  after  the  expiration  of  one  month  from  the  sale.  The 
titlers  in  each  filling  were  stored  on  the  plaintiffs'  premises,  and  were 
from  time  to  time  fetched  away  by  the  purchasers  or  their  sub-vendees, 
being  weighed  on  their  removal,  each  titler  weighing  from  thirty-eight 
to  forty-two  pounds.  If  the  whole  of  the  lots  contained  in  one  sale-note 
had  not  (which  was  frequently  the  case)  been  taken  awa}*  on  the 
••  prompt"  day  payment  was  made  by  the  purchaser  (by  bill  or  cash) 
at  an  approximate  sum  calculated  on  the  probable  weight,  the  actual 
price  being  afterwards  adjusted  on  the  whole  filling  being  cleared. 

The  defendant,  who  was  an  old  customer  of  the  plaintiffs,  had  bought 
four  fillings,  consisting  of  specific  titlers,  each  marked,  on  the  above 
terms,  and  had  paid  the  approximate  price  of  the  four  lots,  and  had 
fetched  some  of  each  lot  away.  A  fire  occurred  on  the  plaintiffs'  prem- 
ises after  the  expiration  of  the  two  months  from  the  dates  of  sale  to  the 
defendant,  destroying  the  whole  contents  of  the  warehouses.  At  the 
time  of  the  fire  the  plaintiffs  had  floating  policies  of  insurance  which 
covered  goods  on  the  premises  "  sold  and  paid  for,  but  not  removed," 
but  they  had  no  agreement  or  understanding  with  their  customers  as  to 
any  insurance  ;  and  the  amount  insured,  which  the  plaintiffs  received 
from  the  underwriters,  was  not  sufficient  to  cover  the  loss  of  their  own 
goods,  exclusive  of  the  titlers,  undelivered,  which  the}-  had  sold  to  the 
defendant. 

Cockburn,  C.  J.  This  is  an  action  brought  to  recover  the  price  of 
certain  sugar  alleged  to  have  been  sold  by  the  plaintiffs  to  the  defend- 
ant. The  sugar  perished  by  fire  while  it  was  still  upon  the  premises  of 
the  sellers,  and  the  defence  raised  is  twofold:  first,  that  the  property 
in  the  sugar  had  not  passed  from  the  plaintiffs,  the  sellers,  to  the  de- 
fendant, the  buyer,  and  consequently  the  loss  must  fall  upon  the  sellers  ; 
secondly,  that,  even  supposing  that  were  decided  against  the  defendant, 
inasmuch  as  these  goods  were  covered  by  an  insurance  effected  by  the 
plaintiffs,  and  the  plaintiffs  had  received  the  amount  insured  with 
respect  to  these  goods,  the  defendant  is  entitled  to  have  what  the 
plaintiffs  have  so  received  in  respect  of  the  goods  set  off  in  his  favor 
against  the  price. 

The  first  question  is,  whether  at  the  time  these  goods  perished  by 
fire  they  were  the  property  of  the  sellers,  the  plaintiffs,  or  the  property 
of  the  buyer,  the  defendant.     In  order  to  decide  that,  as  well  as  to  de- 


SECT.  II.]  MAKTINEAU    V.    KITCHING.  53 

cide  the  second  question  in  dispute,  we  must  look  to  see  what  was  the 
course  of  dealing  which  existed  between  these  parties.  [The  Lord  Chief 
Justice  stated  the  facts.] 

Now,  that  being  the  state  of  things  existing  between  these  parties, 
the  first  question  is,  whether,  the  contract  between  them  being  in  con- 
formity with  the  general  course  of  dealing  to  which  1  have  adverted, 
when  these  goods  perished  by  tire  the  property  had  passed  from  the 
sellers  to  the  buyer.  In  my  opinion  it  had,  both  14)011  general  prin- 
ciples and  more  especially  with  reference  to  the  particular  facts  of  this 
case  and  the  terms  of  the  contract  between  the  parties.  In  dealing 
with  the  case  of  a  contract  we  must  bear  in  mind  that  the  seller  en- 
gages to  do  two  main  things,  first,  to  pass  the  property  in  the  thing 
sold  ;  secondly,  to  deliver  possession  of  it.  The  buyer  engages  to  take 
the  thing  which  he  has  contracted  to  buy,  and  to  pay  the  price;  and, 
undoubtedly,  in  such  a  contract,  one  of  the  essential  elements  to  con- 
stitute a  contract  of  sale  is  that  the  price  shall  be  agreed  upon.  But 
there  is  nothing,  as  it  seems  to  me,  to  prevent  the  parties  from  agreeing 
that  the  property  shall  pass,  and  that  the  price  shall  afterwards  be  ascer- 
tained, that  which  is  capable  of  being  reduced  to  a  certainty  being  for 
practical  purposes  a  thing  already  certain  or  ascertained. 

Now  the  question  here  is,  whether  the  property  passed.  It  appears 
that  the  price  had  not  been  finally  adjusted,  but  it  is  equally  clear  that 
the  parties  had  agreed  upon  a  price  estimated  between  them  as  the  sum 
to  be  taken  provisionally  as  the  price  for  the  goods.  The  question 
which  presents  itself  to  my  mind  is  whether,  independently  of  the  ques- 
tion how  far,  when  the  price  is  still  to  be  ascertained  on  the  sale  of 
a  specific  chattel,  the  property  passes,  the  parties  having  agreed  that 
provisionally  a  given  sum  shall  be  taken  as  the  price,  that  does  not 
show  a  clear  intention  on  the  part  of  both  buyer  and  seller  that  the 
property  shall  pass. 

It  is  very  true,  as  has  been  ably  contended  by  Mr.  Brown,  that  there 
are  authorities  for  saying  that,  where  the  price  remains  to  be  ascer- 
tained, the  property  will  not  pass.  But  I  think  it  is  equally  clear,  upon 
the  authorities,  that,  according  to  the  view  now  taken  of  this  branch  of 
the  law,  the  question  is  one  of  intention  between  the  parties.  I  take  it 
now  to  be  perfectly  clear,  especially  after  the  case  of  Turley  v.  Bates, 
2  H.  &  C.  200,  33  L.  J.  (Ex.)  43,  that  the  real  question  in  all  these 
cases  is,  whether  the  parties  did  intend  that  the  property  should  pass  ; 
and  I  take  it  that  in  this  respect  no  fault  can  be  found  with  the  law  of 
England  if  a  distinction  exists  between  our  law  and  the  civil  law  in  this 
respect.  It  is  perfectly  true  that  where  anything  remains  to  be  done 
with  a  view  to  the  appropriation  of  the  thing  agreed  to  lie  sold  by  the 
seller  to  the  buyer,  it  is  plain  that  the  property  will  not  have  been  in- 
tended by  him  to  pass  to  the  buyer,  and  the  property  will  not  have  passed. 
But  it  is  equally  clear  that,  in  point  of  principle,  and  in  point  of  com- 
mon-sense and  practical  wisdom,  there  is  nothing  to  prevent  a  man 
from  passing  the  property  in  the  thing  which  he  proposes  to  sell   and 


54  MARTIXEAU    V.    KITCHING.  [CHAP.  II. 

the  buyer  proposes  to  buy,  although  the  price  may  remain  to  be  ascer- 
tained afterwards.  We  are  dealing  with  the  case  of  a  specific  chat- 
tel. I  agree  to  sell  to  a  man  a  specific  thing  —  say  a  stack  of  hay,  or 
a  stack  of  corn.  I  agree  to  sell  him  that  specific  thing,  and  he  agrees 
to  buy  it ;  the  price  undoubtedly  remains  an  element  of  the  contract, 
but  we  agree,  instead  of  fixing  upon  a  precise  sum,  that  the  sum  shall 
be  ascertained  by  a  subsequent  measurement.  What  is  there  to  pre- 
vent ihe  parties  from  agreeing  that  the  property  shall  pass  from  one  to 
the  other,  although  the  price  is  afterwards  to  be  ascertained  by  measure- 
ment. I  take  it  that  is  the  broad  substantial  distinction.  If,  with  a 
view  to  the  appropriation  of  the  thing,  the  measurement  is  to  be  made  as 
well  as  the  price  ascertained,  the  passing  of  the  property  being  a  ques- 
tion of  intention  between  the  parties,  it  did  not  pass  because  the  parties 
did  not  intend  it  to  pass.  But  if  you  can  gather  from  the  whole  circum- 
stances of  the  transaction  that  they  intended  that  the  property  should 
pass,  and  the  price  should  afterwards  be  ascertained,  what  is  there  in 
principle,  what  is  there  in  common-sense  qt  practical  convenience  which 
should  prevent  that  intention  from  having  effect?  I  protest  I  can  see 
none  ,  and  unless  there  are  authorities  absolutely  conclusive  upon  the 
point,  I  will  not  give  way  to  a  rule  which  appears  to  me  to  militate 
against  principle,  and  to  be  inconsistent  with  common-sense  and  con- 
venience. In  this  particular  case  it  is  not  necessary  to  say  what  would 
be  the  law  applicable,  if  we  had  now  to  consider,  for  the  first  time,  or 
as  a  court  of  error,  which  we  are  not,  the  question  in  the  case  of  Simmons 
v.  Swift,  5  B.  &  C.  857.  But  this  case,  I  think,  is  plainly  distinguish- 
able from  Simmons  v.  Swift,  by  reason  of  more  than  one  circum- 
stance. The  first  to  which  I  shall  advert  is,  that  the  price  is  agreed 
upon  between  the  parties  provisionally,  according  to  their  estimate  of 
the  quantity  which  the  titlers  contain.  Can  it  be  said  that  after  that 
price  has  been  paid  at  the  prompt,  although  there  is  a  further  term  in 
the  contract  between  the  parties  that  they  shall  eventually  ascertain 
by  an  accurate  weighing  whether  more  or  less  than  the  price  which  the 
parties  intended  has  been  paid,  — can  it  be  said  that  it  was  intended 
after  the  price  provisionally  agreed  upon  has  been  paid  at  the  prompt, 
that  the  property  is  still  to  remain  in  the  sellers  and  not  to  be  trans- 
ferred to  the  buyer?  I  do  not  think  it  is  possible  to  hold  anything 
which  would  be  so  inconsistent  with  what  is  obviously  the  intention  of 
the  parties.  All  that  they  intended  to  do  by  the  final  weighing  was  to 
see  whether  they  had  accurately  ascertained  the  amount  which,  accord- 
ing to  the  terms  of  the  contract,  they  intended  that  the  one  party  should 
pay  and  the  other  should  receive.  Then  there  is  a  further  circumstance 
which  appears  to  me  of  importance  in  this  case,  and  which  brings  it 
clearly  within  the  principle,  as  I  think,  of  the  case  of  Castle  v.  Playford, 
Law  Rep.  7  Ex.  98,  the  recent  case  in  the  Exchequer  Chamber,  that  is, 
that  by  the  terms  of  this  contract,  the  goods,  while  they  remained  in 
their  possession  or  in  their  custody  is  the  more  proper  term  —  in 
their  warehouse  during  the  two  months,  were  to  be  at  the  risk  of  the 


SE   '!'•   H.]  MARTINEAU    V.    KITCIIIXG.  55 

sellers,  the  plaintiffs.  As  I  pointed  out  in  the  course  of  the  argument, 
what  would  be  the  necessity,  what  would  be  the  object  or  purpose  of 
such  a  stipulation  that  the  goods  should  be  at  their  risk  during  the  two 
months  if  the  property  still  remained  in  them?  Of  course°it  would 
then  be  at  their  risk.  Moreover,  according  to  the  course  of  dealing 
between  the  parties,  at  the  expiration  of  the  two  months,  notice  is 
given  to  the  buyer,  which  notice  the  buyer  accepts,  and  which  notice 
the  present  defendant  in  his  dealings  with  the  plaintiffs  had  invariably 
accepted  without  remonstrance  or  objection,  that  upon  the  expiration  of 
the  two  months  the  goods,  though  still  remaining  in  the  custody  of  the 
plaintiffs,  should  stand  at  the  buyer's  risk.  That  brings  the  case  at 
once  within  the  principle  of  the  decision  in  Castle  v.  Playford,  Law 
Rep.  7  Ex.  98,  and  shows  that  at  that  time,  at  all  events,  the  property 
in  the  goods  was  intended  by  common  consent  of  both  buyer  and  sellers 
to  be  in  the  defendant,  the  buyer. 

I  think,  therefore,  looking  at  all  the  circumstances  of  the  case,  it  is 
impossible  to  doubt  that  the  true  intention  of  the  parties,  as  well  as  by 
contemplation  and  effect  of  the  law,  was  that  the  property  was  in  the 
buyer  and  no  longer  in  the  sellers  at  the  time  of  the  fire,  and  therefore 
the  thing,  having  perished,  perishes  to  the  dominus,  namely,  the  buyer, 
and  not  to  the  sellers,  who  had  ceased  to  have  anything  to  do  with  it. 

Blackbi  rn,  J.     I  am  also  of  opinion  that  our  judgment  must  be  in 
favor  of  the  plaintiffs.      The  case  arises  in  this  Way.     [The  learned 
judge  stated  the  facts.]     The  difficulty  which  is  raised  is,  that  these 
goods    had    perished    before   they   were    actually    weighed;    and    two 
points  were  made   by  Mr.  Brown  ;    he  contended  that    because   thev 
had  not  been  weighed  the  property  had  not  passed,  and  that  it  there- 
fore followed,  as  an  inexorable  rule  of  law,  that  they  were  not  to  be 
paid  for,  because  they  were  still  the  property  of  the  "plaintiffs.     This, 
however,  I  do  not  think  is  the  correct  way'of  putting  the  case,  and 
I   do  not  think  that  we  need  decide  whether  the  property  passed  or 
not.     As  a  general  rule,  res  perit  domino,  the  old  civil  law  "maxim,  is  a 
maxim  of  our  law;  and  when  you  can  show  that  the  property  passed 
the  risk  of  the  loss,  primd  facie,  is  in  the  person  in  whom  the  property 
is.     If,  on  the  other  hand,  you  go  beyond  that,  and  show  that  the  risk 
attached  to  the  one  person  or  the  other,  it  is  a  very  strong  argument 
for  showing  that  the  property  was  meant  to  be  in  him.     But  the  two 
are  not  inseparable.      It  may  be  very  well  that  the  propertv  shall  be  m 
the  one  and  the  risk  in  the  other.      In  the  present  case  I  think  all  that 
is  necessary  to  decide  is,  that  the  risk  was  not  in  the  sellers.     When 
the  first  month  had  elapsed,  and  payment  had  been  made,  still  the  buy- 
ers had,  from  their  express  stipulation,  a  right  to  have  the  soods  remain 
a  month  at  the  refiners'  warehouse  at  the  refiners'  risk.     Let  us  suppose 
that  the  refiners  had  become  bankrupt.     If  in  consequence  of  the  risk 
being  in  the  refiners,  which  by  this  stipulation  it  clearly  would  be  durum 
the  two  months,  the  property  was  still  in  the  refiners,  their  assignees  in 
bankruptcy  would  take  the  entire  property,  and  the  buvers,  who  had 


5fi  MARTINEAU    V.    K1TCHING.  [CHAP.  II. 

paid  the  approximate  price,  would  be  obliged  to  come  in  and  prove, 
and  get  so  many  shillings  in  the  pound  as  they  might  be  able  to  prove 
for.  That  would  be  a  monstrous  hardship,  and  in  such  a  case  as  that  I 
should  be  very  much  inclined  to  struggle  very  hard  to  find  any  legal 
reason  for  saying  that,  though  the  risk  remained  in  the  sellers,  yet  the 
property  had  passed  to  the  buyers  as  soon  as  they  had  made  the  pay. 
ment.  If  the  question  arose  in  such  a  case  as  that,  I  am  rather  inclined 
to  think  it  would  be  necessary  to  look  carefully  into  Simmons  v.  Swift, 
5  B.  &  C.  857,  and  some  other  cases,  to  see  if  one  could  decide  that  the 
property  had  passed.  But  in  this  qase  that  does  not  arise  ;  the  second 
of  the  two  months  had  elapsed,  during  which  the  stipulation  was  that 
the  goods  were  to  be  at  the  sellers'  risk.  I  think  expressio  iinius  est 
exclasio  alterius.  I  cannot  construe  that  stipulation,  except  as  imply- 
ing that  at  the  expiration  of  the  two  months  the  goods  are  to  be  at  the 
buyers  risk.  That  construction  would  be  greatly  fortified,  if  it  required 
fortification,  by  the  fact  that  at  the  end  of  the  two  months  the  sellers  did 
send  a  note  to  remind  the  buyer  that  the  goods  are  at  his  risk  ;  and  this 
being  a  stipulation  between  two  parties,  who  are  both  sui  juris,  that 
they  are  to  be  at  the  buyer's  risk  after  the  two  months,  the  question  is, 
is  that  effectual  at  law  ? 

Mr.  Brown's  argument  was,  that  the  goods  must  be  at  the  sellers' 
risk,  because,  as  he  contended,  the  property  had   not  passed  to  the 
buyer.     I  have  already  intimated  that,  if  it  were  necessary,  I  should 
consider  very  long  before  I  said  that.     However,  assume  that  it  had 
not  passed.      If  the  agreement  between  the  parties  was,  "  I  contract 
that  when  you  pay  the  price  I  will  deliver  the  goods  to  you,  but  the 
property  shall  not  be  yours,  they  shall  still  be  my  property  so  that  I 
may  have  dominion  over  them  ;  but  though  they  shall  not  be  yours,  I 
stipulate  and  agree  that  if  I  keep  them  beyond  the  month  the  risk  shall 
be  upon  you  ;  "  and  then  the  goods  perish  ;  to  say  that  the  buyer  could 
then  set  up  this  defence  and  say,  "  Although  I  stipulated  that  the  risk 
should  be  mine,  yet,  inasmuch  as  an  accident  has  happened  which  has 
destroyed  them,  I  will  have  no  part  of  that  risk,  but  will  throw  it  entirely 
upon  you  because  the  property  did  not  pass  to  me,"  is  a  proposition 
which,  stated  in  that  way,  appears  to  be  absolutely  a  reduclio  ad  absur- 
durn  ;  and' that  is  really  what  the  argument  amounts  to.     If  the  parties 
have  stipulated  that,  if  after  the  two  months  the  goods  remain  in  the 
sellers'  warehouse,  they  shall,  nevertheless,  remain  there  at  the  buyer's 
risk,  it  would  be  a  manifest  absurdity  to  say  that  he  is  not  to  pay  for 
them  ;  and  I  think  the  case  of  Castle  v.  Playford,  Law  Hep.  7  Ex.  98, 
is  a  clear  authority  of  the  Court  of  Exchequer  Chamber,  that  where 
the  parties  have  stipulated  that  the  risk  shall  be  on  one  side,  it  mat- 
ters not  whether  the  property  had  passed  or  not.      The  parties  here 
have  by  their  express  stipulation  impliedly  said,  after  the  two  months 
the  goods  shall  he  at  the  risk  of  the  buyer,  consequently  it  is  the  buyer 
who  must  bear  the  loss. 

Then  Mr.  Brown  said,  '»  But  how  can  the  buyer  pay  when  he  was  to 


SECT.  II.]  MARTINEAU    V.    HITCHING.  57 

pay  at  47s.  per  cwt.,  and  the  goods  have  never  been  weighed,  and 
therefore  it  would  never  be  known  with  certain  precision  how  many 
cwt.  there  were?"  I  answer  to  that,  in  the  first  place,  that  the  point 
is  concluded  by  the  authority  of  Alexander  v.  Gardner,  1  Bing.  N.  C. 
671  ;  Turley  v.  Bates,  2  H.  &  C.  200,  33  L.  J.  (Ex.)  43  ;  and  the  recent 
case  of  Castle  v.  Play ford,  Law  Rep.  7  Ex.  98,  in  the  Exchequer  Cham- 
ber, —  which  all  go  to  show  that  where  the  price  is  not  ascertained,  and 
it  could  not  be  ascertained  with  precision  in  consequence  of  the  thing 
perishing,  nevertheless  the  seller  may  recover  the  price,  if  the  risk  is 
clearly  thrown  on  the  purchaser,  by  ascertaining  the  amount  as  nearly 
as  you  can. 

There  is  another  reason  which  in  this  case  would  clearly  apply,  —  the 
delay  in  weighing  is  quite  as  much  the  fault  of  the  purchaser  as  of  the 
sellers.  When  the  prompt  day  comes  the  sellers  have  a  right  to  require 
that  the  goods  should  be  weighed  at  once,  so  as  to  ascertain  the  price, 
and  to  have  it  paid  to  the  last  farthing.  It  may  be  for  the  mutual  con- 
venience of  both  parties  ;  but  still  it  is  the  buyer,  in  effect,  who  requests 
that,  as  he  is  going  to  leave  them  longer,  the  weighing  should  be  post- 
poned for  a  time.  Therefore  it  is  in  consequence  of  his  delay  that  the 
weighing  does  not  take  place.  Now  by  the  civil  law  it  alwa3*s  was 
considered  that,  if  there  was  any  weighing,  or  anything  of  the  sort 
which  prevented  the  contract  being  perfecta  emptio,  whenever  that  was 
occasioned  by  one  of  the  parties  being  in  mord,  and  it  was  his  default, 
though  the  emptio  is  not  perfecta,  yet  if  it  is  clearly  shown  that  the  party 
was  in  mord,  he  shall  have  the  risk  just  as  if  the  emptio  was  perfecta. 
That  is  perfectly  good  sense  and  justice,  though  it  is  not  necessary  to 
the  decision  of  the  present  case,  that,  when  the  weighing  is  delayed  in 
consequence  of  the  interference  of  the  buyer,  so  that  the  property  did 
not  pass,  even  if  there  were  no  express  stipulation  about  risk,  yet  be- 
cause the  non-completion  of  the  bargain  and  sale,  which  would  absolutely 
transfer  the  property,  was  owing  to  the  delay  of  the  purchaser,  the  pur- 
chaser should  bear  the  risk  just  as  much  as  if  the  property  had  passed. 
The  inclination  of  my  opinion  is,  as  I  have  said,  that  the  property  is  in 
the  purchaser,  but  we  need  not  decide  that  at  all  to-day,  and  it  might 
require  some  consideration  to  see  how  far  the  case  of  Simmons  v.  Swift, 
5  B.  &  C  857,  really  governs  the  case. 

Judgment  for  the  plaintiffs} 

1  The  statement  of  facts  has  been  abbreviated, and  portions  of  the  opinions  holding 
that  the  defendant  was  not  entitled  to  the  benefit  of  the  insurance  have  been  omitted. 
Lush  and  Quain,  JJ.,  delivered  concurring  opinions. 

The  case  came  before  the  court  on  a  case  stated  by  an  arbitrator  pursuant  to  an 
order  of  nisi  prius.  The  court  was  to  have  power  to  draw  inferences  of  fact,  and  to 
make  any  amendments  in  the  pleadings  which  it  might  think  necessary  or  proper. 


58  SHEEWIN   V.    MUDGE.  [CHAr.  It- 


SHERWIN   v.  MUDGE. 

Supreme  Judicial   Court  of  Massachusetts,  March  14,  1878  — 

Oct.  24,  1879. 

[Reported  in  127  Massachusetts,  547.] 

Contract  by  the  collector  of  the  city  of  Boston  against  the  admin- 
istratrix of  the  estate  of  Andrew  C.  Mudge,  deceased,  for  the  amount 
of  a  tax  assessed  on  May  1,  1875,  on  a  stock  of  merchandise.  The 
case  was  submitted  to  the  Superior  Court,  and,  after  judgment  for  the 
defendant,  to  this  court  on  appeal,  on  an  agreed  statement  of  facts, 
in  substance  as  follows  :  — 

By  the  terms  of  a  written  agreement  entered  into  before  May  1,  A. 
"sells"  and  B.  "  buys"  the  stock  of  goods  in  A.'s  shop;  the  price 
to  be  a  certain  percentage  of  the  invoice  price  of  the  goods,  according 
to  an  inventory  in  the  possession  of  A.,  "  subject  to  corrections  as  to 
quantities  ;  delivery  to  be  made  and  price  paid  as  soon  as  the  quan- 
tities can  be  verified."  The  agreement  also  stated  the  price  according 
to  the  inventory,  and  the  amount  to  be  paid,  "subject  as  above."  As 
soon  as  the  agreement  was  signed  B.  paid  A.  a  certain  sum.  An 
examination  was  then  made  by  B.  to  verify  the  inventory,  which  was 
not  finished  until  after  May  1,  when  the  goods  were  delivered  and  the 
balance  found  due  paid 

H.   W.  Putnam,  for  the  plaintiff. 

J.  II.   Young,  for  the  defendant. 

Gray,  C.  J.  By  a  contract  for  the  sale  of  specific  goods,  the  title 
doubtless  passes  as  between  the  parties,  without  any  actual  or  con- 
structive delivery,  or  payment  of  the  price,  unless  it  can  be  shown 
that  their  intention  is  different.  Tarling  v.  Baxter,  6  B.  &  C.  360  ; 
s.  c.  9  D.  &  R.  272  ;  Dixon  v.  Yates,  5  B.  &  Ad.  313,  340  ;  s.  c.  2  New 
&  Man.  177,  202;  Gilmour  v.  Supple,  11  Moore  P.  C.  551  ;  Parsons 
v.  Dickinson,  11  Pick.  352,  354  ;  Pratt  v.  Parkman,  24  Pick.  42,  46  ; 
Morse  v.  Sherman,  106  Mass.  430  ;   Dempsey  v.  Gardner,  ante,  381. 

Hut  in  the  present  case  the  terms  of  the  written  contract  manifest 
the  intention  of  the  parties  that  the  title  shall  not  pass  immediately. 
The  implication  of  an  immediate  transfer  of  title,  suggested  by  the 
use,  at  the  outset,  of  the  words  in  the  present  tense,  by  which  the 
defendant  "  sells,"  and  Jordan,  Marsh,  &  Co.  "  buy,"  an  entire  stock 
of  goods  in  a  particular  shop,  is  controlled  by  the  subsequent  pro- 
visions. The  contract  not  only  requires  a  comparison  of  the  actual 
quantities  of  the  goods  with  the  inventory  in  the  possession  of  the 
defendant,  in  order  to  fix  the  price;  but  the  stipulation  "  delivery  to 
be  made  and  price  paid  as  soon  as  the  quantities  can  be  verified" 
shows  thai  the  parties  contemplated  and  intended  that  the  transfer  of 
the  title  and  the  payment  of  the  price  should  be  simultaneous,  and 
that   both   should  be  postponed  until  the  quantities  of  the  goods  were 


SECT.  II.]  LING  HAM    V.    EGGLESTON.  59 


verified  and  the  amount  of  the  purchase  money  thereby  ascertained. 
Higgius  ik  Chessman,  9  Pick.  7,  10  ;  Dresser  Manuf.  Co.  v.  Waters- 
ton,  3  Met.  9,  17;  Maeomber  v.  Parker,  13  Pick.  175;  Mason  r. 
Thompson,  18  Pick.  305  ;  Kiddle  v.  Varnum,  20  Pick.  280  ;  Foster 
v.  Ropes,  111  Mass.  10,  1(3. 

The  defendant,  therefore,  was  the  owner  of  the  goods  on  the  first 
of  May,  and  is  liable  for  the  tax  assessed  thereon. 

Judgment  for  the  plaintiff. ' 


LINGHAM   v.  EGGLESTON. 
Supreme  Court  of  Michigan,  April  17,  18 — July  11,  1873. 

[Reported  in  27  Michigan,  324.] 

Cooley,  J.  The  contest  in  this  case  relates  to  a  sale  of  lumber  by 
Eggleston  to  Lingham  and  Osborne,  and  the  question  involved  is, 
whether  the  contract  between  the  parties  amounted  to  a  sale  in  pre- 
senti  and  passed  the  title,  or  merely  to  an  executory  contract  of  sale. 
The  lumber,  subsequent  to  the  contract  and  before  actual  delivery  to 
the  purchasers,  was  accidentally  destroyed  by  fire,  and  the  purchasers 
now  refuse  to  pay  for  it  on  the  ground  that  it  never  became  their 
property.  The  action  was  brought  by  Eggleston  for  goods  bargained 
and  sold,  and  in  the  court  below  he  recovered  judgment. 

There  appears  to  be  very  little  dispute  about  the  facts.  The  lum- 
ber was  piled  in  Eggleston's  mill  yard  at  Birch  Run.  In  September, 
1871,  he  sold  his  mill  to  a  Mr.  Thayer,  reserving  the  right  to  leave 
the  lumber  in  the  yard  until  he  disposed  of  it.  To  most  of  the  lumber 
the  plaintiff  had  an  exclusive  title  ;  but  there  were  four  or  five  piles 
which  he  owned  jointly  with  one  Robinson.  The  whole  amount  was 
from  200,000  to  250,000.  excluding  Robinson's  share  in  the  four  or 
five  piles.  The  defendants  went  to  the  mill  yard  September  23,  1871, 
and  proposed  to  buy  the  lumber.  Plaintiff  went  through  the  yard 
with  them,  pointed  out  the  several  piles,  and  designated  those  in  which 
Robinson  had  an  undivided  interest,  and  also  some  piles  of  shingles 
which  they  proposed  to  take  with  the  lumber.  After  examining  the 
whole  to  their  satisfaction,  the  defendants  agreed  upon  a  purchase, 
and  the  following  written  contract  was  entered  into:  — 

Flint,  September  23,  1871.  Lingham  and  Osborne  bought  from 
('.  Fggleston  this  day,  all  the  pine  lumber  on  his  yard  at  Birch  Run 
at  the  following  prices  :  For  all  common,  eleven  dollars,  and  to  include 
all  better  at  the  same  price  ;  and  for  all  culls,  five  dollars  and  fifty 
cents  per  M.,  to  be  paid  for  as  follows:  five  hundred  dollars  to-day, 
and  five  hundred  dollars  on  the  10th  of  October  next ;  the  balance, 
one  half  on  1st  day  of  January,  a.  d.  1872,  ami  the  rest  on  the  1st  day 
1  The  statement  of  the  ease  lias  been  abbreviated. 


60  LINGHAM   V.    EGGLESTON.  [CHAP.   II. 

of  February  following;  said  lumber  to  be  delivered  by  said  Eggleston 
ou  board  of  cars  wbeu  requested  by  said  Lingham  and  Osborne,  which 
shall  not  be  later  than  10th  of  November  next.  Also  some  shingles  at 
two  dollars  per  M.  for  No.  2,  and  four  dollars  for  No.  1. 

(Signed)         Lingham  &  Osborne. 

Chauncey  Eggleston,  Jr. 

The  five  hundred  dollars  mentioned  in  this  contract  to  be  paid  at 
the  time  of  its  execution  was  paid.  A  few  days  later  defendants 
went  to  the  mill  yard  in  plaintiff's  absence  and  loaded  two  cars  with 
the  lumber.  He  returned  before  they  had  taken  them  away,  and 
helped  them  count  the  pieces  on  the  cars,  but  left  them  to  measure 
them  afterwards.  At  this  time  the  lumber  in  the  piles  had  not  been 
assorted,  inspected,  or  measured.  There  was  disagreement  between 
the  parties  as  to  whether  they  had  fixed  upon  a  person  to  inspect  the 
lumber,  —  the  defendants  claiming  that  such  was  the  fact.  On  the 
yth  day  of  October,  1871,  Lingham  met  plaintiff  on  the  cars  at  Flint, 
and  told  him  the  fires  were  raging  near  Birch  Run  ;  that  the  lumber 
yard  was  safe  yet,  but  that  there  were  eight  cars  standing  on  the  side 
track,  and  he  had  better  go  up  to  Birch  Run  aud  load  what  were  there, 
and  get  what  lumber  he  could  away ;  plaintiff  took  the  first  train 
for  the  purpose,  and  while  on  the  train  the  train  boy  gave  him  the 
following   note   from  Lingham :  — 

Holly.  Mr.  Eggleston:  You  may  load,  say  ten  thousand,  if  you 
think  best,  on  each  car,  and  we  can  have  it  inspected  as  it  is  unloaded. 
I  will  try  and  come  up  to-morrow. 

When  plaintiff  reached  Birch  Ruu  the  fire  was  raging  all  about  the 
mill,  and  that,  with  all  the  lumber  in  the  yard,  was  soon  totally  destroyed 
by  fire.  Such  are  the  undisputed  facts  in  the  case ;  and  upon  these  the 
jury  were  instructed  in  substance  that  a  completed  contract  of  sale  was 
made  out,  and  the  plaintiff  was  entitled  to  recover  the  purchase  price. 

Where  no  question  arises  under  the  statute  of  frauds,  and  the  rights 
of  creditors  do  not  intervene,  the  question  whether  a  sale  is  com- 
pleted or  only  executory,  must  usually  be  determined  upon  the  intent 
of  the  parties  to  be  ascertained  from  their  contract,  the  situation  of 
the  thing  sold,  and  the  circumstances  surrounding  the  sale.  The 
parties  may  settle  this  by  the  express  words  of  their  contract,  but  if 
they  fail  to  do  so  we  must  determine  from  their  acts  whether  the  sale 
is  complete.  If  the  goods  sold  are  sufficiently  designated  so  that  no 
question  can  arise  as  to  the  thing  intended,  it  is  not  absolutely  essen- 
tial that  there  should  be  a  delivery,  or  that  the  goods  should  be  in 
deliverable  condition,  or  that  the  quantity  or  quality,  when  the  price 
depends  upon  either  or  both,  should  be  determined.  All  these  are 
circumstances  having  an  important  bearing  when  we  are  seeking  to 
arrive  at  the  intention  of  the  parties,  but  no  one  of  them,  nor  all  com- 
bined,  are  conclusive. 

Id  Blackburn  on  Sales,  120,  the  rule  on  tlily  subject  is  very  clearly 


SECT.  II.]  LINGHAM   V.    EGGLESTON.  CI 

and  correctly  stated  as  follows:  The  question,  the  author  says,  is  "  a 
question  depending  upon  the  construction  of  the  agreement ;  for  the 
law  professes  to  carry  into  effect  the  intention  of  tin1  parties  as 
appearing  from  the  agreement,  and  to  transfer  the  property  when 
such  is  the  intention  of  the  agreement ;  not  before.  In  this,  as  in 
other  cases,  the  parties  are  apt  to  express  their  intentions  obscurely  ; 
very  often  because  the  circumstances  rendering  the  point  of  impor- 
tance are  not  present  to  their  minds,  so  that  they  really  had  no 
intention  to  express.  The  consequence  is,  that  without  absolutely 
losing  sight  of  the  fundamental  point  to  be  ascertained,  the  courts 
have  adopted  certain  rules  of  construction  which,  in  their  nature,  are 
more  or  less  technical.  Some  of  them  seem  very  well  fitted  to  aid  the 
court  in  discovering  the  intention  of  the  parties  ;  the  substantial  sense 
of  others  may  be  questioned.  The  parties  do  not  contemplate  a 
bargain  and  sale  till  the  specific  goods  on  which  their  contract  is  to 
attach  are  agreed  upon.  Where  the  goods  are  ascertained,  the  parties 
are  taken  to  contemplate  an  immediate  bargain  and  sale  of  the  goods, 
unless  there  be  something  to  indicate  an  intention  to  postpone  the 
transference  of  the  property  till  the  fulfilment  of  any  conditions  ;  and 
when  by  the  agreement  the  seller  is  to  do  anything  to  the  goods  for 
the  purpose  of  putting  them  into  a  deliverable  shape,  or  when  anything 
is  to  be  done  to  them  to  ascertain  the  price,  it  is  presumed  that  the 
parties  mean  to  make  the  performance  of  those  things  a  condition 
precedent  to  the  transfer  of  the  property.  But  as  these  are  only  rules 
for  the  construction  of  the  agreement,  they  must  yield  to  anything  in 
the  agreement  which  clearly  shows  a  contrary  intention.  The  parties 
may  lawfully  agree  to  an  immediate  transference  of  the  property  in  the 
goods,  although  the  seller  is  to  do  many  things  to  them  before  they 
are  to  be  delivered  ;  and,  on  the  other  hand,  they  may  agree  to  post- 
pone the  vesting  of  the  property  till  after  the  fulfilment  of  any 
conditions  they  please."  In  Benjamin  on  Sales,  214,  215,  the  same 
doctrine  is  laid  down,  and  it  is  said  that  "  nothing  prevents  the  par- 
ties from  agreeing  that  the  property  in  a  specific  thing  sold  and  ready 
for  delivery  is  not  to  pass  till  certain  conditions  are  accomplished,  or 
that  the  property  shall  pass  in  a  thing  which  remains  in  the  vendor's 
possession,  and  is  not  ready  for  delivery,  as  an  unfinished  ship,  or 
which  has  not  yet  been  weighed  or  measured,  as  a  cargo  of  corn  in 
bulk,  sold  at  a  certain  price  per  pound  or  per  bushel."  And  see  ib., 
221  et  seq. 

Upon  this  general  principle  there  is  no  difficulty  in  reconciling  most 
of  the  reported  decisions.  And  even  without  express  words  to  that 
effect,  a  contract  has  often  been  held  to  be  a  completed  sale,  where 
many  circumstances  were  wanting  and  many  things  to  be  done  by  one 
or  both  the  parties  to  fix  conclusively  the  sum  to  be  paid  or  to  deter- 
mine some  other  fact  material  to  their  respective  rights. 

The  most  important  fact  indicative  of  an  intent  that  title  shall  pass 
is  generally  that  of  delivery.     If  the  goods  be  completely  delivered  to 


62  LINGHAM    V.    EGGLESTON.  [CHAP.  II. 

the  purchaser,  it  is  usually  very  strong  if  not  conclusive  evidence  of 
intent  that  the  property  shall  vest  in  him  and  be  at  his  risk,  notwith- 
standing weighing,  measuring,  inspection,  or  some  other  act  is  to  be 
done  afterwards.  A  striking  case  in  illustration  is  that  of  Young  v. 
Mathews,  Law  R.,  2  Exch.  127,  where  a  large  quantity  of  bricks  was 
purchased  in  kilns.  Only  a  part  of  them  were  burned,  and  none  of 
them  were  counted  out  from  the  rest ;  but  they  were  paid  for,  and 
such  delivery  as  in  the  nature  of  the  case  was  practicable  was  made. 
The  court  held  that  the  question  was  one  of  intention  merely,  and 
that  it  was  evident  the  parties  intended  the  title  to  pass.  To  the 
same  effect  are  Woods  v.  Russell,  5  B.  &  Aid.  942  ;  Riddle  v.  Varnum, 
20  Pick.  280  ;  Bates  v.  Conklin,  10  Wend  389  ;  Olyphant  v.  Baker, 
5  Denio,  379  ;  Bogy  v.  Rhodes,  4  Greene  (Iowa),  133  ;  Crofoot  v. 
Bennett,  2  N.  Y.  258  ;  Cunningham  v.  Ashbrook,  20  Mo.  553. 

So,  if  the  goods  are  specified,  and  all  that  was  to  be  done  by  the 
vendor  in  respect  thereto  has  been  done,  the  title  may  pass,  though 
the  quantity  and  quality,  and  consequently  the  price  to  be  paid,  are 
still  to  be  determined  by  the  vendee.  Turley  v.  Bates,  2  H.  &  C. 
200;  Kohl  v.  Lindley,  39  111.  195. 

And  even  if  something  is  to  be  done  by  the  vendor,  but  only  when 
directed  by  the  vendee,  and  for  his  convenience,  as,  for  instance,  to 
load  the  goods  upon  a  vessel  for  transportation,  the  property  may 
pass  by  the  contract  of  sale  notwithstanding.  Whitcomb  v.  Whitney, 
24  Mich.  486  ;  Terry  v.  Wheeler,  25  N.  Y.  520. 

But  the  authorities  are  too  numerous  and  too  uniform  to  justify 
citation,  which  hold  that  where  anything  is  to  be  done  by  the  vendor, 
or  by  the  mutual  concurrence  of  both  parties,  for  the  purpose  of 
ascertaining  the  price  of  the  goods,  as  by  weighing,  testing,  or  meas- 
uring them,  where  the  price  is  to  depend  upon  the  quantity  or  quality 
of  the  goods,  the  performance  of  those  things  is  to  be  deemed  pre- 
sumptively a  condition  precedent  to  the  transfer  of  the  property, 
although  the  individual  goods  be  ascertained,  and  they  are  in  the 
state  in  which  they  may  and  ought  to  be  accepted. 

A  learned  author  from  whom  we  have  already  quoted,  says  of  this, 
that  "the  rule  seems  to  be  somewhat  hastily  adopted  from  the  civil 
law,  without  adverting  to  the  great  distinction  made  by  the  civilians 
I  ict  ween  a  sale  for  a  certain  price  in  money,  and  an  exchange  for  any- 
thing else.  The  English  law  makes  no  such  distinction,  but,  as  it 
seems,  has  adopted  the  rule  of  the  civil  law,  which  seems  to  have  no 
foundation  except  in  the  distinction.  In  general  the  weighing,  &c, 
must,  in  the  nature  of  things,  be  intended  to  be  done  before  the  buyer 
takes  possession  of  the  goods  ;  but  that  is  quite  a  different  thing  from 
intending  it  to  be  done  before  the  vesting  of  the  property;  and  as  it 
must  in  general  be  intended  that  both  the  parties  shall  concur  in  the 
act  of  weighing,  when  the  price  is  to  depend  upon  the  weight,  there 
seems  little  reason  why,  in  cases  in  which  the  specific  goods  are 
agreed  upon,  it  should  be  supposed  to  be  the  intention  of  the  parties 


SECT.  II.]  LINGIIAM    V.    EGGLESTON.  63 

to  render  the  delay  of  that  act,  in  which  the  buyer  is  to  concur,  bene- 
ficial to  him.  Whilst  the  price  remains  unascertained,  the  sale  is 
clearly  not  for  a  certain  sum  of  money,  and  therefore  does  not  come 
within  the  civilian's  definition  of  a  perfect  sale,  transferring  the  risk 
and  gain  of  the  thing  sold  ;  but  the  English  law  does  not  require  that 
the  consideration  for  a  bargain  and  sale  should  be  in  moneys  num- 
bered, provided  they  be  of  value."  Hut  the  same  writer,  with  candor 
and  justice,  adds  that  this  rule  is  now  "  firmly  established  as  English 
law."  Hlackburn  on  Sales,  153.  And  see  Turley  v.  Hates,  2  H.  &  C. 
200,  in  which  this  passage  is  quoted  and  the  conclusion  treated  as 
unquestionable. 

What,  then,  are  the  facts  in  this  case  from  which  the  intent  of  the 
parties  is  to  be  inferred  ?  The  lumber  was  specifically  designated,  so 
that  no  question  of  identity  could  arise.  It  was  not  delivered,  and 
the  vendor  was  to  place  it  on  board  the  cars,  if  desired  to  do  so  within  a 
time  specified  ;  but  as  in  any  event  the  vendees  were  to  take  it  at  Hirch 
Run,  and  it  was  optional  with  them  to  load  it  on  the  cars  themselves  or 
to  have  the  vendor  do  it  for  them,  and  they  had  no  right  to  require  that 
he  should  do  so  after  the  day  named,  we  think  the  circumstance  that 
actual  delivery  was  not  made  is  not  one  of  very  much  importance  in 
the  present  discussion.  What  is  of  more  importance  is,  that  neither 
the  quality  nor  the  quantity  was  determined  ;  and  the  evidence  in  the 
case  shows  that  as  to  these  there  might  very  well  be,  and  actually 
were,  great  differences  of  opinion.  The  price  to  be  paid  was  conse- 
quently not  ascertained,  and  could  not  be  until  the  qualities  were 
separated  and  measurement  had. 

It  will  be  observed  that  the  contract  did  not  provide  how  or  by 
whom  the  inspection  and  measurement  should  be  made.  It  was  cer- 
tainly not  the  right  of  either  party  to  bind  the  other  party  by  an 
inspection  and  measurement  of  his  own  ;  it  was  the  right  of  both  to 
participate,  and  we  must  suppose  such  was  the  intent,  unless  some- 
thing clearly  appears  in  the  case  to  show  the  contrary.  Nothing  of 
that  nature  appears  in  the  record  except  the  disputed  evidence  of 
defendants,  that  a  person  was  agreed  upon  for  the  purpose.  The  note 
sent  by  Lingham  to  Eggleston,  proposing  that  the  eight  cars  be 
loaded  and  that  the  vendees  make  the  proper  inspection,  was  a  mere 
proposition,  and  never  acted  upon.  It  is  very  evident  Eggleston  was 
under  no  obligation  to  trust  this  important  transaction  exclusively  to 
the  vendees,  and  we  have  no  right  to  infer  that  he  would  have  done 
so.  It  follows  that  something  of  high  importance  remained  to  be 
done  by  the  vendor  to  ascertain  the  price  to  be  paid  ;  and  as  this, 
under  all  the  authorities,  was  presumptively  a  condition  precedent  to 
the  transference  of  the  title,  —  nothing  to  the  contrary  appearing,  — 
the  court  should  have  so  instructed  the  jury.  The  instructions  given 
were  in  substance  directly  to  the  contrary. 

It  follows  that  the  judgment  must  be  reversed,  with  costs,  and  a 
new  trial  ordered. 

The  other  justices  concurred. 


34  SANGER   v.    WATEKBURY.  [CHAP.  II. 


SANGER   v.    WATERBURY. 
New  York  Court  of   Appeals,  October  8-22,   1889. 

[Reported  in  116  New  York,  371.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  second  judicial  department,  entered  upon  an  order  made 
December  14,  1886,  which  affirmed  a  judgment  in  favor  of  the  defend- 
ants, entered  upon  a  verdict  directed  by  the  court. 

This  was  an  action  of  replevin,  brought  to  recover  the  possession  of 
two  hundred  and  thirty-eight  bags  of  coffee,  identified  and  described 
in  the  complaint  as  follows  :  — 

«  89  bags,  marked  No.  6,  H.  L.  B.  &  Co.,  D.  B.  &  Co. 
32  bags,  marked  No.  8,  H.  L.  B.  &  Co.,  D.  B.  &  Co. 
14  bags,  marked  No.  10,  H.  L.  B.  &  Co.,  D.  B.  &  Co. 
29  bags,  marked  No.  12,  H.  L.  B.  &  Co.,  D.  B.  &  Co. 
68  bags,  marked  No.  14,  H.  L.  B.  &  Co.,  D.  B.  &  Co. 
6  bags,  marked  No.  16,  H.  L.  B.  &  Co.,  D.  B.  &  Co." 

The  complaint  alleged,  and  the  answer  admitted,  "  that  on  or  about 
the  22d  day  of  July,  1885,  the  said  goods  .  .  .  were  sold  by  the  plain- 
tiffs to  the  defendants  John  K.  Huston  and  James  E.  Huston,  ...  on 
the  credit  of  sixty  days  for  one-half  thereof,  and  of  ninety  days  for  the 
balance  thereof."  It  appeared  that  the  plaintiffs  on  the  6th  day  of 
July,  1885,  purchased  of  Boulton,  Bliss,  &  Dallet  605  bags  of  coffee, 
then  stored  with  E.  B.  Bartlett  &  Co.  On  the  twenty-second  day  of 
July  the  plaintiffs  sold  the  two  hundred  and  thirty-eight  bags  of  cof- 
fee hereinbefore  referred  to,  to  J.  K.  Huston  &  Co.,  of  Philadelphia. 
That  firm,  on  the  24th  day  of  July,  upon  the  security  of  the  coffee 
thus  purchased,  borrowed  from  the  defendants  Waterbury  &  Force 
82,300,  and  then  transferred  the  coffee  to  them.  On  July  twenty- 
seventh  following,  said  firm  failed,  making  a  general  assignment. 
On  the  next  day  the  plaintiffs  commenced  this  action,  by  means  of 
which  the  coffee  was  taken  from  the  possession  of  Waterbury  &  Force. 
The  coffee  then  was,  as  it  had  been  from  the  time  of  the  purchase  by 
the  plaintiffs,  actually  deposited  in  the  warehouse  of  E.  B.  Bartlett  & 
Co.,  and  had  not,  as  yet,  been  weighed. 

William  W.  Goodrich,  for  appellants. 

Edivard  31.  Shepard,  for  respondents. 

Parker,  J.  The  appellant  contends  that  the  title  to  the  coffee  in 
controversy  did  not  pass  to  J.  K.  Huston  &  Co.,  and  that,  therefore, 
the  transfer  to  Waterbury  &  Force  did  not  vest  in  them  the  title  or 
the  possession.  The  sale  is  admitted.  But  as  the  coffee  had  to  be 
weighed  in  order  to  ascertain  the  amount  to  be  paid  to  plaintiffs,  it  is 
insisted  that  the  title  remained  in  the  plaintiffs.  In  aid  of  this  con- 
tention is  invoked  the  rule  that  where  something  remains  to  be  done 


SECT.  II.]  SANGER    V.    WATERBUKY.  65 

by  the  seller  to  ascertain  the  identity,  quantity,  or  quality  of  the  article 
sold,  or  to  put  it  in  the  condition  which  the  contract  requires,  the 
title  remains  in  the  vendor  until  the  condition  be  complied  with.  The 
appellant  cites  a  number  of  authorities  which,  he  urges,  so  apply  this 
rule  as  to  make  it  applicable  to  the  case  here  presented.  It  is  said  in 
Groat  et  al.  v.  Gile,  51  N.  Y.  451,  that  "  this  rule  has  reference  to  a 
sale,  not  of  specific  property  clearly  ascertained,  but  of  such  as  is  to 
be  separated  from  a  larger  quantity,  and  is  necessary  to  be  identified 
before  it  is  susceptible  of  delivery.  The  rule  or  principle  does  not 
apply  where  the  number  of  the  particular  articles  sold  is  to  be  ascer- 
tained for  the  sole  purpose  of  determining  the  total  value  thereof  at 
certain  specified  rates  or  a  designated  fixed  price."  This  distinction  is 
recognized  and  enforced  in  Crofoot  v.  Bennett,  2  N.  Y.  258  ;  Kimberly 
v.  Patehin,  19  N.  Y.  330;  Bradley  v.  Wheeler,  44  id.  495.  In  Cro- 
foot v.  Bennett  (supra),  the  court  say:  "  If  the  goods  sold  are  clearly 
identified,  then,  although  it  may  be  necessary  to  number,  weigh,  or 
measure  them,  in  order  to  ascertain  what  would  be  the  price  of  the 
whole  at  a  rate  agreed  upon  between  the  parties,  the  title  will  pass." 
This  expression  of  the  court  is  cited  with  approval  in  Burrows  v. 
Whitaker,  71  N.  Y.  291,  in  which  case,  after  a  full  discussion  of  the 
authorities,  the  court  approved  the  rule  as  laid  down  in  Groat  v.  Gile 
(supra). 

Now,  applying  that  rule  to  the  facts  in  this  case,  nothing  remained 
to  be  done  in  order  to  identify  the  goods  sold,  because,  while  out  of  a 
larger  lot  two  hundred  and  thirty-eight  bags  of  coffee  were  disposed 
of,  nevertheless,  as  appears  from  the  complaint  and  the  testimony  ad- 
duced, the  bags  were  so  marked  that  there  was  no  difficulty  about 
identifying  the  particular  bags  sold.  There  remained,  therefore, 
nothing  to  be  done  except  to  weigh  the  coffee  for  the  purpose  of  ascer- 
taining the  purchase-price.  For  whether  the  two  hundred  and  thirty- 
eight  bags  of  coffee  should  prove  to  weigh  more  or  less  than  the  parties 
anticipated  was  not  of  any  consequence.  Whatever  should  prove  to  be 
for  that  number  of  pounds,  J.  K.  Huston  &  Co.  had  agreed  to  pay. 

This  case,  therefore,  does  not  come  within  the  rule  contended  for  by 
the  appellant,  but  instead  is  governed  by  the  principle  enunciated  in 
Groat  v.  Gile. 

Having  reached  the  conclusion  that  the  title  and  the  possession 
passed  to  J.  K.  Huston  &  Co.,  it  becomes  unnecessaiy  to  consider  any 
of  the  other  questions  discussed,  for  the  plaintiff  is  without  title  upon 
which  to  found  the  right  to  maintain  an  action. 

The  judgment  appealed  from  should  be  affirmed. 

All  concur.  Judgment  affirmed 


66  BISHOP    V.    SIIILLITC.  [CHAP.  II. 


SECTION   III. 

Sales  of  Specific   Goods,   conditional   upon   paying  or  securing 

the  price. 

BISHOP  v.   SHILLITO. 
In  the  King's  Bench,  Hilary  Term,   1819. 

[Reported  in  2  Barnewall  Sf  Alderson,  329,  n.  («).] 

Trover  for  iron.  The  iron  was  to  be  delivered  under  a  contract 
that  certain  bills  outstanding  against  the  plaintiff  should  be  taken  out 
of  circulation.  After  a  part  of  the  iron  had  been  delivered,  and  no  bills 
had  been  taken  out  of  circulation,  the  plaintiff  stopped  the  farther 
delivery,  and  brought  trover  for  what  had  been  delivered.  Scarlett, 
for  defendant,  contended  that  trover  would  not  lie,  and  that  the  only 
remedy  for  the  plaintiff  was  to  bring  an  action  for  the  breach  of  the 
contract  by  the  defendant.  But  the  court  held  that  this  was  only  a 
conditional  delivery,  and  the  condition  being  broken,  the  plaintiff  might 
bring  trover.  Abbott,  C.  J.,  said  he  had  left  it  to  the  jury  to  say 
whether  the  delivery  of  the  iron  and  the  redelivery  of  the  bills  were  to 
be  contemporary,  and  that  the  jury  found  that  fact  in  the  affirmative  ; 
and  Bayley,  J.,  added,  that  if  a  tradesman  sold  goods  to  lie  paid  for  on 
delivery,  and  his  servant  by  mistake  delivers  them  without  receiving 
the  money,  he  may,  after  demand  and  refusal  to  deliver  or  pay,  bring 
trover  for  his  goods  against  the  purchaser.1 

1  Yaxley.  ...  If  I  come  to  another  to  buy  a  piece  of  cloth,  and  ask  the  price,  and 
he  savs  that  I  may  have  it  for  20  sh.,  then  I  cannot  take  it,  unless  I  pay  him  the  20  ah., 
and  this  is  the  reason,  if  I  take  the  cloth  on  the  strength  of  this  bargain,  the  other 
cannot  take  the  money  from  me,  and  perhaps  I  am  not  worth  the  money  ,  so  that  it  is 
implied  in  the  bargain  that  he  will  pay  the  money  now  for  the  cloth,  <>r  otherwise  he 
shall  not  have  it.  But  if  it  be  on  time,  it  is  a  good  bargain,  because  1  have  given  him 
express  liberty  to  pay  on  such  a  day.  And  in  case  I  buy  a  horse  for  an  ox,  there  the 
bargain  is  good  without  giving  a  day  or  making  immediate  delivery  ;  for  if  I  can  take 
the  horse,  he  can  take  the  ox,  and  the  property  is  in  him  now,  but  of  money  it  is 
otherwise,  for  I  cannot  take  it,  so  that  if  it  he  called  a  bargain  in  law,  peradventure 
tin  party  may  be  without  remedy  for  the  money.  Wherefore  the  law  will  not  adjudge 
it  a  bargain  until  the  money  be  paid  or  day  given  as  above.  Tremaile.  I  say  if  one 
whom  I  know  sells  me  a  horse  for  20  sh.  and  delivers  it,  now  the  property  of  the  horse 
is  in  me.  although  I  do  not  pay  him,  and  no  day  is  given  when  payment  shall  lie  made, 
if  the  sale  he  outside  a  market,  between  persons  known  to  each  other;  hut  in  a  market 
between  those  who  are  strangers,  and  not  known  to  each  other,  there  the  money 
oiiurln  to  hi-  delivered  immediately  as  well  as  the  horse,  or  otherwise  it  is  only  a  com- 
munication ;  but  there  was  here  between  them  a  sale,  and  the  vendor  can  have  action 
of  debt  for  this  sum.  .  .  .  Finkix,  Chief  Jcsticb.  If  one  buy  a  piece  of  cloth, 
and  ask  the  price  of  the  merchant,  and  he  says  20  sh.,  and  the  party  says  that  he  will 
give  it,  and  takes  the  cloth,  I  say  that  it  is  in  the  election  of  the  merchant  to  treat  this 
as  a  bargain  or  not,  for  if  he  wish  he  may  have  an  action  of  debt,  and  he  may  if  he 


SECT.  III.]  BUSSEY    V.    BA.RNETT.  67 


BUSSEY   v.    BARNETT. 
In  the  Exchequer,  January   14,  1842. 

[Reported  in  9  Meeson  $-  Welsby,  312.] 

Debt  for  goods  sold  and  delivered,  and  on  an  account  stated.  The 
particulars  of  demand  claimed  the  sum  of  £3  5s.  6d.,  being  the  balance 
of  an  account  for  goods  sold  and  delivered  by  the  plaintiff  to  the 
defendant.  Pleas,  except  as  to  the  sum  of  4s.  Or/.,  parcel,  &c,  nun- 
quam indebitatus  ;  as  to  that  sum,  a  tender  .  which  was  denied  by 
the  replication.  At  the  trial  before  the  under-sheriff  of  Middlesex,  it 
appeared  that  the  action  was  brought  to  recover  an  alleged  balance  of 
a  disputed  account  for  goods  bought  by  the  defendant,  for  ready 
money,  at  the  plaintiff's  shop.  The  defendant  produced  evidence  to 
prove  that,  within  ten  minutes  after  the  delivery  of  the  goods  at  his 
house,  he  paid  for  them  in  full,  with  the  exception  of  the  4s.  6cl,  as  to 
which  the  tender  was  pleaded.  It  was  objected  for  the  plaintiff,  that  it 
was  not  competent  to  the  defendant  to  give  evidence  of  this  payment, 
there  being  no  plea  of  payment  on  the  record  ;  but  the  under-sheriff 
thought  that,  under  the  circumstances,  no  debt  ever  arose  between  the 
parties,  and  therefore  the  evidence  was  admissible  under  the  plea  of 
nunquam  indebitatus,  and  he  accordingly  received  it ;  and  the  tender 
being  also  proved  to  the  satisfaction  of  the  jury,  the  defendant  had  a 
verdict  on  both  issues. 

C.  Jones  now  moved  for  a  new  trial,  on  the  ground  of  misdirection, 
and  contended  that  the  defence  was  inadmissible  without  a  plea  of  pay- 
ment. [Alderson,  B.  The  plea  of  nunquam  indebitatus  means  that 
there  never  was  a  sale  of  goods  to  the  defendant  on  credit.  This  was 
a  mere  exchange  of  goods  for  money,  and  a  debt  never  arose.  Lord 
Abinger,  C.  B.  There  was  no  contract  whereby  the  defendant  became 
indebted  to  the  plaintiff.]  In  Goodchild  v.  Pledge,  1  M.  &  \Y.  363, 
where  to  a  count  in  debt  for  £20  for  goods  sold  and  delivered,  the  de- 
fendant pleaded  that  before  the  commencement  of  the  suit,  and  when 
the  said  sum  of  £20  became  due  and  payable,  to  wit.  on.  &c,  the 
defendant  paid  the  plaintiff  the  said  sum  of  £20.  according  to  the  de- 
fendant's said  contract  and  liability  ;  this  plea  was  held  bad  on  demurrer 
for  concluding  to  the  country,  and  not  with  a  verification  :  and  Parke.  B., 

wish  retaiu  the  property  until  he  receives  the  other's  money  Ami  if  the  other  take 
the  el. ali  by  reason  of  that  bargain  against  the  vendor's  will,  he  may  have  au  action 
of  trespass.  .  .  .  Y.  B.  2\  Ily.  VII  o,  4.     (1505-6). 

Briax.  If  1  sell  yon  my  horse  for  CIO,  it  is  lawful  for  me  to  retain  the  horse  until 
I  am  paid,  and  yet  I  have  no  action  of  debl  on  the  coutrad  until  the  horse  is  deliv- 
ered; ami  it  is  clear  that  by  the  bargain  the  property  was  in  him  who  bought  the 
horse,  but  if  the  buyer  offers  him  the  money,  ami  lie  refuses,  then  he  may  seize  the 
horse,  or  have  action  of  detinue  or  action  of  trespass  at  bis  pleasure  &c.  Y.  V,  \s 
Edw.  IV.  21,  1.     (1478-9). 


63  PAUL   V.   REED.  [CHAI\  II. 

there  says  :  "  The  moment  the  goods  are  delivered,  is  there  not  a  cause 
of  action,  throwing  the  proof  of  its  discharge  on  the  defendant?" 
And  he  adds,  "  The  new  general  issue,  that  the  defendant  never  was 
indebted,  that  is,  at  no  instant  of  time,  was  framed  for  the  express 
purpose  of  making  all  these  defences  pleadable  by  way  of  discharge." 
[Alderson,  B.  AYhat  the  learned  judge  there  means  is,  that  the 
moment  goods  are  delivered  on  credit,  a  contract  arises  whereby  the 
defendant  becomes  indebted.  No  doubt  that  was  a  proper  case  for  a 
plea  of  payment.]  This  was  a  defence  in  the  nature  of  confession  and 
avoidance. 

Lord  Abinger,  C.  B.  In  this  case  the  goods  were  not  delivered 
upon  a  contract  out  of  which  a  debt  arose  ;  there  was  no  promise  to 
pa}',  but  immediate  payment. 

Alderson,  B.  Where  there  is  a  contract  for  the  sale  and  delivery  of 
goods  for  ready  money,  and  ready  money  is  paid,  there  is  no  debt. 

Gurnet,  B.,  concurred.  Rule  refused. 


PAUL    v.    REED. 

Supreme  Judicial  Court  of  New  Hampshire.  June,  1872. 

[Reported  in  52  New  Hampshire,  136] 

The  substance  of  the  disclosure  of  the  trustee  in  Azor  Paul  against 
Dexter  G.  Reed,  and  Dana  R.  Moody,  trustee,  was  as  follows  :   I  moved 
into  Mr.  Edes's  boarding-house  on  the  30th  day  of  October  last.     Said 
Reed  had  been  keeping  the  house  for  Mr.  Edes  as  boarding-master  ; 
he  furnished  breakfast  that  morning  as  such,  and  I  furnished  the  din- 
ner.    Soon  after  breakfast  we  examined  the  hog,  butter,  sugar,  tea, 
and  other  articles.     Agreed  upon  the  price  of  each  item.     I  put  the 
sugar  in  with  other  sugar  of  mine.     We  changed  the  hog.  at  my  re- 
quest, from  one  pen  to  another,  to  have  him  where  I  wanted  to  keep 
him.      We   figured   up  what  the   articles   at  the  prices  agreed   upon 
amounted  to,  and  found  they  came  to  thirty  dollars  and  thirty  cents. 
I  took  out  my  wallet  to  pay  him  for  the  articles,  but  before  I  could  get 
the  money  ready  to  deliver  him,  I  was  trusteed.     The  articles  were 
these:  hog,  $10.50;   flour,  $7;  butter,  810;  bedstead,  $1  ;  sugar  and 
salt.  $1.80.     I  was  moving  in, — had  got  one  load  in  the  house;  he 
was  moving  out  at  the  time  of  said  occurrence.      Mr.   Reed  kept  a 
memorandum,  and  carried  out  the  price  of eaeh  article  as  it  was  agreed 
upon.     Sheriff  Barton  served  the  process  as  Mr.  Reed  was  figuring  up 
the  account.     I  think  the  amount  of  the  bill  had  not  been  announced 
by  Reed  before  the  writ  was  served.     I  had  the  money  to  pay  the  bill 
m  my  pocket-book,  and  the  pocket-book  in  my  hand,  looking  over  the 
figures,  when  the  writ  was  served.     We  understood  I  was  to  pay  cash 
r'^ht  in  his  fingers  ;   I  did  not  ask  any  time  for  him  to  wait.     Reed 


SECT.  III.]  PAUL   V.    KEED.  G9 

asked  me  to  give  up  the  articles  to  him  after  service  of  process.  I 
think  he  said,  We  can  call  it  no  sale,  and  I  can  take  my  stuff.  He 
gave  as  a  reason,  that  I  had  not  paid  him  for  it.  I  told  him  I  would 
ask  Esquire  "Bowers  and  Esquire  Edes,  and  if  they  said  1  was  safe  to 
give  it  up,  I  had  no  objections  to  giving  it  up.  Edes  told  me  to  let  it 
stand  ;   it  would  he  a  question. 

The  court  held  the  trustee  chargeable  for  $30.30.  The  principal 
defendant,  claiming  the  property  described  in  the  disclosure,  excepted, 
and  the  question  was  reserved. 

liowers,  for  the  plaintiff. 

S.  H.  Edes.  for  the  defendant  and  trustee. 

Bellows,  C.  J.  Unless  the  principal  defendant  had  another  hog 
and  other  provisions  or  fuel,  so  that  the  value  of  his  provisions  and 
fuel  exceeded  twenty  dollars,  all  the  articles  sold  to  the  trustee  were 
exempt  from  attachment.  As  there  is  no  proof  that  he  had  another 
hog,  or  more  provisions,  or  fuel,  the  court  cannot  find  that  he  had 
such  ;  aud,  therefore,  unless  the  title  in  these  goods  had  vested  in  the 
trustee  so  that  he  became  indebted  for  them,  the  trustee  must  be 
discharged. 

The  question  then  is,  whether  the  goods  were  delivered  so  as  to  vest 
the  title  in  the  trustee. 

The  proof  tends  to  show  that  the  sale  was  for  cash,  and  not  on 
credit;  so  the  trustee  testifies,  and  this  is  just  what  would  have  been 
intended  had  no  time  of  payment  been  stipulated.  2  Kent's  Com. 
*496,  *497;  Story  on  Con.,  sec.  796;  Noy's  Maxims,  87;  Ins.  Co.  v. 
De  Wolf,  2  Cow.  105.  The  case,  then,  stands  before  us  as  a  contract 
of  sale  for  cash  on  delivery  :  in  such  case  the  delivery  and  payment 
are  to  be  concurrent  acts  ;  and  therefore,  if  the  goods  are  put  into  the 
possession  of  the  buyer  in  the  expectation  that  he  will  immediately  pay 
the  price,  and  he  does  not  do  it.  the  seller  is  at  liberty  to  regard  the 
delivery  as  conditional,  and  may  at  once  reclaim  the  goods.  In  such  a 
case  the  contract  of  sale  is  not  consummated,  and  the  title  does  not  vest 
in  the  buyer.  The  seller  may,  to  be  sure,  waive  the  payment  of  the 
price,  and  agree  to  postpone  it  to  a  future  day.  and  proceed  to  complete 
the  delivery  ;  in  which  case  it  would  be  absolute,  and  the  title  would 
vest  in  the  buyer.  But  in  order  to  have  this  effect,  it  must  appear  that  / 
the  goods  were  put  into  the  buyer's  possession  with  the  intention  of 
vesting  the  title  in  him. 

If,  however,  the  delivery  and  payment  were  to  be  simultaneous,  and 
the  goods  were  delivered  in  the  expectation  that  the  price  would  be 
immediately  paid,  the  refusal  to  make  payment  would  be  such  a  failure 
on  the  part  of  the  buyer  to  perform  the  contract  as  to  entitle  the  seller 
to  put  an  end  to  it  and  reclaim  the  goods. 

This  is  not  only  eminently  just,  but  it  is  in  accordance  with  the  great 
current  of  authorities,  which  treat  the  delivery,  under  such  circum- 
stances, as  conditional  upon  the  immediate  payment  of  the  price. 
2  Kent's  Com.  *497  ;  Chitty  on  Con.,  9th  Am.  ed.,  *350,  note  1  and 


70  PAUL    V.    REED.  [CHAP.  II. 

cases;  Story  on  Con.,  sees.  796,  804  ;  Palmer  v.  Hand,  13  Johns.  434  ; 
Marstoa  v.  Baldwin,  17  Mass.  605;  Leven  v.  Smith,  1  Denio,  573.  and 
cases  cited.  So  the  doctrine  was  fully  recognized  in  Russell  v.  Minor, 
22  Wend.  659,  where,  on  the  sale  of  paper,  it  was  agreed  that  the  buyer 
should  give  bis  notes  for  it  on  delivery,  and  the  delivery  was  in  several 
parcels.  Ou  delivery  of  the  first,  the  seller  asked  for  a  note  ;  but  tbe 
buyer  answered  that  he  would  give  bis  note  for  the  wbole  when  tbe 
remainder  was  delivered,  and  the  parcel  now  delivered  could  remain 
until  then.  When  the  rest  was  delivered,  the  defendant  refused  to  give 
bis  note  ;  and  the  court  held  that  the  delivery  of  all  the  goods  was  con- 
ditional, and  that  the  seller  might  maintain  replevin  for  all  the  goods. 
The  general  doctrine  is  fully  recognized  in  this  State  in  Luey  v.  Bundv, 
9  N.  H.  298,  and  more  especially  in  Ferguson  v.  Clifford,  37  N.  H.  86, 
where  it  is  laid  down  that  if  the  delivery  takes  place  when  payment  is 
expected  simultaneously  therewith,  it  is  in  law  made  upon  the  condition 
precedent  that  the  price  shall  forthwith  be  paid.  If  this  condition  be 
not  performed,  the  delivery  is  inoperative  to  pass  the  title  to  the 
property,  and  it  may  be  instantly  reclaimed  by  the  vendor. 

The  question  then  is,  whether  the  delivery  here  was  absolute,  intend- 
ing to  pass  the  title  to  the  vendee  and  trust  him  for  the  price,  or 
whether  it  was  made  with  the  expectation  that  the  cash  would  be  paid 
immediately  on  the  delivery.  This  is  a  question  of  fact,  but  it  is  sub- 
mitted to  the  court  for  decision.  Ordinarily  it  should  be  passed  upon 
at  the  trial  term  ;  but  where  the  question  is  a  mixed  one  of  law  and 
fact,  as  it  is  here,  it  may  not  be  irregular,  if  the  judge  thinks  it  best,  to 
reserve  the  entire  question  for  the  whole  court.  Assuming  that  the 
questions  both  of  law  and  fact  are  reserved,  we  find  that  the  goods  were 
sold  for  cash,  and  of  course  that  the  delivery  of  the  goods  and  the  pay- 
ment of  the  price  were  to  be  simultaneous  ;  and  according!}',  when  a 
part  had  been  delivered,  and  the  seller  was  figuring  up  the  amount,  and 
the  buyer  had  taken  out  his  money  to  pa}'  the  price,  the  act  was  arrested 
by  the  service  of  this  process. 

The  evidence  relied  upon  to  prove  the  delivery  to  be  absolute  and 
intended  to  pass  the  title  at  all  events,  is  simply  and  solely  the  chang- 
ing of  the  hog  into  another  pen,  and  mixing  the  sugar  with  other  sugar 
of  the  buyer.  Without  this  mixing  of  the  sugar,  the  case  would  be  just 
the  ordinary  one  of  a  delivery  of  the  goods  with  the  expectation  that 
the  buyer  would  at  once  pay  the  price  ;  and  we  think  that  circumstance 
is  not  enough  to  show  a  purpose  to  make  the  delivery  absolute,  but 
rather  a  confident  expectation  that  the  buyer  would  do  as  he  had  agreed, 
and  pay  the  price  at  once.  The  case  of  Henderson  v.  Lauck,  21  Penn. 
St.  859,  w;is  very  much  like  this.  There  was  a  sale  of  corn,  to  be  paid 
for  on  the  delivery  of  the  last  load;  and  as  the  loads  were  delivered, 
the  corn  was  placed  in  a  heap  with  other  corn  of  the  buyer,  in  the 
presence  of  both  parties.  On  the  delivery  of  the  last  lot,  the  buyer 
failed  to  pay.  and  the  seller  gave  notice  that,  he  claimed  the  corn,  and 
brought   replevin,   which   was    held    to   lie.  —the  court  regarding  the 


SECT.  III.]  HARKNESS   V.    RUSSELL.  71 

delivery  as  conditional,  and  the  plaintiff  in  no  fault  for  the  intermin- 
gling of  the  corn.  It  is  very  clear  that  the  intermingling  of  the  sugar 
does  not,  as  matter  of  law,  make  the  delivery  absolute  ;  and  I  think,  as 
matter  of  fact,  it  is  not  sufficient  to  prove  an  intention  to  pass  the  title 
absolutely.  When  the  buyer  declined  to  pay  the  price,  the  seller  at  once 
reclaimed  the  goods,  and  so  notified  the  buyer,  who  did  not  object  to 
giving  up  the  sale  if  he  could  safely  do  so. 

In  respect  to  the  question  now  before  us,  it  is  not  material  for  what 
reason  the  buyer  declined  to  pay  for  the  goods,  although  the  service  of 
the  trustee  process  might  shield  him  from  damages  in  a  suit  by  the 
seller  for  not  taking  and  paying  for  the  goods.  For  the  purposes  of  this 
question,  it  is  enough  that  the  buyer  did  not  pay  the  price,  and  thus 
gave  the  seller  a  right  to  reclaim  the  goods,  which  he  did  at  once. 
The  goods  themselves  were  exempt  from  attachment ;  and  the  fact  that 
the  trustee  process  was  designed  to  intercept  the  price  of  those  goods, 
could  not  affect  his  right  to  reclaim  them  when  the  buyer  declined  to 
pay  the  price. 

The  exception  must  therefore  be  sustained,  and  the 

Trustee  discharged. 


HARKNESS  v.  RUSSELL. 

Supreme    Court    of    the    United    States,    November    17,    1885- 
November  8,  1886. 

[Reported  in  118   United  States,  663.] 

This  was  an  appeal  from  the  Supreme  Court  of  Utah.  The  action 
was  brought  in  the  District  Court  for  Weber  County,  to  recover  the 
value  of  two  steam-engines  and  boilers,  and  a  portable  saw- mill  con- 
nected with  each  engine.  A  jury  being  waived,  the  court  found  the  facts 
and  rendered  judgment  for  the  plaintiff,  Russell  &  Co.  The  plaintiff  is 
an  Ohio  corporation,  and  by  its  agent  in  Idaho,  on  the  2d  of  October, 
1882,  agreed  with  a  partnership  firm  by  the  name  of  Phelan  &  Ferguson, 
residents  of  Idaho,  to  sell  to  them  the  said  engines,  boilers,  and  saw- 
mills for  the  price  of  $4988,  nearly  all  of  which  was  secured  by  certain 
promissory  notes,  which  severally  contained  the  terms  of  the  agreement 
between  the  parties.  One  of  the  notes  (the  others  being  in  the  same 
form)  was  as  follows,  to  wit : 

Salt  Lake  City,  Oct.  2,  1882. 
On  or  before  the  first  day  of  May,  1883,  for  value  received  in  one 
sixteen-horse  portable  engine,  No.  1026,  and  one  portable  saw-mill.  No. 
128,  all  complete,  bought  of  L.  B.  Mattison,  agent  of  Russell  &  Co., 
we.  or  either  of  us,  promise  to  pay  to  the  order  of  Russell  &  Co., 
Massillon,  Ohio,  §300,  payable  at  Wells.  Fargo  &  Co.'s  bank.  Salt  Lake 
City,  Utah  Territory,  with  ten  per  cent  interest  per  annum  from  Octo- 


72  HAEKNESS   V.    RUSSELL.  |_CHAP.  II. 

ber  1,  1882,  until  paid,  and  reasonable  attorney's  fees,  or  any  costs  that 
may  be  paid  or  incurred  in  any  action  or  proceeding  instituted  for  the 
collection  of  this  note  or  enforcement  of  this  covenant.  The  express 
condition  of  this  transaction  is  such  that  the  title,  ownership,  or  posses- 
sion of  said  engine  and  saw-mill  does  not  pass  from  the  said  Russell  & 
Co.  until  this  note  and  interest  shall  have  been  paid  in  full,  and  the  said 
Russell  &  Co.  or  his  agent  has  full  power  to  declare  this  note  due  and 
take  possession  of  said  engine  and  saw-mill  when  the}'  may  deem  them- 
selves insecure,  even  before  the  maturity  of  this  note  ;  and  it  is  further 
agreed  by  the  makers  hereof,  that  if  said  note  is  not  paid  at  maturity, 
that  the  interest  shall  be  two  per  cent  per  month  from  maturity  hereof 
till  paid,  both  before  and  after  judgment,  if  any  should  be  rendered.  In 
case  said  saw-mill  and  engine  shall  be  taken  back,  Russell  &  Co.  may 
sell  the  same  at  public  or  private  sale  without  notice,  or  the}'  may  with- 
out sale  endorse  the  true  value  of  the  property  on  this  note,  and  we 
agree  to  pay  on  the  note  any  balance  due  thereon  after  such  endorse- 
ment, as  damages  and  rental  for  said  machinery.  As  to  this  debt  we 
waive  the  right  to  exempt  or  claim  as  exempt  any  property,  real  or  per- 
sonal, we  now  own,  or  may  hereafter  acquire,  by  virtue  of  any  homestead 
or  exemption  law,  State  or  Federal,  now  in  force,  or  that  hereafter  may 
be  enacted 

P.  O.,  Oxford,  Oneida  County,  Idaho  Territory. 

Piielan  &  Ferguson. 


Some  of  the  notes  were  given  for  the  price  of  one  of  the  engines  with 
its  accompanying  boiler  and  mill,  and  the  others  for  the  price  of  the 
other.  Some  of  the  notes  were  paid  ;  and  the  present  suit  was  brought 
on  those  that  were  not  paid.  The  property  was  delivered  to  Phelan  & 
Ferguson,  on  the  execution  of  the  notes,  and  subsequently  they  sold  it 
to  the  defendant  Harkness,  in  part  payment  of  a  debt  due  from  them  to 
him  and  one  Langsdorf.  The  defendant,  at  the  time  of  the  sale  to 
him,  knew  that  the  purchase-price  of  the  property  had  not  been  paid 
to  the  plaintiff,  and  that  the  plaintiff  claimed  title  thereto  until  such 
payment  was  made.  The  unpaid  notes  given  for  each  engine  and  mill 
exceeded  in  amount  the  value  of  such  engine  and  mill  when  the  action 
was  commenced. 

The  Territory  of  Idaho  has  a  law  relating  to  chattel  mortgages  [Act 
of  January  12,  1875],  requiring  that  every  such  mortgage  shall  set  out 
certain  particulars  as  to  parties,  time,  amount,  &c,  with  an  affidavit 
attached,  that  it  is  bona  fide,  and  made  without  any  design  to  defraud 
and  delay  creditors  ;  and  requiring  the  mortgage  and  affidavit  to  be  re- 
corded in  the  county  where  the  mortgagor  lives,  and  in  that  where  the 
property  is  located  ;  and  it  is  declared  that  no  chattel  mortgage  shall  be 
valid  (except  as  between  the  parties  thereto)  without  compliance  with 
these  requisites,  unless  the  mortgagee  shall  have  actual  possession  of 
the  property  mortgaged.  In  the  present  case  no  affidavit  was  attached 
to  the  notes,  nor  were  they  recorded. 


SECT.  III.]  HAEKNEBS   V.    RUSSELL.  73 

The  court  found  that  it  was  the  intention  of  Phelan  &  Ferguson,  and 
of  Russell  &  Co.,  that  the  title  to  the  said  property  should  not  pass  from 
Russell  &  Co.  until  all  the  notes  were  paid. 

Upon  these  facts  the  court  found,  as  conclusions  of  law,  that  the 
transaction  between  Phelan  &  Ferguson  and  Russell  &  Co.  was  a  con- 
ditional, or  executory  sale,  and  not  an  absolute  sale  with  a  lien  reserved, 
and  that  the  title  did  not  pass  to  Phelan  &  Ferguson,  or  from  them  to 
the  defendant;  and  gave  judgment  for  the  plaintiff'.  The  Supreme 
Court  of  the  Territory  affirmed  this  judgment.  This  appeal  was  taken 
from  that  judgment. 

Mr.  Parley  L.  Williams  (3fr.  James  JY.  Kimball  and  Mr.  Abbot  K. 
lliijicood  were  with  him  on  the  brief),  for  appellant. 

Mr.  Charles  W.  Bennett,  for  appellee. 

Mr.  Justice  Bradley,  after  stating  the  facts  as  above  reported,  de- 
livered the  opinion  of  the  court. 

The  first  question  to  be  considered  is,  whether  the  transaction  in 
question  was  a  conditional  sale  or  a  mortgage  ;  that  is,  whether  it  was  a 
mere  agreement  to  sell  upon  a  condition  to  be  performed,  or  an  absolute 
sale,  with  a  reservation  of  a  lien  or  mortgage  to  secure  the  purchase- 
money.  If  it  was  the  latter,  it  is  conceded  that  the  lien  or  mortgage 
was  void  as  against  third  persons  because  not  verified  by  affidavit  and 
not  recorded  as  required  by  the  law  of  Idaho.  But,  so  far  as  words 
and  the  express  intent  of  the  parties  can  go,  it  is  perfectly  evident  that 
it  was  not  an  absolute  sale,  but  only  an  agreement  to  sell  upon  condition 
that  the  purchasers  should  pay  their  notes  at  maturity.  The  language 
is  :  "  The  express  condition  of  this  transaction  is  such  that  the  title  .  .  . 
does  not  pass  .  .  .  until  this  note  and  interest  shall  have  been  paid  in 
full."  If  the  vendees  should  fail  in  this,  or  if  the  vendors  should  deem 
themselves  insecure  before  the  maturity  of  the  notes,  the  latter  were 
authorized  to  repossess  themselves  of  the  machinery,  and  credit  the 
then  value  of  it,  or  the  proceeds  of  it  if  they  should  sell  it,  upon  the 
unpaid  notes.  If  this  did  not  pay  the  notes,  the  balance  was  still  to  be 
paid  by  the  makers  by  way  of  "damages  and  rental  for  said  machinerv." 
This  stipulation  was  strictly  in  accordance  with  the  rule  of  damages'  in 
such  cases.  Upon  an  agreement  to  sell,  if  the  purchaser  fails  to  exe- 
cute his  contract,  the  true  measure  of  damages  for  its  breach  is  the  dif- 
ference between  the  price  of  the  goods  agreed  on  and  their  value  at  the 
time  of  the  breaeh  or  trial,  which  may  fairly  be  stipulated  to  be  the  price 
they  bring  on  a  re-sale.  It  cannot  be  said,  therefore,  that  the  stipula- 
tions of  the  contract  were  inconsistent  with,  or  repugnant  to,  what  the 
parties  declared  their  intention  to  be.  namely,  to  mala'  an  executory  and 
conditional  contract  of  sale.  Such  contracts  are  well  known  in  the  law 
and  often  recognized;  and  when  free  from  any  fraudulent  intent  are  not 
repugnant  to  any  principle  of  justice  or  equity,  even  though  possession 
of  the  property  be  given  to  the  proposed  purchaser.  The  rule  is  formu- 
lated in  the  text-books  and  in  many  adjudged  cases.  In  Lord  Black- 
burn's Treatise  on  the  Contract  of  Sale,  published  forty  years  ago,  two 


74  IIARKNESS    V.    RUSSELL.  [CHAP.  II. 

rules  are  laid  down  as  established  :  (1)  That  where  by  the  agreement 
the  vendor  is  to  do  anything  to  the  goods  before  deliver}',  it  is  a  con- 
dition precedent  to  the  vesting  of  the  property.  (2)  That  where  any- 
thing remains  to  be  done  to  the  goods  for  ascertaining  the  price,  such 
as  weighing,  testing,  &c,  this  is  a  condition  precedent  to  the  transfer 
of  the  property.  Blackburn  on  Sales,  152.  And  it  is  subsequently 
added,  that  '•  the  parties  may  indicate  an  intention,  by  their  agreement, 
to  make  any  condition  precedent  to  the  vesting  of  the  property,  and,  if 
they  do  so,  their  intention  is  fulfilled."  Blackburn  on  Sales,  167.  Mr. 
Benjamin,  in  his  Treatise  on  Sales  of  Personal  Property,  adds  to  the 
two  formulated  rules  of  Lord  Blackburn  a  third  rule,  which  is  supported 
by  many  authorities,  to  wit:  (3)  "  Where  the  buyer  is  by  the  contract 
bound  to  do  anything  as  a  condition,  either  precedent  or  concurrent,  on 
which  the  passing  of  the  property  depends,  the  property  will  not  pass 
until  the  condition  be  fulfilled,  even  though  the  goods  may  have  been 
actually  delivered  into  the  possession  of  the  buyer."  Benjamin  on  Sales, 
2d  ed.,  p.  23(5  ;  3d  ed.,  §  320.  The  author  cites  for  this  proposition 
Bishop  v.  Shillito,  2  B.  &  Aid.  329,  note  (a)  ;  Brandt  v.  Bowlby,  2  Barn. 
&  Adolph.  932  ;  Barrow  v.  Coles  (Lord  Ellenborough),  3  Campbell, 
92  ;  Swain  v.  Shepherd  (Baron  Parke),  1  Mood.  &  Rob.  223  ;  Mires  v. 
Solebay.  2  Mod.  243.  In  the  last  case,  decided  in  the  time  of  Charles 
II.,  one  Alston  took  sheep  to  pasture  for  a  certain  time,  with  an  agree- 
ment that  if  at  the  end  of  that  time  he  should  pay  the  owner  a  certain 
sum  he  should  have  the  sheep.  Before  the  time  expired  the  owner  sold 
them  to  another  person  :  and  it  was  held,  that  the  sale  was  valid,  and 
that  the  agreement  to  sell  the  sheep  to  Alston,  if  he  would  pa}'  for  them 
at  a  certain  day,  did  not  amount  to  a  sale,  but  only  to  an  agreement. 
The  other  cases  were  instances  of  sales  of  goods  to  be  paid  for  in  cash 
or  securities  on  delivery.  It  was  held  that  the  sales  were  conditional 
only,  and  that  the  vendors  were  entitled  to  retake  the  goods,  even  after 
delivery,  if  the  condition  was  not  performed,  the  delivery  being  consid- 
ered as  conditional.  This  often  happens  in  cases  of  sales  by  auction, 
when  certain  terms  of  payment  are  prescribed,  with  a  condition  that  if 
they  are  not  complied  with  the  goods  may  be  re-sold  for  account  of  the 
buyer,  who  is  to  account  for  any  deficiency  between  the  second  sale  and 
the  first.  Such  was  the  case  of  Lamond  v.  Davall,  9  Q.  B.  1030,  and 
many  more  cases  could  be  cited.  In  Crawcour  v.  Robertson,  9  Ch.  Div. 
I!!».  certain  furniture  dealers  let  Robertson  have  a  lot  of  furniture  upon 
his  paying  £10  in  cash  and  signing  an  agreement  to  pay  £5  per  month 
(for  which  notes  were  given)  until  the  whole  price  of  the  furniture 
should  lie  paid,  and  when  all  the  instalments  were  paid,  and  not  before, 
the  furniture  was  to  lie  the  property  of  Robertson;  but  if  he  failed  to 
pay  any  of  the  instalments,  the  owners  were  authorized  to  take  posses- 
sion of  the  property,  and  all  prior  payments  actually  made  were  to  be 
forfeited.  The  Court  of  Appeal  held  that  the  property  did  not  pass  by 
this  agreement  and  could  not  be  taken  as  Robertson's  property  by  his 
trustee  under  a  liquidation  proceeding.    The  same  conclusion  was  reached 


SECT    III.]  HARKNESS    V.    RUSSELL.  75 

in  the  subsequent  case  of  Crawcour  v.  Salter,  18  Ch.  Div.  30.  In  these 
cases,  it  is  true,  support  of  the  transaction  was  sought  from  a  custom 
which  prevails  in  the  places  where  the  transactions  took  place,  of  hotel* 
keepers  holding  their  furniture  on  hire.  But  they  show  that  the  intent 
of  the  parties  will  be  recognized  and  sanctioned  where  it  is  not  contrary 
to  the  policy  of  the  law.  This  policy,  in  England,  is  declared  by  statute. 
li  has  long  been  a  provision  of  the  English  bankrupt  laws,  beginning 
wilh  21  dames  I.,  c.  1(J,  that  if  any  person  becoming  bankrupt  has  in 
Ins  ]>ossession,  order,  or  disposition,  by  consent  of  the  owner,  any  goods 
or  chattels  of  which  he  is  the  reputed  owner,  or  takes  upon  himseif  the 
sale,  alteration,  or  disposition  thereof  as  owner,  such  goods  are  to  be 
sold  -for  the  benefit  of  his  creditors.  This  law  has  had  the  effect  of 
preventing  or  defeating  conditional  sales  accompanied  by  voluntary  de- 
livery of  possession,  except  in  cases  like  those  before  referred  to  :  so 
that  very  few  decisions  are  to  be  found  in  the  English  books  directly  in 
point  on  the  question  tinder  consideration.  The  following  case  pre- 
sents a  fair  illustration  of  the^English  law  as  based  upon  the  statutes  of 
bankruptcy.  In  Horn  u.  Baker.  9  East,  215.  the  owner  of  a  term  in  a 
distillery,  and  of  the  apparatus  and  utensils  employed  therein,  demised 
the  same  to  .1  &  S.,  in  consideration  of  an  annuity  to  be  paid  to  the 
owner  and  his  wife  during  their  several  lives,  and  upon  their  death  the 
lessees  to  have  the  liberty  of  purchasing  the  residue  of  the  term  and 
the  apparatus  and  utensils  :  with  a  proviso  for  re-entry  if  the  annuity 
should  at  any  time  be  two  months  in  arrear.  The  annuity  having  be- 
come in  arrear  for  that  period,  instead  of  making  entry  for  condition 
broken,  the  wife  and  administrator  of  the  owner  brought  suit  to  recover 
the  arrears,  which  was  stopped  by  the  bankruptcy  of  J.  &  S.  The 
question  then  arose  whether  the  utensils  passed  to  the  assignees  of  J.  & 
S.  under  the  Bankrupt  Act,  as  being  in  their  possession,  order,  and  dis- 
position as  reputed  owners  ;  and  the  court  held  that  they  did  :  but  that 
if  there  had  been  a  usage  in  the  trade  of  letting  utensils  with  a  distillery, 
the  case  would  have  admitted  a  different  consideration,  since  such  a 
custom  might  have  rebutted  the  presumption  of  ownership  arising  from 
the  possession  and  apparent  order  and  disposition  of  the  goods.  This 
case  was  followed  in  Holroyd  v.  Gwynne,  2  Taunt.  176. 

This  presumption  of  property  in  a  bankrupt,  arising  from  his  pos- 
session and  reputed  ownership,  became  so  deeply  embedded  in  the  Eng- 
lish law.  that,  in  process  of  time  many  persons  in  the  profession,  not 
adverting  to  its  origin  in  the  statute  of  bankruptcy,  were  led  to  regard 
it  as  a  doctrine  of  the  common  law  ;  and  hence,  in  some  States  in  this 
country,  where  no  such  statute  exists,  the  principles  of  the  statute  have 
been  followed,  and  conditional  sales  of  the  kind  now  under  considera- 
tion have  been  condemned,  either  as  being  fraudulent  and  void  as 
against  creditors,  or  as  amounting,  in  effect,  to  absolute  sales  with  a 
reserved  lien  or  mortgage  to  secure  the  payment  of  the  purchase-money. 
This  view  is  based  on  the  notion  that  such  sales  are  not  allowed  bv  law, 
and  that  the  intent  of  the  parties,  however  honestlv  formed,  cannot 


76  HARKNESS   V.    RUSSELL.  [CHAP.  II. 

legally  be  earned  out.  The  insufficiency  of  this  argument  is  demon- 
strated by  the  fact  that  conditional  sales  are  admissible  in  several 
acknowledged  cases,  and,  therefore,  there  cannot  be  any  rule  of  law 
against  them  as  such.  They  may  sometimes  be  used  as  a  cover  for 
fraud,  and,  when  this  is  charged,  all  the  circumstances  of  the  case,  this 
included,  will  be  open  for  the  consideration  of  a  jury.  Where  no  fraud 
is  intended,  but  the  honest  purpose  of  the  parties  is  that  the  vendee 
shall  not  have  the  ownership  of  the  goods  until  he  has  paid  for  them, 
there  is  no  general  principle  of  law  to  prevent  their  purpose  from  having 
effect. 

In  this  country,  in  States  where  no  such  statute  as  the  English  act 
referred  to  is  in  force,  many  decisions  have  been  rendered  sustaining 
conditional  sales  accompanied  by  delivery  of  possession,  both  as  between 
the  parties  themselves  and  as  to  third  persons. 

In  Hussey  v.  Thornton,  4  Mass.  404,  decided  in  1808,  where  goods 
were  delivered  on  board  of  a  vessel  for  the  vendee  upon  an  agreement 
fur  a  sale,  subject  to  the  condition  that  the  goods  should  remain  the 
property  of  the  vendors  until  they  received  security  for  payment,  it  was 
held  (Chief  Justice  Parsons  delivering  the  opinion)  that  the  property  did 
not  pass,  and  that  the  goods  could  not  be  attached  by  the  creditors  of 
the  vendee.  Tins  case  was  followed  in  1822  by  that  of  Marston  v.  Bald- 
win, 17  Mass.  60G.  which  was  replevin  against  a  sheriff  for  taking  goods 
which  the  plaintiff  had  agreed  to  sell  to  one  Holt,  the  defendant  in  the 
attachment ,  but  by  the  agreement  the  property  was  not  to  vest  in  Holt 
until  he  should  pay  Si 00  (part  of  the  price),  which  condition  was  not 
performed,  though  the  goods  were  delivered.  Holt  had  paid  $75,  which 
the  plaintiff  did  not  tender  back.  The  court  held  that  it  was  sufficient 
for  the  plaintiff  to  be  ready  to  repay  the  money  when  he  should  be  re- 
quested, and  a  verdict  for  the  plaintiff  was  sustained.  In  Barrett  v. 
Pritchaid.  2  Pick.  512,  515-16,  the  court  said:  "  It  is  impossible  to 
raise  a  doubt  as  to  the  intention  of  the  parties  in  this  case,  for  it  is  ex- 
pressly stipulated  that  l  the  wool  before  manufactured,  after  being  manu- 
factured, or  in  any  stage  of  manufacturing,  shall  be  the  property  of  the 
plaintiff  until  the  price  be  paid.'  It  is  difficult  to  imagine  any  good 
reason  why  this  agreement  should  not  bind  the  parties.  .  .  .  The  case 
from  Taunton,  Holroyd  v.  Gwynne,  was  a  case  of  a  conditional  sale  ; 
but  the  condition  was  void  as  against  the  policy  of  the  statute  21  Jac. 
I.,  ch.  19,  §  11.  It  would  not  have  changed  the  decision  in  that  case  if 
there  had  been  no  sale  ;  for,  by  that  statute,  if  the  true  owner  of  goods 
and  chattels  suffers  another  to  exercise  such  control  and  management 
over  them  as  to  give  him  the  appearance  of  being  the  real  owner,  and 
he  becomes  bankrupt,  the  goods  and  chattels  shall  be  treated  as  his 
property,  and  shall  be  assigned  by  the  commissioners  for  the  benefit  of 
his  creditors.  The  case  of  Horn  v.  Baker,  9  East,  215,  also  turned  on 
the  same  point,  and  nothing  in  either  of  these  cases  has  any  bearing  on 
the  present  question."  In  Coggill  v.  Hartford  &  New  Haven  Railroad, 
3  Gray,  545-547,  the  rights  of  a  bona  fide  purchaser  from  one  in  pos- 


SECT.  III.]  HARKNESS   V.    RUSSELL.  77 

session  under  a  conditional  sale  of  goods  were  specifically  discussed,  and 
the  court  held,  in  an  able  opinion  delivered  by  Mr.  Justice  Bigelow,  that 
a  sale  and  delivery  of  goods  on  condition  that  the  title  shall  not  vest  in 
the  vendee  until  payment  of  the  price,  passes  no  title  until  the  condition 
is  performed,  and  the  vendor,  if  guilty  of  no  laches,  may  reclaim  the 
property,  even  from  one  who  has  purchased  from  his  vendee  in  good 
faith,  and  without  notice.  The  learned  justice  commenced  his  opinion 
in  the  following  terms  :  "  It  has  long  been  the  settled  rule  of  law  in  this 
commonwealth  that  a  sale  and  delivery  of  goods  on  condition  that  the 
property  is  not  to  vest  until  the  purchase-money  is  paid  or  secured,  does 
not  pass  the  title  to  the  vendee,  and  that  the  vendor,  in  case  the  condi- 
tion is  not  fulfilled,  has  a  right  to  repossess  himself  of  the  goods,  both 
against  the  vendee  and  against  his  creditors  claiming  to  hold  them  under 
attachments."  He  then  addresses  himself  to  a  consideration  of  the 
.rights  of  a  bona  fide  purchaser  from  the  vendee,  purchasing  without 
notice  of  the  condition  on  which  the  latter  holds  the  goods  in  his  pos- 
session ;  and  he  concludes  that  they  are  no  greater  than  those  of  a  cred- 
itor. He  says  :  kt  All  the  cases  turn  on  the  principle  that  the  compliance 
with  the  conditions  of  sale  and  delivery  is,  by  the  terms  of  the  contract, 
precedent  to  the  transfer  of  the  property  from  the  vendor  to  the  vendee. 
The  vendee  in  such  cases  acquires  no  property  in  the  goods.  He  is  only 
a  bailee  for  a  specific  purpose.  The  delivery  which  in  ordinary  cases 
passes  the  title  to  the  vendee  must  take  effect  according  to  the  aoree- 
ment  of  the  parties,  and  can  operate  to  vest  the  property  only  when  the 
contingency  contemplated  by  the  contract  arises.  The  vendee,  there- 
fore, in  such  cases,  having  no  title  to  the  property,  can  pass  none  to 
others.  He  has  only  a  bare  right  of  possession  ;  and  those  who  claim 
under  him,  either  as  creditors  or  purchasers,  can  acquire  no  higher  or 
better  title.  Such  is  the  necessary  result  of  carrying  into  effect  the  in- 
tention of  the  parties  to  a  conditional  sale  and  delivery.  Any  other 
rule  would  be  equivalent  to  the  denial  of  the  validity  of  such  contracts. 
But  they  certainly  violate  no  rule  of  law,  nor  are  they  contrary  to  sound 
policy." 

This  case  was  followed  in  Sargent  v.  Metcalf,  5  Gray,  306  ;  Deshon 
v.  Bigelow,  8  Gray,  159  ;  Whitney  v.  Eaton,  15  Gray,  225  ;  Hirschorn 
v.  Canney,  98  Mass.  149  ;  and  Chase  v.  Ingalls,  122  Mass.  381  ;  and  is 
believed  to  express  the  settled  law  of  Massachusetts. 

The  same  doctrine  prevails  in  Connecticut,  and  was  sustained  in  an 
able  and  learned  opinion  of  Chief  Justice  Williams,  in  the  case  of 
Forbes  v.  Marsh.  15  Conn.  384,  decided  in  1843,  in  which  the  principal 
authorities  are  reviewed.  The  decision  in  this  case  was  followed  in  the 
subsequent  case  of  Hart  v.  Carpenter,  24  Conn.  427,  where  the  question 
arose  upon  the  claim  of  a  bona  fide  purchaser. 

In  New  York  the  law  is  the  same,  at  least,  so  far  as  relates  to  the 
vendee  in  a  conditional  sale,  and  to  his  creditors  ;  though  there  has  been 
some  diversity  of  opinion  in  its  application  to  bona  fide  purchasers  from 
such  vendee.     As  early  as  1822,  in  the  case  of  Haggerty  v.  Palmer,  6 


78  HAEKXESS    V.    RUSSELL.  [CHAP.  II. 

Johns.  Ch.  437,  where  an  auctioneer  had  delivered  to  the  purchaser 
goods  sold  at  auction,  it  being  one  of  the  conditions  of  sale  that  en- 
dorsed notes  should  be  given  in  payment,  which  the  purchaser  failed  to 
give,  Chancellor  Kent  held  that  it  was  a  conditional  sale  and  delivery, 
and  gave  no  title  which  the  vendee  could  transfer  to  an  assignee  for  the 
benefit  of  creditors  ;  and  he  said  that  the  cases  under  the  English  Bank- 
rupt Act  did  not  apply  here.  The  Chancellor  remarked,  however,  that 
"  if  the  goods  had  been  fairly  sold  b}T  P.  (the  conditional  vendee),  or  if 
the  proceeds  had  been  actually  appropriated  by  the  assignees,  before 
notice  of  this  suit,  and  of  the  injunction,  the  remedy  would  have  been 
gone."  In  Strong  v.  Taylor,  2  Hill,  326,  Nelson,  C.  J.,  pronouncing 
the  opinion,  it  was  held  to  be  a  conditional  sale  where  the  agreement  was  to 
sell  a  canal-boat  for  a  certain  sum  to  be  paid  in  freighting  flour  and  wheat, 
as  directed  by  the  vendor,  he  to  have  half  the  freight  until  paid  in  full 
with  interest.  Before  the  mone\'  was  all  paid  the  boat  was  seized  under 
an  execution  against  the  vendee  ;  and  in  a  suit  by  the  vendor  against  the 
sheriff,  a  verdict  was  found  for  the  plaintiff,  under  the  instruction  of  the 
court,  and  was  sustained  in  banc,  upon  the  authority  of  the  Massachu- 
setts case  of  Barrett  v.  Pritchard,  2  Pick.  512.  In  Herring  v.  Hoppock, 
15  N.  Y.  409,  411,  414,  the  same  doctrine  was  followed.  In  that  case 
there  was  an  agreement  in  writing  for  the  sale  of  an  iron  safe,  which 
was  delivered  to  the  vendee  and  a  note  at  six  months  given  therefor ; 
but  it  \v;is  expressly  understood  that  no  title  was  to  pass  until  the  note 
was  paid  ;  and  if  not  paid,  Herring,  the  vendor,  was  authorized  to  re- 
take the  safe  and  collect  all  reasonable  charges  for  its  use.  The  sheriff 
levied  on  the  safe  as  the  property  of  the  vendee,  with  notice  of  the 
plaintiff's  claim.  The  Court  of  Appeals  held  that  the  title  did  not  pass 
out  of  Herring.  Paige,  J.,  said  :  "  Whenever  there  is  a  condition  pre- 
cedent attached  to  a  contract  of  sale,  which  is  not  waived  by  an  absolute 
and  unconditional  delivery,  no  title  passes  to  the  vendee  until  he  per- 
forms the  condition,  or  the  seller  waives  it."  Comstock,  J.,  said  that  if 
the  question  were  new,  it  might  be  more  in  accordance  with  the  analogies 
of  the  law  to  regard  the  writing  given  on  the  sale  as  a  mere  security  for 
the  debt,  in  the  nature  of  a  personal  mortgage  ;  but  he  considered  the 
law  as  having  been  settled  by  the  previous  cases,  and  the  court  unani- 
mously concurred  in  the  decision. 

In  the  cases  of  Smyth  v.  Lynes,  1  Sold.  (5  N.  Y.)  41,  and  Wait  v. 
Green,  36  Barb.  585  ;  s.  c.  on  appeal,  36  N.  Y.  556,  it  was  held  that  a 
bona  fide  purchaser,  without  notice,  from  a  vendee  who  is  in  possession 
under  a  conditional  sale,  will  be  protected  as  against  the  original  ven- 
dor. These  cases  were  reviewed,  and,  we  think,  substantially  over- 
ruled, in  the  subsequent  case  of  Ballard  v.  Burgett,  40  N.  Y.  314,  in 
which  separate  elaborate  opinions  were  delivered  by  Judges  Grover  ami 
Lott.  This  decision  was  concurred  in  by  Chief  Judge  Hunt  and  Judges 
Woodruff,  Mason,  and  Daniels;  Judges  James  and  Murray  dissenting. 
In  that  case  Ballard  agreed  to  sell  to  one  France  a  yoke  of  oxen  lor  a 
price  agreed  on,  but  the  contract  had  the  condition  "  that  the  oxen  were 


SECT.  III.]  HAKKNESS   V.    RUSSELL.  79 

to  remain  the  property  of  Ballard  until  they  should  be  paid  for."  The 
oxen  were  delivered  to  France,  and  he  subsequently  sold  them  to  the 
defendant  Burgett,  who  purchased  and  received  them  without  notice  that 
the  plaintiff  had  any  claim  to  them.  The  court  sustained  Ballard's 
claim  ;  and  subsequent  cases  in  New  York  are  in  harmony  with  this 
decision.     See  Cole  v.  Mann,  62  N.  Y.  1  ;  Bean  y.  Edge,  84  N.  Y.  .010. 

We  do  not  perceive  that  the  case  of  Dows  v.  Kidder,  84  N.  Y.  121, 
is  adverse  to  the  ruling  in  Ballard  v.  Burgett.  There,  although  the 
plaintiffs  stipulated  that  the  title  to  the  corn  should  not  pass  until  pay- 
ment of  the  price  (which  was  to  be  cash,  the  same  day),  yet  they  en- 
dorsed and  delivered  to  the  purchaser  the  evidence  of  title,  namely,  the 
weigher's  return,  to  enable  him  to  take  out  the  bill  of  lading  in  his  own 
name,  and  use  it  in  raising  funds  to  pay  the  plaintiff.  The  purchaser 
misappropriated  the  funds,  and  did  not  pay  for  the  corn.  Here  the  in- 
tent of  both  parties  was  that  the  purchaser  might  dispose  of  the  corn, 
and  he  was  merely  the  trustee  of  the  plaintiff,  invested  by  him  with  the 
legal  title.  Of  course  the  innocent  party  who  purchased  the  corn  from 
the  first  purchaser  was  not  bound  by  the  equities  between  him  and  the 
plaintiff. 

The  later  case  of  Parker  y.  Baxter,  86  N.  Y.  586,  was  precisely  sim- 
ilar to  Dows  v.  Kidder ;  and  the  same  principle  was  involved  in  Farwell 
y.  Importers'  and  Traders'  Bank,  (J0  N.  Y.  488,  where  the  plaintiff  de- 
livered his  own  note  to  a  broker  to  get  it  discounted,  and  the  latter 
pledged  it  as  collateral  for  a  loan  made  to  himself:  the  legal  title  passed, 
and  although,  as  between  the  plaintiff  and  the  broker,  the  former  was 
the  owner  of  the  note  and  its  proceeds,  yet  that  was  an  equity  which 
was  not  binding  on  the  innocent  holder. 

The  decisions  in  Maine,  New  Hampshire,  and  Vermont  are  under- 
stood to  be  substantially  to  the  same  effect  as  those  of  Massachusetts 
and  New  York  ;  though  by  recent  statutes  in  Maine  and  Vermont,  as 
also  in  Iowa,  where  the  same  ruling  prevailed,  it  is  declared  in  effect 
that  no  agreements  that  personal  property  bargained  and  delivered  to 
another  shall  remain  the  property  of  the  vendor,  shall  be  valid  against 
third  persons  without  notice.  George  v.  Stubbs.  26  Maine,  243  ;  Sawyer 
v.  Fisher,  32  Maine,  28  ;  Brown  v.  Haines,  52  Maine,  578  ;  Boynton  v. 
Libby,  62  Maine,  253  ;  Rogers  v.  Whitehouse,  71  Maine,  222  ;  Sargent 
v.  Gile,  8  N.  H.  325  ;  McFarland  u.  Farmer,  42  N.  H.  386  ,  King  v. 
Bates,  57  N.  H.  446  ;  Hefflin  v.  Bell,  30  Vt.  134  ;  Armington  v.  Hous- 
ton, 38  Vt.  448  ;  Fales  y.  Roberts,  38  Vt.  503  ;  Duncans  v.  Stone,  45 
Vt  118;  Moseley  y.  Shattuck,  43  Iowa,  540;  Thorpe  v.  Fowler,  57 
Iowa,  541. 

The  same  view  of  the  law  has  been  taken  in  several  other  States.  In 
New  Jersey,  in  the  case  of  Cole  v.  Berry,  13  Vroom  (42  N.  J.  Law), 
308,  it  was  held  that  a  contract  for  the  sale  of  a  sewing-machine  to  be 
delivered  and  paid  for  by  instalments,  and  to  remain  the  property  of  the 
vendor  until  paid  for,  was  a  conditional  sale,  and  gave  the  vendee  no 
title  until  the  condition  was  performed  ;  and  the  cases  are  very  fully 
discussed  and  distinguished. 


SO  HAEKNESS    V.    RUSSELL.  [CHAr.  II. 

In  Pennsylvania  the  law  is  understood  to  be  somewhat  different.  It 
is  thus  summarized  by  Judge  Depue,  in  the  opinion  delivered  in  Cole  v. 
Berry,  where  he  says  :  "In  Pennsylvania  a  distinction  is  taken  between 
delivery  under  a  bailment,  with  an  option  in  the  bailee  to  purchase  at  a 
named  price,  and  a  delivery  under  a  contract  of  sale  containing  a  reser- 
vation of  title  in  the  vendor  until  the  contract-price  be  paid  ;  it  being 
held  that,  in  the  former  instance,  property  does  not  pass,  as  in  favor  of 
creditors  and  purchasers  of  the  bailee,  but  that,  in  the  latter  instance, 
delivery  to  the  vendee  subjects  the  property  to  execution  at  the  suit  of 
his  creditors,  and  makes  it  transferable  to  bona  fide  purchasers.  Cham- 
berlain v.  Smith,  44  Penn.  St.  431;  Rose  v.  Story,  I  Penn.  St.  190; 
Marsh  v.  Mathiot,  14  S.  &  R.  214  ,  Haak  v.  Linderman,  64  Penn.  St. 
499."  But,  as  the  learned  judge  adds,  "  This  distinction  is  discredited 
by  the  great  weight  of  authority,  which  puts  possession  under  a  con- 
ditional contract  of  sale  and  possession  under  a  bailment  on  the  same 
footing  — liable  to  be  assailed  by  creditors  and  purchasers  for  actual 
fraud,  but  not  fraudulent  per  se." 

In  this  connection  see  the  case  of  Copland  v.  Bosquet,  4  Wash.  C.  C. 
588,  where  Mr.  Justice  Washington  and  Judge  Peters  (the  former  deliv- 
ering the  opinion  of  the  court)  sustained  a  conditional  sale  and  delivery 
against  a  purchaser  from  the  vendee,  who  claimed  to  be  a  bona  fide 
purchaser  without  notice. 

In  Ohio  the  validity  of  conditional  sales  accompanied  by  delivery  of 
possession  is  fully  sustained.  The  latest  reported  case  brought  to  our 
attention  is  that  of  Call  v.  Seymour,  40  Ohio  St.  670,  which  arose  upon 
a  written  contract  contained  in  several  promissory  notes  given  for  in- 
stalments of  the  purchase-money  of  a  machine,  and  resembling  very 
much  the  contract  in  the  case  now  under  consideration.  Following  the 
note,  and  as  a  part  of  the  same  document,  is  this  condition  :  ';  The  ex- 
press conditions  of  the  sale  and  purchase  of  the  Separator  and  Horse- 
Power  for  which  this  note  is  given,  is  such,  that  the  title,  ownership,  or 
possession  does  not  pass  from  the  said  Seymour,  Sabin  &  Co.  until  this 
note,  with  interest,  is  paid  in  full.  The  said  Seymour,  Sabm  &  Co. 
have  full  power  to  declare  this  note  due  and  take  possession  of  said 
Separator  and  Horse-Power  at  any  time  they  may  deem  this  note  inse- 
cure, even  before  the  maturity  of  the  note,  and  to  sell  the  said  machine 
at  public  or  private  sale,  the  proceeds  to  be  applied  upon  the  unpaid 
balance  of  the  purchase-price."  The  machine  was  seized  under  an 
attachment  issued  against  the  vendee,  and  the  action  was  brought  by  the 
vendor  against  the  constable  who  served  the  attachment.  The  case  was 
fully  argued,  and  the  authorities  pro  and  con  duly  considered  by  the 
court,  which  sustained  the  condition  expressed  in  the  contract  and 
affirmed  the  judgment  for  the  plaintiff.  See  also  Sanders  v.  Keber,  28 
Ohio  St.  630. 

The  same  law  prevails  in  Indiana:  Shireman  v.  Jackson,  14  Ind.  459  ; 
Dunbar  v.  Rawles,  28  Ind.  225  ;  Bradshaw  v.  Warner,  54  Ind.  58  ; 
Hodson  v.  Warner,  GO  Ind.  214  ;  McGirr  v.  Sells,  60  Ind.  249. 


SECT.  III.]  HARKNESS   V.   RUSSELL.  81 

The  same  in  Michigan:  Whitney  v.  McConnell,  29  Mich.  12  ;  Smith 
v.  Lozo,  42  Mich.  6;  Marquette  Manufacturing  Co.  v.  Jefferej',  49  Mich. 
283. 

The  same  in  Missouri :  Ridgeway  v.  Kenned}',  52  Missouri,  24 ; 
Wangler  v.  Franklin,  70  Missouri,  G50  ;  Sumner  v.  Cottey,  71  Missouri, 
121. 

The  same  in  Alabama:  Fairbanks  v.  Eureka  Co.,  67  Ala.  109  ;  Sum- 
ner v.  Woods,  67  Ala.  139. 

The  same  in  several  other  States.  For  a  ver}r  elaborate  collection  of 
cases  on  the  subject,  see  Mr.  Bennett's  note  to  Benjamin  on  Sales,  4th 
ed.,  §  320,  pp.  329-336  ;  and  Mr.  Freeman's  note  to  Kanaga  v.  Taylor, 
7  Ohio  St.  134,  in  70  Am.  Dec.  62.  It  is  unnecessaiy  to  quote  further 
from  the  decisions  ;  the  quotations  already  made  show  the  grounds  and 
reasons  of  the  rule. 

The  law  has  been  held  differently  in  Illinois,  and  very  nearly  in  con- 
formity with  the  English  decisions  under  the  operation  of  the  bankrupt 
law.  The  doctrine  of  the  Supreme  Court  of  that  State  is,  that  if  a  per- 
son agrees  to  sell  to  another  a  chattel  on  condition  that  the  price  shall 
be  paid  within  a  certain  time,  retaining  the  title  in  himself  in  the  mean- 
time, and  delivers  the  chattel  to  the  vendee  so  as  to  clothe  him  with  the 
apparent  ownership,  a  bona  fide  purchaser  or  an  execution  creditor  of 
the  latter  is  entitled  to  protection  as  against  the  claim  of  the  original 
vendor.  Brunclage  v.  Camp,  21  111.  330  ;  McCormick  v.  Hadden,  37111. 
370;  Murch  v.  Wright,  46  111.  487;  Mich.  Central  Railroads.  Phillips, 
60  111.  190  ;  Lucas  v.  Campbell,  88  111.  447  ;  Van  Duzor  v.  Allen,  90  111. 
499.  Perhaps  the  statute  of  Illinois  on  the  subject  of  chattel  mortgages 
has  influenced  some  of  these  decisions.  This  statute  declares  that  "  no 
mortgage,  trust  deed,  or  other  conveyance  of  personal  property,  having 
the  effect  of  a  mortgage  or  lien  upon  such  property,  is  valid  as  against 
the  rights  and  interests  of  any  third  person,  unless  the  possession  thereof 
be  delivered  to  and  remain  with  the  grantee,  or  the  instrument  provide 
that  the  possession  of  the  property  may  remain  with  the  grantor,  and 
the  instrument  be  acknowledged  and  recorded."  It  has  been  supposed 
that  this  statute  indicates  a  rule  of  public  policy  condemning  secret  liens 
and  reservations  of  title  on  the  part  of  vendors,  and  making  void  all 
agreements  for  such  liens  or  reservations  unless  registered  in  the  manner 
required  for  chattel  mortgages.  At  all  events,  the  doctrine  above  re- 
ferred to  has  become  a  rule  of  property  in  Illinois,  and  we  have  felt 
bound  to  observe  it  as  such.  In  the  case  of  Hervey  v.  Rhode  Island 
Locomotive  Works,  93  U.  S.  664,  671,  where  a  Rhode  Island  company 
leased  to  certain  Illinois  railroad  contractors  a  locomotive  engine  and 
tender  at  a  certain  rent,  payable  at  stated  times  during  the  ensuing  year, 
with  an  agreement  that  if  the  rent  was  duly  paid  the  engine  and  tender 
should  become  the  property  of  the  lessees,  and  possession  was  delivered 
to  them,  this  court,  being  satisfied  that  the  transaction  was  a  conditional 
sale,  and  that,  b}'  the  law  of  Illinois,  the  reservation  of  title  by  the 
lessors  was  void  as  against  third  persons,  unless  the  agreement  was 

6 


82  HARKNESS   V.    KUSSELL.  [CHAP.  II. 

recorded  (which  it  was  not  in  proper  time),  decided  that  a  levy  and  sale 
of  the  property  in  Illinois,  under  a  judgment  against  the  lessees,  were 
valid,  and  that  the  Locomotive  Works  could  not  reclaim  it.  Mr.  Justice 
Davis,  delivering  the  opinion  of  the  court,  said:  "It  was  decided  by 
this  court  in  Green  v.  Van  Buskirk,  5  Wall.  307,  and  7  Wall.  139,  that 
the  liability  of  property  to  be  sold  under  legal  process,  issuing  from  the 
courts  of  the  State  where  it  is  situated,  must  be  determined  b}r  the  law 
there  rather  than  that  of  the  jurisdiction  where  the  owner  lives.  These 
decisions  rest  on  the  ground  that  every  State  has  the  right  to  regulate 
the  transfer  of  property  within  its  limits,  and  that  whoever  sends  prop- 
erty to  it  impliedly  submits  to  the  regulations  concerning  its  transfer  in 
force  there,  although  a  different  rule  of  transfer  prevails  in  the  jurisdic- 
tion where  he  resides.  .  .  .  The  polic}'  of  the  law  in  Illinois  will  not 
permit  the  owner  of  personal  property  to  sell  it,  either  absolutely  or 
conditionally,  and  still  continue  in  possession  of  it.  Possession  is  one 
of  the  strongest  evidences  of  title  to  this  class  of  property,  and  cannot 
be  rightfully  separated  from  the  title,  except  in  the  manner  pointed  out 
by  the  statute.  The  courts  of  Illinois  say  that  to  suffer,  without  notice 
to  the  world,  the  real  ownership  to  be  in  one  person,  and  the  ostensible 
ownership  in  another,  gives  a  false  credit  to  the  latter,  and,  in  this  way, 
works  an  injury  to  third  persons.  Accordingly,  the  actual  owner  of 
personal  property  creating  an  interest  in  another  to  whom  it  is  delivered, 
if  desirous  of  preserving  a  lien  on  it,  must  comply  with  the  provisions 
of  the  Chattel  Mortgage  Act.  Rev.  Stat.  111.  1874,  711,  712."  The 
Illinois  cases  are  then  referred  to  by  the  learned  justice  to  show 
the  precise  condition  of  the  law  of  that  State  on  the  subject  under 
consideration. 

The  case  of  Hervey  v.  Rhode  Island  Locomotive  Works  is  relied  on 
by  the  appellants  in  the  present  case  as  a  decision  in  their  favor ;  but 
this  is  not  a  correct  conclusion ;  for  it  is  apparent  that  the  only  points 
decided  in  that  case  were,  first,  that  it  was  to  be  governed  by  the  law 
of  Illinois,  the  place  where  the  property  was  situated ;  secondly,  that  by 
the  law  of  Illinois  the  agreement  for  continuing  the  title  of  the  property 
in  the  vendors,  after  its  delivery  to  the  vendees,  whereby  the  latter  be- 
came the  ostensible  owner,  was  void  as  against  third  persons.  This  is 
all  that  was  decided,  and  it  does  not  aid  the  appellants,  unless  they  can 
show  that  the  law  as  held  in  Illinois,  contrary  to  the  great  weight  of 
authority  in  England  and  this  country,  is  that  which  should  govern  the 
present  case.  And  this  we  think  they  cannot  do.  We  do  not  mean  to 
say  that  the  Illinois  doctrine  is  not  supported  by  some  decisions  in  other 
States.  There  are  such  decisions  ;  but  they  are  few  in  number  compared 
with  those  in  which  it  is  held  that  conditional  sales  are  valid  and  lawful, 
as  well  against  third  persons  as  against  the  parties  to  the  contract. 

The  appellants,  however,  rely  with  much  confidence  on  the  decision 
of  this  court  in  Heryford  v.  Davis,  102  U.  S.  235,  243,  a  case  coming 
from  Missouri,  where  the  law  allows  and  sustains  conditional  sales. 
But  we  do  not  think  that  this  case,  any  more  than  that  of  Hervey  v. 


SECT.  III.]  HARKNESS   V.   RUSSELL.  83 

Rhode  Island  Locomotive  Works,  will  be  found  to  support  their  views. 
The  whole  question  in  Heryford  v.  Davis  was  as  to  the  construction  of 
the  contract.  This  was  in  the  form  of  a  lease  ;  but  it  contained  pro- 
visions so  irreconcilable  with  the  idea  of  its  being  really  a  lease,  and  so 
demonstrable  that  it  was  an  absolute  sale  with  a  reservation  of  a  mort- 
gage lien,  that  the  latter  interpretation  was  given  to  it  by  the  court. 
This  interpretation  rendered  it  obnoxious  to  the  statute  of  Missouri  re- 
quiring mortgages  of  personal  property  to  be  recorded  in  order  to  be 
valid  as  against  third  persons.  It  was  conceded  by  the  court,  in  the 
opinion  delivered  by  Mr.  Justice  Strong,  that  if  the  agreement  had 
really  amounted  to  a  lease,  with  an  agreement  for  a  conditional  sale,  the 
claim  of  the  vendors  would  have  been  valid.  The  first  two  or  three 
sentences  of  the  opinion  furnish  a  key  to  the  whole  effect  of  the  decision. 
Mr.  Justice  Strong  says:  "  The  correct  determination  of  this  case  de- 
pends altogether  upon  the  construction  that  must  be  given  to  the  con- 
tract between  the  Jackson  &  Sharp  company  and  the  railroad  company, 
against  which  the  defendants  below  recovered  their  judgment  and  ob- 
tained their  execution.  If  that  contract  was  a  mere  lease  of  the  cars  to 
the  railroad  company,  or  if  it  was  only  a  conditional  sale,  which  did  not 
pass  the  ownership  until  the  condition  should  be  performed,  the  prop- 
erty was  not  subject  to  lev}'  and  sale  under  execution  at  the  suit  of  the 
defendant  against  the  company.  But  if,  on  the  other  hand,  the  title 
passed  by  the  contract,  and  what  was  reserved  by  the  Jackson  &  Sharp 
company  was  a  lien  or  security  for  the  payment  of  the  price,  or  what  is 
called,  sometimes,  a  mortgage  back  to  the  vendors,  the  cars  were  sub- 
ject to  lev}'  and  sale  as  the  property  of  the  railroad  company." 

The  whole  residue  of  the  opinion  is  occupied  with  the  discussion  of 
the  true  construction  of  the  contract,  and,  as  we  have  stated,  the  con- 
clusion was  reached  that  it  was  not  really  a  lease,  nor  a  conditional  sale, 
but  an  absolute  sale,  with  the  reservation  of  a  lien  or  security  for  the 
payment  of  the  price.  This  ended  the  case  ;  for,  thus  interpreted,  the 
instrument  inured  as  a  mortgage  in  favor  of  the  vendors,  and  ought  to 
have  been  recorded  in  order  to  protect  them  against  third  persons. 

But  whatever  the  law  may  be  with  regard  to  a  bona  fide  purchaser 
from  the  vendee  in  a  conditional  sale,  there  is  a  circumstance  in  the 
present  case  which  makes  it  clear  of  all  difficult}'.  The  appellant  in  the 
present  case  was  not  a  bona  fide  purchaser  without  notice.  The  court 
below  find  that  at  the  time  of  and  prior  to  the  sale  he  knew  the  purchase- 
price  of  the  property  had  not  been  paid,  and  that  Russell  &  Co.  claimed 
title  thereto  until  such  payment  was  made.  Under  such  circumstances, 
it  is  almost  the  unanimous  opinion  of  all  the  courts  that  he  cannot  hold 
the  property  as  against  the  true  owners.  But  as  the  rulings  of  this  court 
have  been,  as  we  think,  somewhat  misunderstood,  we  have  thought  it 
proper  to  examine  the  subject  with  some  care,  and  to  state  what  we  re- 
gard as  the  general  rule  of  law,  where  it  is  not  affected  by  local  statutes 
or  local  decisions  to  the  contrary. 

It  is  only  necessary  to  add  that  there  is  nothing  either  in  the  statute 


84  SPOONER   V.    CUMMINGS.  [CHAP.  II. 

or  adjudged  law  of  Idaho  to  prevent,  in  this  case,  the  operation  of  the 
general  rule,  which  we  consider  to  be  established  by  overwhelming 
authority,  namely,  that,  in  the  absence  of  fraud,  an  agreement  for  a  con- 
ditional sale  is  good  and  valid,  as  well  against  third  persons  as  against 
the  parties  to  the  transaction  ;  and  the  further  rule,  that  a  bailee  of  per- 
sonal property  cannot  convey  the  title,  or  subject  it  to  execution  for  his 
own  debts,  until  the  condition  on  which  the  agreement  to  sell  was  made 
has  been  performed. 
The  judgment  of  the  Supreme  Court  of  the  Territory  of  Utah  is 

Affirmed. 


SPOONER   v.   CUMMINGS. 

Supreme  Judicial  Court  of  Massachusetts,  January  15,  16- 
March  11,  1890. 

[Reported  in  151  Afassachtisetts,  31.3.] 

Two  actions  of  replevin,  of  a  horse  and  of  a  mare  respectively.  The 
answer  in  each  case  contained  a  general  denial,  and  that  in  the  second 
case  also  set  up  fraud  and  laches  on  the  part  of  the  plaintiff,  and  an 
authorit}'  from  him  to  sell  the  mare  to  the  defendant.  Trial  in  the  Su- 
perior Court,  before  Aid  rich,  J.,  who  allowed  a  bill  of  exceptions  in 
each  case. 

In  the  first  case  there  was  evidence  that  on  May  26,  1888,  the  plain- 
tiff, who  then  owned  the  horse  in  question,  sold  it  to  one  Pope,  who 
bought  and  received  it  upon  an  agreement  in  writing  signed  by  him, 
which  recited  that  the  horse  was  to  be  and  remain  the  entire  and  abso- 
lute property  of  the  plaintiff  until  paid  for  in  full  by  Pope ;  that  the 
plaintiff  was  a  dealer  in  horses,  and  had  sold  horses  to  Pope  for  several 
3'ears  ;  and  that  Pope,  before  paying  the  plaintiff  for  the  horse  in  ques- 
tion, resold  it  to  the  defendant,  on  June  2,  1888,  and  received  payment 
for  it  from  him. 

The  plaintiff  contended,  and  asked  the  judge  to  rule,  that  the  defend- 
ant, under  his  answer,  could  only  be  permitted  to  show  that  the  condi- 
tional agreement  was  not  made,  or  that  the  horse  had  been  paid  for  by 
Pope.  The  judge  declined  so  to  rule,  but  ruled  that  the  defendant  might 
be  permitted  to  show  that  the  plaintiff  gave  to  Pope  authority,  express 
or  implied,  by  the  course  of  dealing  between  them,  to  sell  the  horse 
before  payment;  and  the  plaintiff  excepted. 

The  defendant  thereupon  introduced  evidence  which  showed  that  for 
a  long  period  the  plaintiff  and  Pope  had  engaged  in  similar  transactions, 
and  that,  according  to  the  course  of  dealing  between  them,  Pope  pur- 
chased horses  from  the  plaintiff,  and  gave  him  similar  conditional  agree- 
ments in  writing;  and  that  the  plaintiff  would  urge  Pope  to  sell  such 
horses,  and  the  latter,  before  paying  for  them,  would  resell  thorn  and 


SECT.  III.]  SPOONER  V.   CUMMINGS.  85 

send  money  to  the  plaintiff,  which  the  latter  would  apply  as  he  saw  fit 
on  any  of  the  agreements.  One  Trull  was  permitted  to  testify  against 
the  plaintiff's  objection,  that  about  the  middle  of  June,  1888,  the  plain- 
till'  told  him  to  tell  Tope  that  he  had  a  carload  of  horses  coming,  and  to 
sell  as  man}-  horses  as  he  could. 

The  judge  gave  an  instruction  among  others  to  the  jury,  which  per- 
mitted them  to  find,  from  the  course  of  dealing  between  the  parties, 
that  the  plaintiff'  had  given  Pope  implied  authority  to  sell  the  horse  in 
question ;  and  further  instructed  them,  that,  if  the  plaintiff,  notwith- 
standing the  conditional  agreement  between  the  parties,  consented  that 
Pope  might  sell  the  horse  to  the  defendant,  trusting  that  Pope  would 
send  him  the  money  in  payment  for  it,  he  could  not  set  up  the  condi- 
tional agreement  with  Pope  as  against  the  defendant. 

The  jury  returned  a  verdict  for  the  defendant;  and  the  plaintiff  al- 
leged exceptions. 

F.  A.  Gaskill  and  C.  W.  Wood,  for  the  plaintiff. 

J.  W.  McDonald,  for  the  defendant. 

Knowlton,  J.  Under  the  answer  of  the  defendant,  any  evidence 
was  competent  which  tended  to  contradict  the  contention  of  the  plain- 
tiff, that  the  title  to  the  horse  and  the  right  of  possession  were  in  him. 
Verry  v.  Small,  16  Gray,  121,  122;  Whitcher  v.  Shattuck,  3  Allen,  319. 

The  defendant  was  not  a  party  to  the  written  contract  between  the 
plaintiff  and  Pope,  but  claimed  outside  of  it,  and  in  support  of  his  own 
title  he  might  show  by  parol  what  was  the  real  arrangement  between 
them,  even  if  it  differed  from  that  contained  in  the  writing.  Kellogg  v. 
Tompson,  142  Mass.  76.  If  the  plaintiff  expressly  or  impliedly  author- 
ized the  sale  by  Pope  to  him,  he,  having  bought  in  good  faith  from  the 
apparent  owner,  acquired  a  good  title.  It  is  immaterial  whether  his 
right  depends  upon  an  actual  authority  to  make  the  sale,  or  upon  facts 
which  estop  the  plaintiff  from  denying  the  validity  of  the  sale.  Burbank 
v.  Crooker,  7  Gray.  158,  159  ;  Raskins  v.  Warren.  115  Mass.  514,  538. 
Fall  River  National  Bank  v.  Bufflnton,  97  Mass.  498  ;  Fowler  v.  Parsons, 
143  Mass.  401  ;  Tracy  '••  Lincoln,  145  Mass.  357. 

The  testimony  as  to  the  course  of  dealing  between  the  plaintiff  and 
Pope,  involving  a  long  series  of  transactions,  all  of  the  same  kind  and 
conducted  generally  in  the  same  way,  was  competent,  as  tending  to  show 
an  expectation  and  understanding  on  the  part  of  both  that  Pope  would 
sell  the  horses  which  he  bought  of  the  plaintiff  as  he  had  opportunity, 
and  that  he  was  impliedly  authorized  to  sell  this  horse  to  the  defendant. 
Hubbell  v.  Flint,  13  Gray,  277  ;  Bragg  v.  Boston  &  Worcester  Railroad, 
9  Allen,  54;  Lynde  y.  McGregor,  13  Allen,  172;  First  National  Bank 
v.  Goodsell,  107  Mass.  149.  The  testimony  of  Trull  as  to  the  message 
sent  to  Pope  by  the  plaintiff,  about  the  middle  of  June,  was  of  a  conver- 
sation so  soon  after  the  sale  of  June  2  to  the  defendant,  that  the  judge 
might  well  admit  it  in  his  discretion.  It  related  to  the  general  course 
of  dealing  of  which  the  sale  to  Pope  of  the  horse  replevied  was  a  part 

The  jury  were  rightly  permitted  to  find  that  the  plaintiff'  impliedly 


86  ANONYMOUS.  [CHAP.  II. 

authorized  the  sale  by  Pope  to  the  defendant,  and  that  he  was  estopped 
to  deny  the  validity  of  the  title  which  the  defendant  acquired,  relying 
on  Pope's  possession  ami  apparent  ownership. 

Exceptions  overruled. 

Note.  —  Statutes  have  been  passed  regulating  conditional  sales  in  Alabama,  Iowa, 
Kentucky,  .Maine,  Massachusetts  (as  to  household  furniture  only),  Missouri,  Nebraska, 
New  Hampshire,  New  York,  North  Carolina,  Ohio,  South  Carolina,  Texas,  Vermont, 
Virginia,  West  Virginia,  Wisconsin,  and  perhaps  other  States.  Such  statutes  usually 
require  the  terms  of  the  sale  to  be  iu  writing  aud  recorded  in  order  to  make  the  condi- 
tions effectual  as  to  third  parties. 


SECTION   IV. 

Sale  of  Goods  not  Specified. 

ANONYMOUS. 
In  the  King's  Bench,  Michaelmas  Term,  1505. 

[Reported  in  Keilwey,  77,  pi.  25.] 

In  an  action  of  trespass  on  the  case  the  plaintiff  declared  that  he  had 
bought  of  the  defendant  twenty  quarters  of  malt  for  a  certain  sum  of 
money  paid  beforehand,  which  he  left  with  the  defendant  to  keep  safely 
to  his  use  until  a  certain  day  had  passed,  and  the  defendant  took  upon 
himself  to  do  this.  Before  the  day  for  delivery  the  defendant  converted 
the  said  malt  to  his  own  use  i,o  the  wrong  and  damage  of  the  plaintiff, 
&c.  More.  The  plaintiff  has  declared  that  he  bought  twenty  quarters 
of  malt,  and  has  not  shown  that  it  was  in  sacks,  so  that  by  the  purchase 
the  property  was  not  changed,  for  the  plaintiff  could  [not]  take  this 
malt  from  the  defendant's  storehouse,  by  virtue  of  such  a  sale  of  unas- 
certained malt,  nor  can  he  have  an  action  of  detinue;  but  if  it  was  in 
sacks  or  in  another  manner  severed  from  the  rest  of  the  malt,  there  the 
purchase  altera  the  property  so  that  the  vendee  can  take  it  or  have  deti- 
nue, and  for  the  same  reason  an  action  on  the  case ;  but  as  the  case  is 
here  he  is  put  to  his  action  of  debt  for  the  malt.  And  the  matter  was 
considered  at  the  bar  and  then  by  the  whole  bench.  Upon  which 
I  i.owiKE  said,  truly  the  case  is  good,  and  many  good  cases  touching 
the  matter  have  been  put,  nevertheless  the  words  at  the  time  of  the  pur- 
chase govern  the  whole  matter.  If  a  man  sells  me  one  of  the  horses  in 
his  stable,  and  grants  further  that  lie  will  deliver  the  horse  to  me  by  a 
certain  day,  I  may  not  take  the  horse  without  his  delivery;  but  if  he 
sells  me  one  of  the  horses  in  his  stable  for  a  certain  sum  of  money  paid 
beforehand,  I  may  take  the  horse,  —  whatever  horse  pleases  me  without 
any  delivery  ;  and  in  both  cases  if  a  third  party  converts  all  the  horses 


SECT.  IV.]  WHITEHOUSE   V.   FROST.  87 

to  his  own  use  so  that  I  cannot  secure  my  bargain,  I  shall  have  an  action 
on  the  case  against  him  because  of  the  payment  of  the  money.  .  .  . 
And  if  I  covenant  with  a  carpenter  to  make  a  house  by  a  certain  day, 
and  lie  does  not  make  the  house  by  the  day,  I  shall  have  a  good  action 
on  the  case  because  of  the  payment  of  my  money,  and  yet  it  sounds 
only  in  covenant,  and  without  payment  of  money  in  this  case  no  rem- 
edy, and  yet  if  he  makes  the  house,  and  makes  it  badly,  action  on  the 
case  lies,  and  also  for  nonfeasance  if  the  money  be  paid,  action  on  the 
case  lies.  So  that  it  seems  to  me  in  the  case  at  bar  the  payment  of 
the  money  is  the  cause  of  the  action  on  the  case  without  any  alteration 
of  any  property.1 


WHITEHOUSE  and  Others,  Assignees  of  Townsend,  a  Bankrupt, 
v.  J.  FROST  and  L.  FROST,  BUTTON,  and  BANCROFT. 

In  the  King's  Bench,  July  6,  1810. 

[Reported  m  12  East,  614.] 

In  trover  to  recover  the  value  of  some  oil,  the  property  of  the  bank- 
rupt, which  was  tried  at  Lancaster,  in  March  last,  a  verdict  was  found 
for  the  plaintiffs  for  £390,  subject  to  the  opinion  of  the  court  on  the 
following  case  :  — 

The  plaintiffs  are  assignees  of  John  Townsend,  late  a  merchant  at 
Liverpool ;  the  two  Frosts  are  merchants  and  partners  in  Liverpool ; 
and  the  other  defendants,  Dutton  &  Bancroft,  are  also  merchants  and 
partners  in  the  same  town.  On  the  7th  of  February,  1809,  Townsend 
purchased  from  the  defendants,  J.  &  L.  Frost,  ten  tons  of  oil,  at  £39 
per  ton,  amounting  to  £390,  for  which  Townsend  was  to  give  his  accept- 
ance payable  four  months  after  date  ;  and  a  bill  of  parcels  was  rendered 
to  Townsend  by  the  Frosts,  a  copy  of  which  is  as  follows  :  — 

J  This  case  is  also  reported  in  Keilwey,  69,  pi.  2,  and  in  Y.  B.20  Hy.  VII.  8, 18.  In 
the  latter  report  Kiugsmil,  Justice,  said  :  "  This  action  does  not  lie,  but  debt  should  be 
brought,  for  the  property  is  not  changed  by  the  bargain,  because  it  is  not  ascertained, 
and  that  must  he  done  by  the  delivery  of  the  defendant.  And  it  is  at  his  pleasure  to 
pay  whatever  grains  he  will,  for  if  he  buys  twenty  quarters  of  another  he  may  pay  the 
plaintiff  with  them,  which  proves  that  the  property  is  not  in  the  plaintiff,  no  more  than 
the  money  which  the  plaintiff  shall  pay  to  the  defendant." 

In  18  Edw.  IV.  14,  the  justices  agreed  that  a  grant  to  take  a  deer  in  the  grantor's 
park  did  not  pass  property  in  any  deer.  Brian,  C.  J.,  added:  "But  if  I  have  a  black 
deer  among  others  in  my  park,  I  can  grant  him  and  the  grant  is  good;  and  if  I  have 
two  among  others  known,  and  I  grant  one  or  both  of  them,  the  graut  is  good,  for  this 
reason,  that  it  is  ascertained  what  thing  is  granted." 

In  Ileywood's  Case,  2  Rep.  .*?6,37<7.  it  was  resolved  "If  I  give  you  one  of  mv  horses 
in  my  stable,  there  you  shall  have  an  election,  for  you  shall  be  the  first  agent  by  taking 
or  seisnre  of  oue  of  them." 


88  WHITEHOUSE   V.   FROST.  [CHAP.  II. 

Liverpool,  7th  February,  1809. 

Mr.  John  Townsend,  Bought  of  J.  &  L.  Frost, 

Ten  tons  Greenland  whale  oil  in  Mr.  Staniforth's  cisterns,  at  your 

risk,  at  £39 £390 

Or. 

1809.     February  14.     By  acceptance £390 

For  J.  &  L.  F.,  Win.  Pemberton. 

The  said  ten  tons  of  oil  at  the  time  of  his  purchase  were  part  of  forty 
tons  of  oil  lying  in  one  of  the  cisterns  in  the  oil-house  at  Liverpool,  the 
key  of  which  cistern  was  in  the  custody  of  the  other  defendants,  Dutton  & 
Bancroft,  who  had  before  that  time  purchased  from  J.  R.  &  J.  Freme, 
of  Liverpool,  merchants,  the  said  forty  tons  of  oil  in  the  same  cistern  ; 
and  upon  such  purchase  received  from  the  Fremes  the  ke}*  of  the  cistern. 
Afterwards  Dutton  &  Bancroft  sold  ten  of  the  forty  tons  they  had  so 
bought  (being  the  ten  tons  in  question)  to  the  defendants,  the  Frosts, 
who  sold  the  same  in  the  manner  before  stated  to  Townsend.  On  the 
7th  of  February,  the  day  on  which  Townsend  bought  the  ten  tons  of  oil, 
he  received  from  the  defendants,  Frosts,  an  order  on  Dutton  &  Bancroft, 
who  held  the  key  of  such  cistern,  they  having  other  interest  therein  as 
aforesaid,  to  deliver  to  him,  Townsend,  the  said  ten  tons  of  oil ;  a  copy 
of  which  is  as  follows  :  — 

Messrs.  Dutton  &  Bancroft,  — 

Please  to  deliver  the  bearer,  Mr.  John  Townsend,  ten  tons  Greenland 
whale  oil,  we  purchased  from  you  8th  November  last. 

(Signed)  J.  &  L.  Frost. 

The  order  was  taken  to  Dutton  &  Bancroft  by  Townsend,  and  accepted 
by  them  upon  the  face  of  the  order  as  follows  :  "  1809.    Accepted,  14th 
February.     Dutton  &  Bancroft."    Townsend,  according  to  the  terms  of 
the  bill  of  parcels,  namely,  on  the  14th  of  February,  1809,  gave  to  the 
defendants,  Frosts,  his  acceptance  for  the  amount  of  the  oil,  payable 
four   months   after   date ;    but  which   acceptance    has  not  been   paid. 
Townsend  never  demanded  the  oil  from  Dutton  &  Bancroft,  who  had 
the  custody  of  it.     The  oil  was  not  subject  to  any  rent;  the  original 
importer  having  paid  the  rent  for  twelve  months,  and  sold  it  rent  free 
for  that  time,  which  was  not  expired  at  Townsend's  bankruptcy.     On 
the  23d  of  May,  1809,  about  three  months  after  the  purchase  of  the  ten 
tons  of  oil,  a  commission  of  bankrupt  issued  against  Townsend,  under 
which  he  was  duly  declared  a  bankrupt,  and  the  plaintiffs  appointed 
his  assignees.     At  the  time  of  the  purchase,  and  also  at  the  time  of 
Townsend's  being  declared  a  bankrupt,  the  oil  was  lying  in  the  cistern 
mixed  with  other  oil  in  the  same  ;  and  some  time  afterwards  the  defend- 
ants refused  to  deliver  the  same  to  the  plaintiffs,  notwithstanding  a 
demand  was  made  for  the  same  by  the  assignees,  and  a  tender  of  any 
charges  due  in  respect  thereof.    When  the  whole  of  the  oil  lying  in  any 


SECT.  IV.]  WIIITEIIOUSE   V.   FROST.  89 

of  the  cisterns  in  the  oil-house  is  sold  to  one  person,  the  purchaser 
receives  the  key  of  the  cistern  ;  but  when  a  small  parcel  is  sold,  the  key 
remains  with  the  original  owner;  and  the  purchaser  is  charged  in  pro- 
portion to  the  quantity  of  oil  sold,  with  rent  for  the  same,  until  delivered 
out  of  the  oil-house,  unless  such  rent  be  paid  by  the  original  importer, 
as  was  the  fact  in  the  present  case.  If  the  plaintiff's  were  entitled  to 
recover,  the  verdict  was  to  stand  ;  if  not,  a  nonsuit  was  to  be  entered. 

There  was  a  similar  action  by  the  same  plaintiffs  against  J.  R.  Freme 
and  J.  Freme,  Dutton,  and  Bancroft,  the  circumstances  of  which  were 
in  substance  the  same. 

J.  Clarke,  for  the  plaintiffs. 

Scarlett,  contra. 

Lord  Ellenborough,  C.  J.  This  case  presents  a  difference  from 
the  ordinary  cases  which  have  occurred  where  the  sale  has  been  of  chat- 
tels in  their  nature  several,  and  where  the  transfer  of  the  property  from 
the  vendor  by  means  of  an  order  for  delivery  addressed  to  the  wharfinger 
or  other  person  in  whose  keeping  they  were,  and  accepted  by  him,  has 
been  held  to  be  equivalent  to  an  actual  deliver}' ;  the  goods  being  at  the 
time  capable  of  being  delivered.  Here,  however,  there  is  this  distin- 
guishing circumstance,  that  the  ten  tons  of  oil  till  measured  off  from 
the  rest  was  not  capable  of  a  separate  delivery ;  and  the  question  is, 
whether  that  be  a  distinction  in  substance  or  in  semblance  only.  The 
whole  forty  tons  were  at  one  time  the  property  of  Dutton  &  Bancroft, 
who  had  the  key  of  the  cistern  which  contained  them ;  and  they  sold 
ten  tons  to  the  Frosts,  who  sold  the  same  to  Townsend,  the  bankrupt, 
and  gave  him  at  the  same  time  an  order  on  Dutton  &  Bancroft  for  the 
delivery  to  him  of  the  ten  tons.  To  that  order  Dutton  &  Bancroft 
attorn,  as  I  may  say ;  for  the}'  accept  the  order,  by  writing  upon  it 
"Accepted,  14th  of  February,  1809,"  and  signing  their  names  to  it. 
From  that  moment  they  became  the  bailees  of  Townsend,  the  vendee  ; 
the  goods  had  arrived  at  their  journey's  end,  and  were  not  in  transitu; 
all  the  right  then  of  the  sellers  was  gone  by  the  transfer,  and  they  could 
no  longer  control  that  delivery  to  which  they  had  virtually  acceded  by 
means  of  their  order  on  Dutton  &  Bancroft  accepted  by  the  latter.  The 
question  of  stopping  in  transitu  does  not  arise,  taking  the  Frosts  to  be 
the  original  sellers,  as  between  them  and  the  bankrupt ;  the  oil  had 
never  been  in  the  hands  of  the  Frosts  ;  they  only  assigned  a  right  to  it 
in  the  hands  of  the  common  bailees,  which  before  had  been  assigned  to 
them. 

Grose,  J.  There  can  be  no  doubt  that  at  the  time  of  Townsend's 
bankruptcy  the  ten  tons  of  oil  in  the  cistern  were  at  the  risk  of  the 
bankrupt.  All  the  delivery  which  could  take  place  between  these  par- 
ties had  taken  place.  Dutton  &  Bancroft,  who  had  the  custody  of  the 
whole  in  their  cistern,  had  accepted  the  order  of  the  sellers  for  the 
delivery  to  the  bankrupt,  and  it  only  remained  for  Townsend,  together 
with  Dutton  &  Bancroft,  to  draw  off  the  ten  tons  from  the  rest. 

Le  Blanc,  J.     Dutton  &  Bancroft  had  sold  the  ten  tons  of  oil  in 


90  AUSTEN   V.   CRAVEN.  [CHAP.  II. 

question  (which  was  part  of  a  larger  quantity,  the  whole  of  which  was 
under  their  lock  and  key)  to  the  Frosts,  who  sold  the  same  to  Townsend ; 
and  there  is  no  claim  on  the  part  of  the  defendants,  Dutton  &  Bancroft; 
to  detain  the  oil  for  warehouse  rent.  The  Frosts  never  had  any  other 
possession  of  the  oil  than  through  Dutton  &  Bancroft ;  but  they  gave 
to  Townsend  an  order  on  these  latter  to  deliver  it  to  him  ;  and  after  the 
acceptance  of  that  order  Dutton  &  Bancroft  held  it  for  his  use.  But 
something,  it  is  said,  still  remained  to  be  done,  namely,  the  measuring 
off  of  the  ten  tons  from  the  rest  of  the  oil.  Nothing,  however,  remained 
to  be  done  in  order  to  complete  the  sale.  The  objection  only  applies 
where  something  remains  to  be  done  as  between  the  buyer  and  seller, 
or  for  the  purpose  of  ascertaining  either  the  quantity  or  the  price,  neither 
of  which  remained  to  be  done  in  this  case ;  for  it  was  admitted  by  the 
persons  who  were  to  make  the  delivery  to  Townsend,  that  the  quantity 
mentioned  in  the  order  was  in  the  cistern  in  their  custody,  for  the}-  had 
before  sold  that  quantity  to  the  Frosts,  of  whom  Townsend  purchased 
it,  and  had  received  the  price.  Therefore,  though  something  remained 
to  be  done  as  between  the  vendee  and  the  persons  who  retained  the 
custody  of  the  oil,  before  the  vendee  could  be  put  into  separate  pos- 
session of  the  part  sold,  yet  as  between  him  and  his  vendors  nothing 
remained  to  perfect  the  sale. 

Batley,  J.  There  is  no  question  of  transitus  here  ;  the  goods  were 
at  their  journey's  end.  When,  therefore,  Dutton  &  Bancroft,  who  were 
then  the  owners  of  the  whole,  sold  ten  tons  of  the  oil  to  the  Frosts, 
those  ten  tons  became  the  property  of  the  Frosts ;  and  when  they  sold 
the  same  to  Townsend,  and  gave  him  an  order  upon  Dutton  &  Bancroft 
for  the  delivery  of  the  ten  tons  purchased  of  them,  the  effect  of  that 
order  was  to  direct  Dutton  &  Bancroft  to  consider  as  the  property  of 
Townsend  the  ten  tons  in  their  possession,  which  before  was  considered 
as  the  property  of  the  Frosts  ;  and  by  the  acceptance  of  that  order 
Dutton  &  Bancroft  admitted  that  they  held  the  ten  tons  for  Townsend, 
as  his  property ;  and  he  had  a  right  to  go  and  take  it,  without  the 
interference  of  the  Frosts.  Postea  to  the  plaintiffs. 


AUSTEN   v.    CRAVEN   and   Another. 

In  the  Common  Pleas,  November  10,  1812. 

[Reported  in  4  Taunton,  644.] 

The  plaintiff's  declaration  contained  two  counts  in  case,  founded  on 
a  breach  of  the  duty  which  he  averred  to  arise  out  of  a  sale  made 
of  sugars  by  the  defendants  to  Kruse,  and  a  further  sale  by  Kruse  to 
the  plaintiff  ;  and  also  a  count  in  trover  for  sugars.  Upon  the  trial  of 
the  cause  a1  the  sittings  after  Hilary  Term,  1812,  at  Guildhall,  before 
Mansfield,  Ch.  J.,  it  appeared  that  the  plaintiff  had  in  his  two  first 


SECT.  IV.]  AUSTEN    V.    CRAVEN.  91 

counts  incorrectly  described  the  contract ;  it  therefore  became  a  ques- 
tion, whether  the  plaintiff  could  recover  in  trover  under  the  following 
circumstances:  On  the  7th  of  December,  1809,  the  defendants,  who 
were  sugar-refiners,  entered  into  a  contract  to  sell  to  Renold  Dresden 
(who  was  clerk  of,  and  bought  for  the  use  of  Kruse)  50  hogsheads  of 
sugar,  the  quality  of  which  was  described  as  being  double  loaves,  at 
100s.  per  cwt.,  50  hogsheads  of  the  quality  described  as  Turkey  B.  at 
85s.,  50  hogsheads  of  the  qualit}-  called  Turkey  C.  at  75*.,  and  50 
others  of  the  quality  called  Turkey  A.  at  108s.,  to  be  delivered  free  on 
board  a  British  ship.  They  were  to  be  paid  for  at  the  expiration  of 
four  months,  allowing  two  months'  interest,  the  seller  paying  all  ex- 
penses up  to  the  1st  day  of  April,  1810  ;  after  that  time,  if  not  shipped, 
the  buyer  was  to  pay  expenses  ;  and  it  was  agreed  that  Kruse  should 
give  the  defendants  his  guaranty  in  writing  for  R.  Dresden.  The 
seller  of  sugars,  upon  delivering  them  on  board  a  British  ship  for  ex- 
portation, becomes  entitled  to  receive  a  considerable  drawback,  which 
is  paid  him  by  the  government.  The  appellations  given  to  the  several 
parcels  of  sugar  denoted  certain  qualities  of  sugar  known  in  the  trade. 
Kruse  being  in  embarrassed  circumstances,  on  the  30th  of  January, 
not  having  then  named  an}'  British  ship  on  board  of  which  the  sugars 
or  any  of  them  should  be  delivered,  nor  having  paid  for  them,  and  no 
part  of  them  having  been  delivered,  he  resold  to  the  defendants,  at  an 
advanced  price,  the  150  hogsheads  lastly  named  in  the  original  con- 
tract, and  shortly  after  he  contracted  to  sell  to  the  plaintiff  the  50 
hogsheads  of  double  loaves,  and  gave  the  defendants  an  order  to  'de- 
liver them  to  the  plaintiff.  The  plaintiff  gave  notice  to  the  defendants 
of  his  intended  contract,  and  inquired  whether  the}7  had  50  hogsheads 
of  sugar  belonging  to  Kruse,  and  whether  he,  the  plaintiff,  might  safely 
purchase  them  of  Kruse,  and  pay  him  the  price,  to  which  they  answered 
in  the  affirmative,  and  said  that  they  had  the  50  hogsheads  and  would 
deliver  them.  The  plaintiff  thereupon  paid  Kruse  the  price  at  which 
he  had  contracted  for  them,  and  required  the  defendants  to  deliver 
them,  which  they,  being  unable  to  obtain  payment  from  Kruse,  refused 
to  do,  whereupon  the  plaintiff  brought  this  action  ;  and  it  was  urged 
for  him  that,  although  ordinarily  a  vendor  has  the  right  to  detain  the 
goods  which  he  contracts  to  sell  until  he  is  paid  for  them,  yet  that 
these  defendants,  having  told  the  plaintiff  that  he  might  safely  buy  and 
pay  Kruse,  could  not  afterwards  set  up  that  lien.  For  the  defendants 
it  was  objected  that  no  specific  50  hogsheads  had  been  so  separated 
from  the  defendants'  stock  as  to  enable  the  plaintiff  to  recover  in 
trover.  The  jury  found  a  verdict  for  the  plaintiff,  subject  to  this  objec- 
tion, which  was  reserved  by  the  chief  justice  ;  and  in  Easter  term. 
Shepherd,  Serjt.,  obtained  a  rule  nisi  to  set  aside  the  verdict,  and 
enter  a  nonsuit,  against  which 

Vaughan,  Serjt.,  now  showed  cause. 

Shepherd  and  Best,  Serjts.,  in  support  of  the  rule. 

Mansfield,  C.  J.      What  the   plaintiffs  counsel  says  would   have 


92  GILLETT   V.   HILL.  [CHAP.  II. 

been  an  answer  to  the  objection,  if  there  had  been  a  specific  quantity 
of  loaves  in  esse  ;  although  it  was  part  of  the  contract  that  they  were 
to  be  delivered  on  board  a  British  ship,  there  would  have  been  con- 
version enough.  But  certainly,  upon  the  evidence,  there  is  no  answer- 
ing the  objection.  Trover  cannot  be  maintained  but  for  specific  goods. 
Any  sugars  of  required  quality  would  have  satisfied  this  contract.  It  is 
a  contract  for  a  certain  quantity  of  a  specified  quality  of  sugars.  I  say 
nothing  on  the  case  of  the  oil ;  there  it  is  held  that  trover  will  lie  for  a 
specific  quantity  of  a  liquid,  mixed  with  a  certain  other  quantity  of  the 
same  liquid,  without  its  ever  having  been  separated  ;  how  it  is  to  be 
distinguished  from  the  mass,  I  know  not ;  but  that  case  stands  quite  on 
its  own  bottom  ;  it  is  unlike  other  cases. 

Gibbs,  J.     We  need  sa}'  nothing  on  that  case ;  suffice  it  that  it  is 
very  distinguishable  from  this.  Mule  absolute. 


GILLETT  v.  HILL   and   Another. 

In  the  Exchequer,  Hilary  Term,  1834. 

[Reported  in  2  Crompton  §•  Meeson,  530.] 

Trover  to  recover  the  value  of  fifteen  sacks  of  flour. 

At  the  trial  before  Lord  Lyndhurst,  C.  B.,  at  the  London  sittings 
after  last  Trinity  term,  it  appeared  that  one  Orbell,  a  miller,  had  given 
the  plaintiff  an  order  on  the  defendants,  who  were  his  (Obeli's)  wharf- 
ingers, for  the  delivery  of  twenty  sacks  of  flour,  which  order  was  in  the 
following  terms  :  — 

Mrs.  E.  Hill  &  Son, 

Please  to  deliver  to  Mr.  Gillett  twenty  sacks  of  households. 

Richard  Orbell. 

This  order  was  presented  by  the  plaintiff's  carman  at  the  defendants' 
counting-house,  but  the  defendants'  foreman  said  that  they  had  not 
more  than  five  sacks  to  spare,  but  he  might  have  that  quantity.  The 
carman  then  went  away  leaving  the  delivery  order  with  the  defendants' 
foreman,  and  it  was  filed  by  the  clerk  in  the  usual  way.  On  the  same 
day  the  carman  brought  an  order  from  the  plaintiff  "to  deliver  five 
sacks  ex  20,"  which  were  accordingly  delivered.  Application  was 
made  the  next  day  for  the  remainder  of  the  flour  mentioned  in  the 
order,  when  the  defendants'  foreman  said  that  the  plaintiff  should 
have  it  as  soon  as  they  got  any.  Shortly  after  this,  another  application 
was  made,  to  which  the  answer  was,  that  the  defendants  had  not  any 
flour  of  OrbelPs  to  deliver.  The  delivery  order  for  twenty  sacks  signed 
by  Orbell  was,  pursuant  to  notice  for  that  purpose,  produced  at  the 
trial ;  but  the  defendants  not  having  produced  the  order  from  the  plain- 
tiff to  deliver  "  live  sacks  ex  20,"  the  carman  proved  the  delivery  of  an 


SECT.  IV.]  GILLETT   V.    HILL.  93 

order  from  the  plaintiff  to  that  effect,  and  that  the  five  sacks  were  accord- 
ingly delivered.  The  case  on  behalf  of  the  defendants  was,  that  they 
had  no  flour  of  Orbell's  to  deliver ;  but  their  clerk  on  being  cross  ex- 
amined would  not  swear  that  there  were  not  fifty  sacks  of  Orbell's  flour 
on  the  defendants'  wharf  at  the  time  that  the  order  was  lodged  ;  but 
said  that,  if  there  were,  they  were  appropriated  to  prior  orders.  But 
no  such  orders  were  produced  by  the  defendants.  It  was  objected  for 
the  defendants,  that,  as  no  specific  fifteen  sacks  of  flour  had  been 
selected  or  appropriated  by  the  wharfingers,  so  as  to  vest  the  property 
in  the  vendee,  trover  was  not  maintainable.  The  plaintiff  contended 
that  the  acceptance  of  the  delivery  order  for  twent}'  sacks  was  a  virtual 
appropriation  of  that  quantit}*  to  the  plaintiffs  use,  and  that  the  sub- 
sequent demand  and  refusal  were  evidence  of  a  conversion.  Lord 
Lyndhurst,  C.  B.,  left  it  as  a  question  to  the  jury,  whether  there  had 
been  an  acceptance  by  the  defendants  of  the  order  for  the  deliver}'  of 
the  twenty  sacks,  and  the  jury  found  in  the  affirmative,  and  gave  a 
verdict  for  the  plaintiff  for  the  value  of  the  fifteen  sacks.  Bompas, 
Serjt.,  in  Michaelmas  term  last,  obtained  a  rule  for  a  new  trial,  against 
which 

J.  Williams  was  to  have  shown  cause,  but  the  court  called  on 

I3ompas,  Serjt.,  and  Hoggins,  in  support  of  the  rule. 

Lord  Lyndhurst,  C.  B.  I  am  of  opinion  that  there  ought  not  to  be  a 
new  trial  in  this  case.  A  point  of  law  has  been  attempted  to  be  raised, 
but  the  case  was  decided  b}T  the  verdict  of  the  jury  on  the  facts.  The 
order  was  in  these  terms:  "  Mrs.  E.  Hill  &  Son,  please  to  deliver  to 
Mr.  Gillett  twenty  sacks  of  households."  That  order,  on  being  pre- 
sented, was  accepted,  and  accepted  generally ;  at  least  there  was  no 
evidence  of  an}'  qualification  of  the  acceptance.  There  was  no  indorse- 
ment of  a  partial  acceptance,  and  it  was  filed  by  the  defendants  in  the 
way  in  which  it  was  proved  that  orders  accepted  generally  were  filed 
b}r  them  in  the  course  of  their  business.  That  view  of  the  case  was 
confirmed  by  the  evidence  of  the  plaintiff's  carman,  who  stated  that, 
after  leaving  the  first  order  for  twenty  sacks,  he  had  afterwards  brought 
an  order  from  the  plaintiff  "  for  five  sacks  ex  20,"  and  that  five  sacks 
were  delivered  according  to  that  order.  The  jury  were  of  opinion  that 
the  order  for  twenty  sacks  was  accepted  generally ;  and  if  that  were 
so,  it  was  an  admission  that  there  were  twenty  sacks  of  Orbell's  flour 
in  the  defendants'  possession.  The  case  has  been  argued,  however,  on 
the  ground  of  there  having  been  more  than  twenty  sacks  of  flour 
belonging  to  Orbell  in  the  defendants'  possession  ;  but  there  is  no  dis- 
tinct proof  on  the  part  of  the  defendants  that  they  had  more  of  Orbell's 
flour  in  their  possession  than  those  twenty  sacks,  or  that  the  plaintiff 
knew  that  the  defendants  had  more  in  their  possession.  I  think,  there- 
fore, that  the  verdict  was  right,  and  that  trover  is  maintainable.  There 
must,  therefore,  be  no  rule. 

Bayley,  B.  I  am  of  the  same  opinion.  There  is  no  doubt  that  there 
was  originally  an  order  signed  by  Orbell,  and  addressed  to  the  defend- 


94  GILLETT   V.    HILL.  [CHAP.  II. 

ants,  requesting  them  to  deliver  twenty  sacks  of  flour  to  the  plaintiff. 
The  order  does    not  say  twenty  sacks   ex  a   greater  quantity,  to  be 
selected  by  the  defendants,  but  twenty  sacks  specifically.     The  defend- 
ants knew  what  quantity  of  flour  belonging  to  Orbell  they  had,  and 
they  might  have  indorsed  on  the  back  of  the  order  that  they  had  so 
many  only  ;  and,  from  the  circumstance  of  there  being  no  indorsement 
that  they  accepted  the  order  to  a  limited  extent,  and  to  a  limited  extent 
only,  I  should  have  thought  that  the  jury  would  act  upon  a  safe  prin- 
ciple in  believing  that  the  defendants  had  twenty  sacks  belonging  to 
Orbell  in  their  possession,  and  the  verdict  of  the  jury  therefore  appears 
to  me  consistent  with  the  evidence.     It  appears  to  me,  that,  looking  at 
the  form  of  the  order,  trover  was  the  proper  form  of  action,  and  that 
the  cases  which  have  been  cited    do  not   apply  to  this  case.      Those 
cases  may  be  divided  into  two  classes :  one  in  which  there  has  been  a 
sale  of  goods,  and  something  remains  to  be  done  by  the  vendor,  and 
until  that  is  done  the  property  does  not  pass  to  the  vendee  so  as  to 
entitle  him  to  maintain  trover.      The  other  class  of  cases  is,  where 
there  is  a  bargain  for  a  certain  quantity  ex  a  greater  quantity,  and  there 
is  a  power  of  selection  in  the  vendor  to  deliver  which  he  thinks  fit ; 
then  the  right  to  them  does  not  pass  to  the  vendee  until  the  vendor  has 
made  his  selection,  and  trover  is  not  maintainable  before  that  is  done. 
If  I  agree  to  deliver  a  certain  quantity  of  oil,  as  ten  out  of  eighteen 
tons,  no  one  can  say  which  part  of  the  whole  quantity  I  have  agreed  to 
deliver  until  a  selection  is  made.     There  is  no  individuality  until  it  has 
been  divided.     But  those  cases  do  not  apply  here.     This  was  an  order 
to  deliver  twenty  sacks  of  flour,  not  out  of  a  greater  quantity,  but 
twenty  sacks  specifically  ;  and  when  the  defendants  accept  that  order 
without  restriction,  they  admit  that  they  have  twenty  sacks,  which  they 
will  appropriate  to  that  order,  and  the  defendants  have  no  right  after- 
wards to  say  that  they  have  not  twenty  sacks  unappropriated.     The 
defendants  should  not  have  accepted  the  order  generally,  unless  they 
meant  to  be  bound  by  it ;  but  having  accepted  the  order  generally,  it 
seems  to  me  that  the  property  in  the  flour  passed  to  the  plaintiff',  and 
that  the  verdict  is  right. 

YAr<;ii,\N,  B.  I  think  that  the  verdict  was  warranted  both  in  law 
and  in  fact.  The  action  of  trover  is  founded  upon  a  right  of  property, 
and  to  maintain  the  action  it  is  essentially  necessary  to  show  property 
in  the  plaintiff,  and  possession  and  a  conversion  by  the  defendant.  All 
those  requisites  are  in  my  opinion  complied  with  in  this  case.  Attend- 
ing to  the  facts  of  the  case,  the  delivery  order  is  taken  to  the  wharfinger 
to  see  if  the  party  giving  the  order  has  the  articles  mentioned  in  it  in 
the  wharfinger's  possession.  The  defendants  in  this  instance  attorn  as 
it  were  to  the  delivery  order,  and  admit  the  plaintiff's  right  to  call  upon 
them  to  deliver  twenty  sacks  of  flour.  Having  received  that  order,  it 
is  binding  on  them.  If  they  were  not  in  a  condition  to  comply  with 
the  order,  they  should  have  communicated  that  fact  when  the  order  was 
delivered ;  and  if  they  had  only  five  sacks  they  should  have  limited 


SECT.  IV.]  KNIGHTS   V.    WIFFEN.  95 

their  acceptance  of  it  to  that  amount,  by  indorsing  it  on  the  order. 
Instead  of  that,  they  receive  the  order  generally,  they  file  it,  and  they 
produce  it  on  the  trial.  But  then  it  is  said  that  the  defendants  have 
not  appropriated  any  particular  fifteen  sacks  to  this  order;  and  in  sup- 
port of  that  ohjection  several  cases  have  been  cited.  In  all  those  cases, 
however,  if  they  are  examined,  it  will  appear  that  it  was  held  essential 
that  certain  acts  should  be  done,  as  weighing,  &c,  before  the  property 
vested  ;  and  as  those  acts  had  not  been  done,  the  plaintiff  failed  to 
prove  an  absolute  property  in  him.  Here,  however,  the  defendants 
admitted  that  they  had  twenty  sacks  in  their  possession  (the  property 
of  Orbell),  and  they  afterwards  refused  to  deliver  fifteen  of  that  num- 
ber. Upon  the  authority  of  the  cases,  I  think  there  is  sufficient  evi- 
dence of  property,  possession,  and  conversion,  to  warrant  the  jury  in 
finding  their  verdict  for  the  plaintiff,  and  to  sustain  this  form  of 
action. 
Gurnet,  B.,  concurred.  Bule  discharged. 


KNIGHTS   v.   WIFFEN. 

In  the  Queen's  Bench,  June  18,  1870. 

[Reported  in  Law  Reports,  5  Queen's  Bench,  660.] 

Declaration  for  conversion  of  sixty  quarters  of  barley  of  the 
plaintiff. 

Pleas :  1.  Not  guilty.  2.  That  the  barley  was  not  the  property  of 
the  plaintiff. 

Issue  thereon. 

At  the  trial  before  Keating,  J.,  at  the  Surrey  Spring  Assizes,  it  ap- 
peared that  the  defendant,  a  corn-merchant,  had  a  large  quantity  of 
barley,  in  sacks,  lying  in  his  granary,  which  adjoined  °the  Stanstead 
Station  of  the  Great  Eastern  Railway.  He  sold  eighty  quarters  of 
this  barley  to  one  Maris,  but  no  particular  sacks  were  appropriated  to 
the  purchaser.  While  the  barley  remained  in  the  defendant's  granary, 
subject  to  the  orders  of  Maris,  the  latter  sold  sixty  quarters  of  It  to  the 
plaintiff,  who  paid  him  for  them,  and  received  from  him  the  following 
delivery  order,  addressed,  as  was  usual  in  similar  transactions,  to  the 

Station-master,  Stanstead  :  — 

Sir,  —  Deliver  Mr.  T.  Knights  sixty  quarters  of  barley  to  my  order. 

K.  W.  Maris,  Jr. 
June  27,  1868. 

Underneath  was  written,  — 

Thomas  Knights,  Jr., 

Hemingford  Gray,  near  St.  Ives, 

Huntingdonshire. 


96  KNIGHTS   V.    WIFFEN.  [CHAP    II. 

The  plaintiff  sent  this   document   to   the   station-master,    and   wrote 
with  it :  — 

Mi;.  —  I  enclose  Mr.  R.  W.  Maris,  Jr.'s  transfer  of  sixty  quarters  of 
barley  to  my  account.  Please  confirm  this  transfer,  and  send  me  a 
sample,  and  say  what  weight  is  in  due  course. 

On  receipt  of  this  letter  and  the  delivery  order,  the  station-master 
showed  them  both  to  the  defendant,  who  said,  "  All  right;  when  you 
get  the  forwarding  note  I  will  put  the  barley  on  the  line."  Samples 
were  afterwards  given  to  the  station-master,  which  were  sent  by  him 
to  the  plaintiff.  Three  sacks  were  weighed.  The  plaintiff  ultimately 
gave  an  order,  or  forwarding  note,  to  the  station-master,  for  the  sixty 
quarters  of  barley  to  be  sent  to  Cambridge,  which  he  presented  to  the 
defendant,  but  Maris  had  then  become  bankrupt,  and  the  defendant,  as 
unpaid  vendor,  refused  to  part  with  the  barley. 

The  learned  judge  directed  a  verdict  for  the  defendant,  giving  the 
plaintiff  leave  to  move  to  enter  a  verdict  for  £53  18s.  7d.,  the  amount 
claimed. 

A  rule  was  obtained  pursuant  to  the  leave  reserved,  on  the  ground 
that  there  was  evidence  which  ought  to  have  been  submitted  to  the 
jury  to  prove  that  the  defendant  had  accepted  and  agreed  to  act  upon 
the  delivery  order  of  the  vendee  (Maris),  and  thus  passed  the  property 
in  the  sixty  sacks  of  barley ;  or  for  a  new  trial  on  the  ground  that  the 
judge  ought  to  have  directed  a  verdict  for  the  plaintiff  for  three  sacks 
at  least. 

Wood  Hill  (Day  with  him)  showed  cause. 

Ingham  (with  him  Parry,  Serjt.,  and  Kemp)  in  support  of  the  rule. 

Blackburn,  J.  I  think  that  the  plaintiff  is  entitled  to  the  verdict, 
and  the  rule  should  be  made  absolute  to  enter  a  verdict  for  him.  I 
will  state  shortly  what  I  consider  to  be  the  facts  upon  which  the  case 
seems  to  turn.  The  defendant  Wiffen  had  in  his  own  warehouse  a 
large  quantity  of  barley,  and  he  sold  to  Maris  eighty  quarters,  which, 
on  the  contract  between  him  and  Maris,  remained  in  his  possession  as 
unpaid  vendor.  No  particular  sacks  of  the  barley  were  appropriated 
as  between  Maris  and  Wiffen  ;  but  at  the  time  the  contract  was  made 
Maris  had  a  right  to  have  eighty  quarters  out  of  that  barley  appropri- 
ated to  him  ;  and  at  the  same  time  Wiffen,  as  the  unpaid  vendor,  had 
a  right  to  insist  on  payment  of  the  price  before  any  part  of  the  grain 
was  given  up.  Maris  afterwards  entered  into  a  contract  with  the  plain- 
tiff. Knights,  by  which  he  sold  him  sixty  sacks  of  the  barley,  and 
Knights  paid  him  for  them.  A  document  was  given  b}'  Maris  to 
Knights  in  the  shape  of  a  deliver}' order  addressed  to  a  station-master 
of  the  Great  Eastern  Railway,  instructing  him  to  deliver  to  Knights' 
order  sixty  quarters  of  barley  on  his,  Maris',  account.  Knights  for- 
warded it  to  the  station-master,  enclosed  in  a  letter  authorizing  the 
station-master  to  hold  for  him.  The  station-master  went  to  Wiffen, 
and  showed  him  the  delivery  order  and  letter,  and  Wiffen  said,  "All 


SECT.  IV.]  KNIGHTS   V.    WIFFEN.  97 

right;  when  you  receive  the  forwarding  note,  I  will  place  the  barley  on 
the  line."  What  does  that  mean?  It  amounts  to  this,  that  Mans 
having  given  the  order  to  enable  Knights  to  obtain  the  bailey,  Wiffen 
recognized  Knights  as  the  person  entitled  to  the  possession  of  it. 
Knights  had  handed  the  delivery  order  to  the  station-master,  and 
Wiffen,  when  the  document  was  shown  to  him,  said,  in  effect,  lt  It  is 
quite  right ;  I  have  sixty  quarters  of  barley  to  Maris's  order;  I  will 
hold  it  for  you  ;  and  when  the  forwarding-note  comes  I  will  put  it  on 
the  railway  for  you."  Upon  that  statement  Knights  rested  assured, 
and  Wiffen,  by  accepting  the  transfer  which  had  been  informally  ad- 
dressed to  the  station-master,  bound  himself  to  Knights.  The  latter 
accordingly,  when  he  did  not  get  the  goods,  brought  an  action  of 
trover  against  Wiffen,  saying,  as  it  were,  "  You  said  that  you  had  the 
sixt}'  quarters  of  barley,  and  that  you  would  hold  the  goods  for  me. 
You  cannot  refuse  to  deliver  to  me;  if  you  do  refuse  it  will  be  a  con- 
version." And  Wiffen  now  says,  "  It  is  all  true,  but  I  do  refuse  to 
deliver  the  barley.  Granted  that  I  previously  said  I  would  hold  sixty 
quarters  of  bailey  for  you,  yet  I  had  none  to  hold  for  you.  I  had  no 
quarters  belonging  to  Maris,  for  I  never  severed  them  from  the  bulk, 
and  I  am  entitled  to  hold  the  whole  quantity  as  against  Maris,  until  I 
am  paid  the  full  price."  No  doubt  the  law  is  that  until  an  appropri- 
ation from  a  bulk  is  made,  so  that  the  vendor  has  said  what  portion 
belongs  to  him,  and  what  portion  belongs  to  the  buyer,  the  goods  re- 
main in  solido,  and  no  property  passes.  Rut  can  Wiffen  here  be 
permitted  to  say,  "I  never  set  aside  am*  quarters"?  As  to  that, 
Woodley  v.  Coventry,  2  H.  &  C.  164;  32  L.  J.  (Ex.)  18."),  is  very 
much  in  point ;  with  this  difference  only,  that  there  the  plaintiff  acted 
on  the  statement  of  the  warehouseman,  and  altered  his  position  by  pay- 
ing the  vendee  a  part  of  the  price,  and  so  the  doctrine  of  estoppel 
applied  ;  which  doctrine  is  that  where  one  states  a  thing  to  another, 
with  a  view  to  the  other  altering  his  position,  or  knowing  that,  as  a 
reasonable  man,  he  will  alter  his  position,  then  the  person  to  whom  the 
statement  is  made  is  entitled  to  hold  the  other  bound,  and  the  matter 
is  regulated  by  the  state  of  facts  imported  by  the  statement.  Woodley 
had  altered  his  position  by  paying  part  of  the  price,  but  Coventry  did 
not  know  of  it.  In  Stonard  v.  Dunkin,  2  Campb.  344,  it  is  patent  that 
the  defendant  knew  the  money  was  paid.  In  Hawes  v.  Watson.  2  B. 
&  C.  510,  it  appears  that  payment  had  been  made,  but  the  defendant 
did  not  know  of  it,  although,  as  a  reasonable  man,  he  might  have 
known  it  was  likely.  But  in  neither  of  those  cases  did  the  defendants 
know  that  money  was  going  to  be  paid.  In  the  present  case  the 
money  had  been  paid  before  the  presentation  of  the  delivery  order; 
but  1  think,  nevertheless,  that  the  position  of  the  plaintiff  was  altered 
through  the  defendant's  conduct.  The  defendant  knew  that,  when  he 
assented  to  the  delivery  order,  the  plaintiff,  as  a  reasonable  man. 
would  rest  satisfied.  If  the  plaintiff  had  been  met  by  a  refusal  on  the 
part  of  the  defendant,  he  could  have  gone  to  Maris,  and  have  demanded 


98  KNIGHTS   V.    WIFFEN.  [CHAP.  IL 

back  his  money,  very  likely  he  might  not  have  derived  much  benefit  if 
he  had  done  so;  but  he  had  a  right  to  do  it.  The  plaintiff  did  rest 
satisfied  in  the  belief,  as  a  reasonable  man,  that  the  property  had  been 
passed  to  him.  If  once  the  fact  is  established  that  the  plaintiff's  posi- 
tion is  altered  by  relying  on  the  statement  and  taking  no  steps  further, 
the  case  becomes  identical  with  Woodley  v.  Coventry,  2  H.  &  C.  1G4  ; 
32  L.  J.  (Ex.)  185,  and  Hawes  v.  Watson,  2  B.  &  C.  540.  It  is  to  be 
observed,  moreover,  that  the  judgment  of  the  court  in  Woodle}'  v. 
Coventry,  supra,  did  not  rest  on  the  fact  of  the  payment  of  the  price. 
It  will  be  noticed  there  that,  although  the  fact  did  exist  of  pa}mient  of 
price,  Martin,  B.,  seems  to  found  his  decision  on  the  assenting  to  hold, 
and  the  fact  that  when  that  assent  was  communicated  to  the  plaintiffs, 
they  altered  their  position.  In  Gillett  v.  Hill,  2  C.  &  M.  530,  there 
was  no  payment  of  the  price,  and  the  Court  of  Exchequer  gave  judg- 
ment against  the  wharfingers,  on  the  ground  that  they  were  estopped 
from  denying  the  facts,  after  the  other  party  had  altered  his  position, 
reiving  on  their  conduct  when  the  delivery  order  was  presented.  In 
the  present  case  the  plaintiff  altered  his  position,  reiving  on  the  defend- 
ant's conduct  when  the  delivery  order  was  presented.  The  plaintiff 
may  well  say,  "I  abstained  from  active  measures  in  consequence  of 
your  statement,  and  I  am  entitled  to  hold  you  precluded  from  denying 
that  what  vou  stated  was  true." 

Mellor,  J.  I  am  entirely  of  the  same  opinion.  Lord  Ellenborough 
says  in  Stonard  v.  Dunkin,  2  Campb.  344,  "  Whatever  the  rule  may 
lie  between  buyer  and  seller,  it  is  clear  the  defendants  cannot  say  to 
the  plaintiff,  'The  malt  is  not  yours.'  after  acknowledging  to  hold  it  to 
his  account.  By  so  doing,  the}'  attorned  to  him  ;  and  I  should  entirely 
overset  the  security  of  mercantile  dealings  were  I  now  to  suffer  them 
to  contest  the  title."  I  think  the  question  is  concluded  b}'  this  and  all 
the  authorities,  and  the  doctrine  of  estoppel,  when  generally  applied  to 
cases  of  this  kind,  is  certainly  very  useful.  The  foundation  of  that 
doctrine  is  clearly  stated  in  m}'  brother  Blackburn's  book  on  Sale,  p. 
1  C>2,  and  I  am  not  aware  that  any  of  the  cases  he  cites  and  comments 
on  in  support  of  his  reasoning  have  been  ever  overruled,  qualified,  or 
questioned.  He  says,  "This  is  a  rule,  which,  within  the  limits  applied 
by  law,  is  of  great  equity  ;  for  when  parties  have  agreed  to  act  upon 
an  assumed  state  of  facts,  their  rights  between  themselves  are  justly 
made  to  depend  on  the  conventional  state  of  facts,  and  not  on  the 
truth.  The  reason  of  the  rule  ceases  at  once  when  a  stranger  to  the 
arrangement  seeks  to  avail  himself  of  the  statements  which  were  not 
made  as  a  basis  for  him  to  act  upon.  They  are  for  a  stranger  evidence 
against  the  party  making  the  statement,  but  no  more  than  evidence 
which  may  be  rebutted  ;  between  the  parties  thev  form  an  estoppel  in 
law." 

Lush,  J.  I  also  think  that  the  plaintiff  is  entitled  to  judgment  on 
this  short  and  intelligible  ground,  supported  by  sound  reason  and  by 
all  the  authorities,  that  the  defendant,  by  what  he  said  to  the  station- 


SECT.  TV.]  KIMBEBLY   V.    PATCHIN.  99 

master,  assented  to  the  transfer,  and  induced  the  plaintiff  to  believe 
that  he  would  hold  the  barley  to  his  order.  By  so  doing  he  altered  the 
position  of  the  plaintiff  towards  Maris.  The  plaintiff  might,  on  a  re- 
fusal b}'  the  defendant  to  hold  for  him,  have  applied  to  Maris,  and  he 
was  deprived  of  the  information  which  would  have  caused  him  to  have 
done  so.  The  defendant  is  therefore  precluded  from  denying  what  he 
said.  There  is  no  distinction  whatever  between  this  case  and  Woodley 
v.  Coventry,  2  H.  &  C.  1G4  ;  32  L.  J.  (Ex.)  185,  in  principle.  There 
the  party  actually  paid  the  money,  here  the  plaintiff  had  already  paid 
the  money  first ;  but  if  his  order  had  been  rejected  he  might  have  re- 
quired his  money  back. 

Hide  absolute  to  enter  a  verdict  for  the  plaintiff } 


KIMBERLY   et   al.    v.    PATCHIN. 
New  York  Court  of  Appeals,  June  Term,   1859. 

[Reported  in  19  New  York  Reports,  330.) 

Appeal  from  the  Supreme  Court.  Action  to  recover  the  value  of 
6,000  bushels  of  wheat,  alleged  to  have  been  the  property  of  the  plain- 
tiffs, and  to  have  been  converted  by  the  defendant.  Upon  the  trial 
before  Mr.  Justice  Greene,  at  the  Erie  Circuit,  it  was  proved  that  one 
Dickinson  had  in  warehouse,  at  Littlefort,  in  Wisconsin,  two  piles  of 
wheat,  amounting  to  6,249  bushels.  John  Shuttleworth  proposed  to 
purchase  6,000  bushels  of  wheat.  Upon  being  shown  the  piles,  he  ex- 
pressed a  doubt  whether  they  contained  that  quantity.  Dickinson 
declared  his  opinion  that  they  did,  and  agreed  to  make  up  the  quantity 
if  they  fell  short.  A  sale  was  then  made  at  seventy  cents  per  bushel, 
Dickinson  signing  and  delivering  to  Shuttleworth  a  memorandum,  as 
follows :  — 

Littlefotct.  February  17.  1^4^ 

John  Shuttleworth                                     Bought  of  D.  O.  Dickinson 
6,000  bushels  of  wheat,  delivered  on  board.  To  cents  .     .     .  84.200 
Received  his  draft  upon  John  Shuttleworth,  of  Buf- 
falo, for 82.100 

To  remit  me 1,600 

Five  drafts  of  8100  each 500 

4.200 

D.  O.  Dickixsox. 

1  "  At  present  I  do  not  venture  to  differ  from  Knights  '•.  Wiffen  ;  I  understand 
that  the  learned  judges  construed  a  certain  statement  as  having  not  merelyits  ordi- 
nary meaning,  but  also  a  mercantile  meaning,  and  they  were  of  opinion  thai  the  mer- 
cantile meaning  of  the  statement  was  that  the  defendant  had  sold  the  goods  separated 
from  other  goods  and  held  them  for  the  benefit  of  the  plaintiff.  I  c  mfess  it  s.'vn^  to 
in.'  that  in  that  case  two  well-known  doctrines  were  mixed  up.  the  doctrine  of  estoppel, 

and  the  doctrine  of  attornment   by  a  warehouseman  who    has  g 1<  in  his  hands.*' 

A/  Brett,  L.  J.  in  Simon  v.  Anglo-American  Telegraph  Co.  5  (,>.  B.  D.  1SS,  212. 


100  KIMBERLY   V.   PATCHIN.  [CHAP.  II. 

He  also  signed  and  delivered  to  Shuttleworth,  this  paper,  viz. :  — 

Littlefort,  February  18,  1S48. 

6.000  bushels  wheat. 

Received  in  store  6,000  bushels  of  wheat,  subject  to  the  order  of  John 
Shuttleworth,  free  of  all  charges,  on  board.  D.  O.  Dickinson. 

The  wheat  was  left  undisturbed  in  the  warehouse.  Shuttleworth 
sold  the  wheat  to  the  defendant,  assigning  to  him  the  bill  of  sale  and 
warehouse  receipt.  Dickinson  shortly  afterwards  sold  the  whole 
quantity  of  wheat  in  the  two  piles  to  a  person  under  whom  the  plain- 
tiffs derived  title.  The  defendant  having  obtained  the  possession  of 
the  wheat,  this  action  was  brought.  The  judge,  under  exception  by 
the  defendant,  directed  a  verdict  for  the  plaintiffs,  which  was  rendered, 
and  the  judgment  thereon  having  been  affirmed  at  General  Term,  in  the 
eighth  district,  the  defendant  appealed  to  this  court. 

John  H.  Reynolds,  for  the  appellant. 

John  L.  Talcott,  for  the  respondents. 

Comstock,  J.  Both  parties  trace  their  title  to  the  wheat  in  con- 
troversy to  D.  O.  Dickinson,  who  was  the  former  owner,  and  held  it  in 
store  at  Littlefort,  Wisconsin.  The  defendant  claims  through  a  sale, 
made  by  Dickinson  to  one  Shuttleworth  on  the  18th  of  February, 
1848.  if  that  sale  was  effectual  to  pass  the  title,  it  is  not  now  pre- 
tended that  there  is  any  ground  on  which  the  plaintiffs  can  recover  in 
this  suit.  The  sale  to  the  person  under  whom  they  claim,  was  about 
two  and  a  half  months  junior  in  point  of  time. 

The  sale  to  Shuttleworth  was  by  a  writing  in  the  form  of  a  present 
transfer  of  6,000  bushels  of  wheat,  at  seventy  cents  per  bushel.  No 
manual  delivery  was  then  made,  but  instead  thereof  the  vendor  exe- 
cuted and  delivered  to  the  vendee  another  instrument,  declaring  that 
he  had  received  in  store  the  0,000  bushels  subject  to  the  vendee's 
order;  of  the  price  82,600  was  paid  down,  and  the  residue  81,600 
which  was  to  be  paid  at  a  future  day,  the  purchaser  afterwards  offered 
to  pay,  according  to  the  agreement.  So  far  the  contract  had  all  the 
requisites  of  a  perfect  sale.  The  sum  to  be  paid  by  the  purchaser  was 
ascertained,  because  the  number  of  bushels  and  the  price  per  bushel 
were  specified  in  the  contract.  Although  the  article  was  not  delivered 
into  the  actual  possession  of  the  purchaser,  yet  the  seller,  by  the  plain 
terms  of  his  agreement,  constituted  himself  the  bailee,  and  henceforth 
stood  in  that  relation  to  the  purchaser  and  to  the  property.  That  was 
equal  in  its  results  to  the  most  formal  delivery,  and  no  argument  is  re- 
quired to  show  that  the  title  was  completely  divested,  unless  a  difficulty 
exists  yet  to  be  considered. 

The  quantity  of  wheat  in  store  to  which  the  contract  related  was 

estimated  by  the  parties  at  about  6.000  bushels.     But  subsequently, 

r  Dickinson  made  another  sale  of  the  same    wheat   to   the    party 

under  whom  the  plaintiffs  claim,  it  appeared  on  measurement  that  the 

number  of  bushels  was  6,249,  being  an  excess  of  249  bushels.     When 


SECT.  IV.]  KIMBERLY   V.    PATC11IN.  101 

Shuttlewovth  bought  the  6,000  bushels,  that  quantity  was  mixed  in 
tin'  storehouse  with  the  exeess,  and  no  measurement  or  separation  was 
made.  The  sale  was  not  in  bulk,  but  precisely  of  the  0,000  bushels. 
On  this  ground  it  is  claimed,  on  the  part  of  the  plaintiffs,  that  in  legal 
effect  tin;  contract  was  executory,  in  other  words  a  mere  agreement  to 
sell  and  deliver  the  specified  quantity,  so  that  no  title  passed  by  the 
transaction.  It  is  not  denied,  however,  nor  does  it  admit  of  denial, 
that  the  parties  intended  a  transfer  of  the  title.  The  argument  is,  and 
it  is  the  only  one  which  is  even  plausible,  that  the  law  overrules  that 
intention,  although  expressed  in  plain  written  language,  entirely  appro- 
priate to  the  purpose. 

It  is  a  rule  asserted  in  many  legal  authorities,  but  which  may  be 
quite  as  fitly  called  a  rule  of  reason  and  logic  as  of  law,  that  in  order 
to  an  executed  sale,  so  as  to  transfer  a  title  from  one  party  to  another, 
the  thing  sold  must  be  ascertained.  This  is  a  self-evident  truth,  when 
applied  to  those  subjects  of  property  which  are  distinguishable  by  their 
physical  attributes  from  all  other  things,  and  therefore,  are  capable  of 
exact  identification.  No  person  can  be  said  to  own  a  horse  or  a  pic- 
ture, unless  he  is  able  to  identify  the  chattel  or  specify  what  horse  or 
what  picture  it  is  that  belongs  to  him.  It  is  not  only  legally,  but 
logically,  impossible  to  hold  property  in  such  things,  unless  they  are 
ascertained  and  distinguished  from  all  other  things;  and  this,  I  ap- 
prehend, is  the  foundation  of  the  rule  that,  on  a  sale  of  chattels,  in 
order  to  pass  the  title,  the  articles  must,  if  not  delivered,  be  designated, 
so  that  possession  can  be  taken  by  the  purchaser  without  any  further 
act  on  the  part  of  the  seller. 

But  property  can  be  acquired  and  held  in  man}*  things  which  are 
incapable  of  such  an  identification.  Articles  of  this  nature  are  sold, 
not  by  a  description  which  refers  to  and  distinguishes  the  particular 
thing,  but  in  quantities,  which  are  ascertained  by  weight,  measure,  or 
count;  the  constituent  parts  which  make  up  the  mass  being  undis- 
tinguishable  from  each  other  by  an}-  physical  difference  in  size,  shape, 
texture,  or  quality.  Of  this  nature  are  wine,  oil,  wheat,  and  the  other 
cereal  grains,  and  the  flour  manufactured  from  them.  These  can  be 
identified  only  in  masses  or  quantities,  and  in  that  mode,  therefore, 
they  are  viewed  in  the  contracts  and  dealings  of  men.  In  respect  to 
such  things,  the  rule  above  mentioned  must  be  applied  according  to 
the  nature  of  the  subject.  In  an  executed  and  perfect  sale,  the  things 
sold,  it  is  true,  must  be  ascertained.  Rut  as  it  is  not  possible  in  reason 
and  philosophy  to  identify  each  constituent  particle  composing  a  quan- 
tity, so  the  law  does  not  require  such  an  identification.  Where  the 
quantity  and  the  general  mass  from  which  it  is  to  be  taken  are  specified, 
the  subject  of  the  contract  is  thus  ascertained,  and  it  becomes  a  possi- 
ble result  for  the  title  to  pass,  if  the  sale  is  complete  in  all  its  other 
circumstances.  An  actual  delivery  indeed  cannot  be  made  unless  the 
whole  is  transferred  to  the  possession  of  the  purchaser,  or  unless  the 
particular  quantity  sold  is  separated  from    the    residue.       But   actual 


102  KIMBERLY   V.    PATCHIN.  [CHAP.  II. 

deliver}'  is  not  indispensable  in  an}-  case  in  order  to  pass  a  title,  if  the 
thing  to  be  delivered  is  ascertained,  if  the  price  is  paid  or  a  credit 
given,  and  if  nothing  further  remains  to  be  done  in  regard  to  it. 

It  appears  to  me  that  a  very  simple  and  elementary  inquiry  lies  nt 
the  foundation  of  the  present  case.  A  quantity  of  wheat  being  in 
store,  is  it  possible  in  reason  and  in  law  for  one  man  to  own  a  given 
portion  of  it  and  for  another  man  to  own  the  residue  without  a  sepa- 
ration of  the  parts?  To  bring  the  inquiry  to  the  facts  of  the  case:  in 
the  storehouse  of  Dickinson  there  was  a  quantity  not  precisely  known. 
In  any  conceivable  circumstances  could  Shuttleworth  become  owner  of 
G,000  bushels,  and  Dickinson  *of  the  residue,  which  turned  out  to  be 
249  bushels,  without  the  portion  of  either  being  divided  from  the 
other?  The  answer  to  this  inquiry  is  plain.  Suppose  a  third  person, 
being  the  prior  owner  of  the  whole,  had  given  to  S.  a  bill  of  sale  of 
6,000  bushels,  and  then  one  to  D.  for  the  residue  more  or  less,  intend- 
ing to  pass  to  each  the  title,  and  expressing  that  intention  in  plain 
words,  what  would  have  been  the  result?  The  former  owner  most 
certainly  would  have  parted  with  all  his  title.  If,  then,  the  two  pur- 
chasers did  not  acquire  it,  no  one  could  own  the  wheat  and  the  title 
would  be  lost.  This  would  be  an  absurdity.  But  if  the  parties  thus 
purchasing  could  and  would  be  the  owners,  how  would  they  hold  it  ? 
Plainly  according  to  their  contracts.  One  would  be  entitled  to  6,000 
bushels,  and  the  other  to  what  remained  after  that  quantity  was  sub- 
tracted. 

Again  suppose,  Dickinson  having  in  store  and  owning  249  bushels, 
Shuttleworth  had  deposited  with  him  6,000  bushels  for  storage  merely, 
both  parties  agreeing  that  the  quantities  might  be  mixed.  This  would 
be  a  case  of  confusion  of  property  where  neither  would  lose  his  title. 
In  the  law  of  bailments  it  is  entirely  settled  that  S.,  being  the  bailor  of 
the  6,000  bushels,  would  lose  nothing  by  the  mixture,  and,  it  being  done 
by  consent,  it  is  also  clear  that  the  bailee  would  lose  nothing.  Story 
on  Bailments,  §  40  ;  2  Bl.  Com.  405. 

These  and  other  illustrations  which  might  be  suggested,  demonstrate 
the  possibility  of  a  divided  ownership  in  the  6,249  bushels  of  wheat. 
If,  then,  the  law  admits  that  the  property,  while  in  mass,  could  exist 
under  that  condition,  it  was  plainly  competent  for  the  parties  to  the 
sale  in  question,  so  to  deal  with  each  other  as  to  effectuate  that  result. 
One  of  them  being  the  owner  of  the  whole,  he  could  stipulate  and 
agree  that  the  other  should  thenceforth  own  G,000  bushels  without  a 
separation  from  the  residue.  And  this  I  think  is  precisely  what  was 
(lone.  The  6,000  bushels  might  have  been  measured  and  delivered  to 
the  purchaser,  and  then  the  same  wheat  might  have  been  redelivered 
to  the  seller  under  a  contract  of  bailment.  In  that  case  the  seller 
would  have  given  his  storehouse  receipt  in  the  very  terms  of  the  one 
which  he  actually  gave;  and  he  might,  moreover,  have  mixed  the 
wheat  thus  redelivered  with  his  own,  thereby  reducing  the  quantity 
sold  and  the  quantity  unsold  again  to  one  common  mass.     Now  the 


SECT.  IV.]  KIMBERLY   V.    PATCHIN.  103 

contract  of  sale  and  of  bailment,  both  made  at  the  same  time,  produced 
this  very  result.  The  formalities  of  measurement  and  delivery  pursuant 
to  the  sale,  and  of  redelivery  according  to  the  bailment  —  resulting 
in  the  same  mixture  as  before  —  most  assuredly  were  not  necessary  in 
order  to  pass  the  title,  because  these  formalities  would  leave  the  prop- 
erty in  the  very  same  condition  under  which  it  was  in  fact  left ;  that 
is  to  say,  in  the  actual  custody  of  the  vendor,  and  blended  together  in  a 
common  mass.  Those  formal  and  ceremonial  acts  were  dispensed  with 
by  the  contract  of  the  parties.  They  went  directly  to  the  result  with- 
out the  performance  of  any  useless  ceremonies,  and  it  would  be  strange, 
indeed,  if  the  law  denied  their  power  to  do  so. 

There  are  in  the  books  a  considerable  number  of  cases  having  a  real 
or   some    apparent    bearing  upon    the    question    under   consideration. 
Some  of  them  very  unequivocally  support  the  defendant's  title  under 
the  sale  to  Shuttleworth.      A  few  only  of  these   will    be    cited.       In 
Whitehouse  v.  Frost,  12  East,  614,  the  vendors  owned  forty  tons  of 
oil  secured  in  one  cistern,  and  they  sold  ten  tons  out  of  the  forty,  but 
the  quantity  sold  was  not  measured  or  delivered.     The  purchaser  sold 
the  same  ten  tons  to  another  person,  and  gave  a  written  order  on  the 
original  vendors,  which,  on  being  presented,  they  accepted,  by  writing 
the  word  "  accepted"  on    the    face  of  the   order,  and   signing    their 
names.       It  was  held  by  the  English  Common    Pleas    that    the    title 
passed;  considerable  stress  being  laid  on  the  acceptance  of  the  order, 
which,  it  was  said,  placed  the  vendors  in  the  relation  of  bailees  to  the 
quantity  sold.     This  was  in  1810.     In  the  following  year  the  case  of 
Jackson  u.  Anderson,  4  Taunt.  24,  was  decided  in  the  King's  Bench. 
That  was  an  action  of  trover  for  1,960  pieces  of  coin  called  Spanish 
dollars.     Mr.  Fielding,  at  Buenos  Ayres,  remitted  to   Laycock   &  Co., 
at  London,  $4,700,  and  advised  the  plaintiffs  that  1,960  of  the  number 
were  designed  for  them  in  payment  for  goods  bought  of  them.     Lay- 
cock  &  Co.  received  the  4,700  pieces,  and  pledged  the  whole  of  them 
to  the  defendant,  who  sold  them  to  the  Bank 'of  England.     It  was  held  : 
1.  That  the  letter  of  advice  was  a  sufficient  appropriation  of  81.960  to 
the  plaintiffs.     2.  That  the  plaintiffs  and  defendant  did   not  become 
joint-tenants. or  tenants  in  common  of  the  dollars.     3.  That  although 
no  specific  dollars  were  separated  from  the  residue   for  the  plaintiffs, 
yet  as  the  defendant  had  converted  the  whole,  trover  would  lie  for  the 
plaintiffs' share.     Of  course  the  action  in  its  nature  directly  involved 
the  plaintiffs'  title,  and  it  was  held  that  the  sale  or  appropriation  of  a 
part    without    any    separation    was   a    perfect   sale.       In    Pleasants    y. 
Pendleton,  6  Band.  4  73,  the  sale  (omitting  immaterial  circumstances) 
was  of  119  out  of  123  barrels  of  flour,  situated  in  a  warehouse,  all  of 
the  same  brand  and  quality.      It  was  held  by  the  Virginia  Court  of 
Appeals,  upon  very  elaborate  consideration,  and  after  a  review  of  all 
the  cases,  that  the  title  was  transferred  by  the  sale.     See  also  Damon 
'••  Osborn,  1    Tick.  4  77;  Crofoot   v.  Bennett,   2  Comst.  258.     In  the 
last  mentioned,  which  was  decided  in  this  court,  the  sale  was  of  43,000 


104  KIMBEKLY    V.    PATCHIN.  [CHAP.  II. 

bricks  in  an  unfinished  kiln  containing  a  larger  quantity.  A  formal 
possession  of  the  whole  brick-yard  was  taken  by  the  purchaser.  It 
was  held  that  he  acquired  title  to  the  43,000,  although  no  separation 
was  made.  In  the  opinion  of  Judge  Strong,  the  case  was  made  to  turn 
mainly  on  a  supposed  delivery  of  the  whole  quantity.  But,  with 
deference,  that  circumstance  does  not  appear  to  me  to  have  been  the 
material  one,  inasmuch  as  all  the  bricks  confessedly  were  not  sold. 
The  delivery  therefore,  did  not  make  the  sale,  and  if  part  could  not 
be  sold  without  being  separated,  I  do  not  see  how  a  formal  delivery  of 
tiie  whole  brick-yard  could  cure  the  difficulty.  The  learned  judge 
speaks  of  the  transaction  as  a  delivery  of  the  whole  quantity  "with 
the  privilege  of  selection."  But  assuming,  as  he  did,  that  the  want  of 
selection  or  separation  was  the  precise  difficulty  to  be  overcome,  it  is  not 
easy  to  see  how  a  privilege  to  select  could  change  the  title  before  the 
selection  was  actually  made.  The  case,  therefore,  it  seems  to  me,  can 
only  stand  on  the  ground  that  the  sale  was,  in  its  nature,  complete  ; 
the  formal  delivery  of  the  whole  being  doubtless  a  circumstance  en- 
titled to  weight  in  arriving  at  the  intention  of  the  parties.  The  case 
is,  in  short,  a  strong  authority  to  prove  that,  in  sales  by  weight,  meas- 
ure, or  count,  a  separation  of  the  part  sold  from  the  mass  is  not  in  all 
cases  a  fundamental  requisite. 

Referring  now  to  cases  where  it  has  been  held  that  sales  of  this 
general  nature  were  incomplete,  it  will  be  found  that  they  are  not 
essentially  and  necessarily  opposed  to  the  conclusion  that,  in  the 
instance  before  us,  the  title  was  changed.  In  White,  assignee,  &c,  v. 
Wilks,  5  Taunt.  176,  a  merchant  sold  twent}'  tons  of  oil  out  of  a 
stock  consisting  of  different  large  quantities  in  different  cisterns,  and 
at  various  warehouses.  The  note  of  sale  did  not  express  the  quality 
or  kind  of  oil  sold,  or  the  cistern  or  warehouse  from  which  it  was  to  be 
taken,  and  the  purchaser  did  not  even  know  where  the  particular  oil 
lay  which  was  to  satisfy  the  contract.  Very  clearly  the  title  could  not 
pass  upon  such  a  sale  ;  and  so  it  was  held,  although  the  seller  was 
entitled  by  the  contract  to  charge  tk  Is.  per  ton  per  week  rent,"  for 
keeping  the  oil.  A  very  different  question  would  have  been  presented 
if  the  cistern  from  which  the  twenty  tons  were  to  be  taken  had  been 
specified.  The  mass  and  quality  would  then  have  been  ascertained.  As 
it  was,  the  subject  of  the  contract  was  not  identified  in  any  manner. 
The  remarks  of  the  judge,  evidently  not  made  with  much  deliberation, 
must  be  construed  with  reference  to  the  particular  facts  of  the  case. 

In  Austen  v.  Craven,  4  Taunt.  644,  there  was  a  contract  to  sell 
L'i'O  hogsheads  of  sugar,  to  be  of  four  different  kinds  and  qualities 
which  were  specified.  It  did  not  appear  that  the  seller,  at  the  time  of 
the  contract,  had  the  sugar  on  hand,  or  any  part  of  it,  and  the  fact  was 
assumed  to  be  otherwise.  The  sale  was,  moreover,  at  so  much  per  cwt, 
requiring  that  the  sugar  should  be  weighed  in  order  to  ascertain 
the  price.  In  these  circumstances  the  case  was  considered  plainly  dis- 
tinguishable from   Whitehouse  v.  Frost,  supra,  and   it  was  held  that 


SECT.  IV.]  KIMBERLY   V.   PATCHIN.  105 

the  title  did  not  pass.  I  do  not  see  the  slightest  ground  for  question- 
ing the  decision,  although  perhaps  one  or  two  remarks  of  Chief  Justice 
Mansfield  are  capable  of  a  wider  application  than  the  facts  of  the  case 
would  justify. 

The  two  cases  last  mentioned  have  been  not  unfrequently  cited  in 
various  later  English  and  American  authorities,  which  need  not  be 
particularly  referred  to.  Some  of  these  authorities  may  suggest  a 
doubt  whether  the  title  passes  on  a  mere  sale  note  by  measure  or 
weight  out  of  a  larger  quantity  of  the  same  kind  and  quality,  there 
being  no  separation  and  no  other  circumstances  clearly  evincing  an 
intention  to  vest  the  title  in  the  purchaser.  It  is  unnecessary  now  to 
solve  that  doubt,  because  none  of  the  decisions  announce  the  extreme 
doctrine  that  where,  in  such  cases,  the  parties  expressly  declare  an 
intention  to  change  the  title,  there  is  any  legal  impossibility  in  the 
way  of  that  design.  Upon  a  simple  bill  of  sale  of  gallons  of  oil  or 
bushels  of  wheat,  mixed  with  an  ascertained  and  defined  larger  quantity, 
it  may  or  may  not  be  considered  that  the  parties  intend  that  the  portion 
sold  shall  be  measured  before  the  purchaser  becomes  invested  with  the 
title.  That  may  be  regarded  as  an  act  remaining  to  be  done,  in  which 
both  parties  have  a  right  to  participate.  But  it  is  surely  competent 
for  the  vendor  to  say  in  terms  that  he  waives  that  right,  and  that  the 
purchaser  shall  become  at  once  the  legal  owner  of  the  number  of  gal- 
lons or  bushels  embraced  in  the  sale.  If  he  cannot  say  this  effectually, 
then  the  reason  must  be  that  two  men  cannot  be  owners  of  separate 
quantities  or  proportions  of  an  undistinguishable  mass.  That  conclu- 
sion would  be  a  naked  absurdity,  and  I  have  shown  that  such  is  not 
the  law.  In  the  case  before  us  the  vendor  not  ojih*  executed  his  bill 
of  sale  professing  to  transfer  6,000  bushels  of  wheat,  but.  waiving  all 
further  acts  to  be  done,  in  order  to  complete  the  transaction,  he  ac- 
knowledged himself,  b}T  another  instrument,  to  hold  the  same  wheat 
in  store  as  the  bailee  thereof  for  the  purchaser.  If  his  obligations  from 
that  time  were  not  simply  and  precisely  those  of  a  bailee,  it  is  because 
the  law  would  not  suffer  him  to  stand  in  that  relation  to  the  property 
for  the  reason  that  it  was  mixed  with  his  own.  But  no  one  will  contend 
for  such  a  doctrine. 

I  repeat  it  is  unnecessary  to  refer  to  all  the  cases,  or  to  determine 
between  such  as  may  appear  to  be  in  conflict  with  each  other.  None 
of  them  go  to  the  extent  of  holding  that  a  man  cannot,  if  he  wishes 
and  intends  so  to  do,  make  a  perfect  sale  of  part  of  a  quantity  without 
actual  separation,  where  the  mass  is  ascertained  by  the  contract  and 
all  parts  are  of  the  same  value  and  undistinguishable  from  each  other. 

One  of  the  cases,  however,  not  yet  cited,  deserves  a  brief  consider- 
ation, because  it  was  determined  in  this  court,  and  has  been  much 
relied  on  by  the  plaintiffs'  counsel.  I  refer  to  Gardiner  v.  Suydam,  3 
Seld.  357.  The  owner  of  flour  delivered  it  in  various  parcels  to  a 
warehouseman,  and  from  time  to  time  took  receipts  from  him.  One 
of  these  receipts  was  held  by  the  defendants  and  others  by  the  plain- 


106  KLMBERLY   V.    PATCHIN.  [CHAP.  II. 

tiff's,  both  parties  having  accepted  and  paid  drafts  on  the  faith  thereof. 
The  defendants'  receipt  was  the  first  in  point  of  time,  and  was  for  536 
barrels,  being  given  at  a  time  when  in  fact  there  were  but  201  barrels 
in  the  warehouse,  so  that  it  covered  335  more  than  were  then  on  hand. 
But  other  quantities  were  subsequently  delivered  at  the  warehouse,  all 
of  the  same  kind  and  quality,  and  the  defendants,  in  fact,  received  by 
shipment  to  them,  500  barrels.  For  the  conversion  of  this  quantity 
they  were  sued  b\'  the  plaintiffs,  who  had  failed  to  receive  the  flour 
which  their  receipts  called  for.  It  cannot  fail  to  be  seen  from  this 
statement  that  the  defendants,  having  the  first  receipt  and  receiving 
no  more  flour  than  it  specified,  were  entitled  to  judgment  by  reason  of 
the  priority  of  their  title  ;  and  this  ground  of  decision  is  very  clearly 
stated  in  the  opinion  of  the  chief  judge.  He  thought  if  the  transfer 
of  the  receipts  could  pass  the  title  to  the  flour,  notwithstanding  the 
mixture  of  all  the  quantities  together,  that  the  one  held  by  the  defend- 
ants entitled  them  not  only  to  the  201  barrels  in  store  when  it  was 
given,  but  also  to  so  man}-  barrels  delivered  in  store  afterwards  as 
were  necessary  to  make  up  their  number.  This  view,  which  appears 
to  me  correct,  was  fatal  to  the  plaintiffs'  case.  But  in  another  aspect 
of  the  controversy,  the  learned  chief  judge  was  of  opinion  that  the 
transfer  to  the  plaintiffs  of  the  receipts  held  by  them  passed  no  title, 
on  the  ground  that  the  quantities  which  the}-  respectively  covered 
were  all  mixed  together  in  the  storehouse.  Assuming  the  correctness 
of  that  view  —  which  I  am  constrained  to  question  —  the  case  is  still 
unlike  the  present  one.  The  transfer  of  a  warehouseman's  receipt, 
given  to  the  owner,  was  certainh'  no  more  than  a  simple  sale  note  of 
the  specified  number  ,of  barrels  ;  and  where,  in  such  cases,  that  is  the 
whole  transaction  between  vendor  and  vendee  I  have  alread}'  ad- 
mitted a  doubt,  suggested  b}'  conflicting  cases,  whether  the  title  passes. 
If  the  owner  of  the  flour  had  held  it  in  his  own  warehouse,  and  had 
not  only  given  a  bill  of  sale  of  a  portion  of  it,  but  had  himself  executed 
to  the  purchaser  another  instrument  declaring  that  he  held  the  quan- 
tity sold  as  bailee  and  subject  to  order,  then  the  case  would  have 
resembled  the  one  now  to  be  determined. 

We  are  of  opinion,  therefore,  both  upon  authority  and  clearly  upon 
the  principle  and  reason  of  the  thing,  that  the  defendant,  under  the 
sale  to  Shuttleworth,  acquired  a  perfect  title  to  the  C000  bushels 
of  wheat.  Of  that  quantity  he  took  possession  at  Buffalo,  by  a  writ 
of  replevin  against  the  master  of  the  vessel  in  which  the  whole  had 
been  transported  to  that  place.  For  that  taking  the  suit  was  brought, 
and  it,  results  that  the  plaintiff  cannot  recover.  It  is  unnecessary  to 
decide!  whether  the  parties  to  the  original  sale  became  tenants  in  com- 
mon. If  a  tenancy  in  common  arises  in  such  cases,  it  must  be  with 
some  peculiar  incidents  not  usually  belonging  to  that  species  of  owner- 
ship. I  think  each  party  would  have  the  right  of  severing  the  tenancy 
by  his  own  act  ;  that  is,  the  right  of  taking  the  portion  of  the  mass 
which  belonged  to  him,  being  accountable  only  if  he  invaded  the  quan- 


SECT.  IV.]  FOOT    V.    MARSH.  107 

tity  which  belonged  to  the  other.  But  assuming  that  the  case  is  one 
of  strict  tenancy  in  common,  the  defendant  became  the  owner  of  6,000 
and  the  plaintiffs  of  24'J  parts  of  the  whole.  As  neither  could  main- 
tain an  action  against  the  other  for  taking  possession  merely  of  the 
whole,  more  clearly  he  cannot  if  the  other  takes  only  the  quantity 
which  belongs  to  him. 

The  judgment  must  be  reversed  and  a  new  trial  granted. 

Gray  and  Grover,  JJ.,  dissented  ;  Strong,  J.,  expressed  himself  as 
inclined  to  concur,  if  necessary  to  a  decision,  but  it  being  unnecessary, 
he  reserved  his  judgment. 

Judgment  reversed  and  new  trial  ordered. 


FOOT   v.   MARSH. 

New7  York  Court  of  Appeals,  September  18,  1872,  January  Term, 

1873. 

[Reported  in  51  New  York,  288.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  in 
the  fifth  judicial  district,  reversing  judgment  in  favor  of  plaintiff, 
entered  upon  a  verdict,  and  granting  a  new  trial. 

This  action  was  brought  to  recover  damages  for  the  alleged  breach 
of  a  contract  for  the  sale  and  delivery  of  a  quantity  of  oil.  On  the 
trial  it  appeared  that  a  party  in  Syracuse  having  about  150  barrels  of 
oil  consigned  to  him  for  sale,  forty-six  of  which  was  known  as  Murray 
oil,  forty-seven  as  Buffalo  and  Erie  oil,  thirty-six  as  Lemon  oil.  and 
twenty-one  barrels  of  oil  marked  V.  B.  That  the  Murray  oil  had  pre- 
ference to  the  other  oils  on  account  of  its  reputation,  and  was  worth 
two  cents  per  gallon  more  than  the  Buffalo  and  Erie  oil,  or  the  oil  iu 
barrels  marked  V.  B.,  and  that  the  thirty-six  barrels  known  as  Lemon 
oil  were  inferior  to  either  of  the  other  descriptions,  and  that  a  portion  of 
the  entire  quantity  being  then  iu  the  cellar  of  the  warehouse  of  Thomp- 
son, Gage  &  Co.,  and  the  residue  in  the  cellar  of  the  warehouse  of  a 
Mr.  Davis  of  that  place,  [the  consignee]  proposed  to  sell  them  to  the  de- 
fendants at  sixteen  cents  per  gallon.  The  defendants,  not  caring  to 
purchase  the  whole,  replied  that  if  they  could  sell  a  portion,  and  re- 
tain a  portion,  they  would  buy.  The  consignee  thereupon  gave  to  one 
of  the  defendants  a  sample  of  oil,  which,  as  the  consignee  at  first  testi- 
fied, was  a  poor  specimen  of  the  most  inferior  oil,  but  upon  cross- 
examination  it  appeared  to  have  been  taken  from  the  Buffalo  and  Erie 
oil.  witli  which  the  defendants  went  to  the  plaintiffs'  place  of  business 
at  Rome,  Oneida  County,  and  exhibited  to  them  the  sample  ;  told  them 
where  the  oil  was,  anil  proposed  to  sell  to  them  a  portion  of  the  whole 
1  JO  barrels.     An  agreement  was  finally  concluded  for  a  sale  to  the 


108  FOOT   V.    MARSH.  [CHAP.  II. 

plaintiffs  of  100  barrels  of  oil,  by  the  sample  then  exhibited,  for  which 
the  plaintiffs  were  to  give  their  note  at  three  months  ;  and  as  the  bar- 
reds  contained  different  quantities,  in  order  to  ascertain  the  amount  for 
which  the  note  should  be  given  it  was  agreed  that  each  barrel  should 
contain  an  average  of  forty  gallons,  in  all  4,000  gallons,  and  that  they 
should  be  subject  to  twenty  shillings  storage  per  month  until  called 
for.  There  was  upon  the  trial  a  conflict  in  the  parol  evidence  as  to 
whether  it  was  not  a  part  of  the  agreement  for  the  purchase  and  sale 
of  the  oil  that  the  defendants,  and  not  the  plaintiffs,  should  risk  the 
leakage.  There  was  also  a  conflict  in  the  evidence  as  to  whether  it 
was  not  a  part  of  the  agreement  that  the  defendants  should  set  apart 
100  barrels  containing  an  average  of  forty  gallons  to  the  barrel,  and 
as  to  whether  they  did  not  so  set  it  apart  in  the  place  of  its  storage. 
It  also  appeared  that  after  the  parties  had  concluded  all  negotiations 
and  come  to  an  agreement  for  the  sale  and  purchase  of  the  oil,  the 
plaintiffs  executed  and  delivered  to  the  defendants  their  note  for  the 
$870  (the  amount  agreed  upon),  and  the  defendants  executed  and  de- 
livered a  bdl  of  sale,  as  follows  :  — 

N.  B.  Foot  &  Co.  bought  of  Marsh,  Delaye  &  Rogers,  100  bar- 
rels, at  twelve  shillings,  S150  ;  4,000  gallons  of  oil  at  eighteen  cents, 
§720=6870.  Received  payment  by  note  at  three  months  from  June  7, 
1SG2. 

Marsh,   Delate   &  Rogers. 

The  above  oil  is  to  be  delivered  when  called  for,  subject  to 
twenty  shillings  per  month  storage,  and  the  quality  of  the  oil  is  to  be 
like  the  sample  delivered.     Marsh,  Delaye  &  Rogers. 

Defendants  thereupon  accepted  the  offer  previously  made  by  the 
consignee  for  the  sale  of  the  whole  150  barrels.  When  the  plaintiffs' 
note  matured  they  paid  it,  and  afterward,  on  the  11th  of  November 
following,  called  upon  the  defendants  for  a  delivery  of  the  oil,  and 
were  shown  100  barrels  which  contained  in  all  but  1,821  gallons, 
worth  from  five  to  ten  cents  per  gallon  less  than  the  sample  by  which 
they  purchased.  The  evidence  tended  to  show  that  the  loss  occurred 
by  leakage  from  the  barrels  in  which  it  was  stored,  and  that  the  de- 
preciation in  quality  was  largely  if  not  entirely  attributable  to  the 
same  cause.  It  also  appeared  that  the  remaining  2,171)  gallons, 
if  equal  to  the  sample,  would,  at  the  time  the  plaintiffs  called  for  a 
delivery  of  the  oil,  have  been  worth  81,198.45.  The  defendants' 
counsel  objected  to  proving  a  deficiency,  and,  after  the  evidence 
closed,  insisted  that  by  the  writing  the  contract  for  its  sale  was  not 
executory,  but  an  executed  contract,  and  in  substance,  if  any  loss  was 
thereafter  occasioned  by  leakage,  it  was  the  plaintiffs',  and  not  the 
defendants'  loss,  mid  hence,  that  there  was  no  question  for  the  jury. 
But  the  court  ruled  otherwise,  and  the  defendants  excepted. 

Ill    court  charged  the  jury,  that  if  from  the  evidence  they  should 
find  that  it  was  agreed  between  the  parties  that  the  defendants  should 


SECT.  IV.]  FOOT   V.   MARSH.  109 

set  apart  100  barrels  of  oil,  averaging  forty  gallons  to  the  barrel,  of  a 
quality  equal  to  the  sample,  and  that  they  did  set  apart  that  number 
of  barrels  containing  that  average  quantity,  and  of  a  quality  equal 
to  the  sample  furnished,  that  from  thenceforth  the  oil  was  at  the  plain- 
tiffs' risk,  and  they  could  not  recover.  But  if,  on  the  contrary,  there 
was  no  such  agreement  made  or  authority  given  the  defendants  to  set 
apart  the  oil,  that  then  the  contract  became,  from  its  terms,  a  contract 
to  deliver  4,000  gallons  of  oil  when  called  for,  and  that  the  defendants 
were  bound  to  have  it  on  hand  when  called  for.  To  this  part  of  the 
charge  the  defendants  excepted.  The  court  further  charged,  that  if 
there  was  no  authority  given  the  defendants  to  set  apart  the  oil,  there 
was  a  deficiency  for  which  the  plaintiffs  were  entitled  to  recover  81.1  Its.  1 5 
with  8273. 10  interest  from  the  time  of  demand,  making  in  all,  $1,471.55. 
To  so  much  of  the  charge  as  instructed  the  jury  to  allow  interest,  the 
defendants  excepted.  The  jury  rendered  a  verdict  for  $800,  and 
thereupon  the  defendants  upon  the  minutes  moved  for  a  new  trial, 
which  was  denied,  and  judgment  ordered  and  entered  upon  the 
verdict. 

D.  M.  K.  Johnson,  for  the  appellants. 

J.  D.  Kernan,  for  the  respondents. 

Gray,  C.  The  principal  question  presented  for  our  consideration 
arises  upon  the  defendants'  exception  to  that  portion  of  the  charge 
given  by  the  judge  to  the  jury,  in  which  he  stated,  in  substance,  that 
if  no  agreement  was  made  or  authority  given  to  the  defendants  to  set 
apart  for  the  plaintiffs  the  oil  described  in  the  contract,  that  then  the 
contract,  from  its  terms,  became  a  contract  to  deliver  4,000  gallons  of 
oil  when  called  for,  and  that  the  defendants,  in  order  to  comply  with 
the  call,  were  bound  to  have  that  quantity  on  hand  whenever  the  call 
should  be  made.  This  case  is  by  the  defendants  likened  to  the  case 
of  Kimberly  and  others  v.  Patchin,  19  N.  Y.  330,  and  the  ground 
upon  which  this  portion  of  the  charge  is  claimed  to  be  erroneous  is, 
that  the  contract,  when  read  by  the  light  of  the  circumstances  sur- 
rounding it,  is  in  principle,  like  the  contract  in  that  case,  for  the  sale 
of  6,000  bushels  of  wheat,  parcel  of  6,249  bushels,  at  seventy  cents 
per  bushel,  of  which  no  separation  or  manual  delivery  was  made,  but 
as  a  substitute  for  a  manual  delivery,  and  to  constitute  the  contract 
for  its  sale  an  executed,  not  an  executory  contract,  the  vendor  gave  to 
the  purchaser  his  receipt  for  it,  agreeing  to  deliver  it  to  his  order,  free 
of  all  charges,  whereupon  the  vendor  was  held  to  have  constituted 
himself  the  bailee  of  the  wheat,  and  to  have  thenceforth  stood  in  that 
relation  to  the  purchaser  and  the  property  ;  to  render  the  contract  ef- 
fectual as  an  executed  contract  from  the  time  it  was  made,  the  pur- 
chaser must  have  been  invested  with  the  right,  after  demand,  to  take 
the  property.  This  was  a  right  the  defendants  at  the  time  of  making 
the  sale  had  no  power  to  confer,  they  not  being  at  the  time  the  owners 
of  any  portion  of  it ;  nor  did  they,  in  the  place  of  a  manual  delivery, 
give  to  the  plaintiffs  their  receipt  for  it,  and  thus  attempt  to  constitute 


HO  FOOT   V.    MARSH.  [CHAP.  II. 

themselves  the  bailees  of  the  plaintiffs  and  of  the  oil,  as  did  the  ven- 
dor of  the  wheat  in  Kimberly  v.  Patchin.     If  the  150  barrels  of  oil,  of 
which  the  100  barrels  and  the  4,000  gallons  were  understood  to  be  a 
part,  were,  like  the  wheat,  all  of  the  same  quality,  so  that  nothing  but 
the  quantity,  without  reference  to  quality,  was  to  be  taken  from  the 
larger  amount,  the  extrinsic  facts  that  the  sale  was  at  a   profit   of 
only  two  cents  per  gallon,  and  the  risk  of  leakage  during  the  summer 
months,  so  largely  exceeded  the  profits  of  the  sale,  it  might  be  urged, 
with  more  plausibility  than  it  now  can,  that  the  agreement  of  the  de- 
fendants to  deliver  the  barrels  and  oil  when  called   for  was  like  the 
agreement  contained  in  the  receipt  in  Kimberly  v.  Patchin  to  deliver 
the  wheat  to  the  order  of  the  purchaser,    and  that  the  defendants 
should,  under  the  circumstances,  as  was  the  vendor  iu  that  case,  be 
regarded  as  the  bailees  of  the  plaintiffs.     But,  in  order  to  substitute 
an  arrangement  between  the  parties  for  a  manual  delivery  of  a  parcel 
of  property  mixed  with  an  ascertained  and  defined  larger  quantity,  it 
must  be  so  clearly  defined  that  the  purchaser  can  take  it,  or,  as  the 
assignee  of  the  purchaser  did  in  Kimberly  v.  Patchiu,  maintain  replevin 
for  it.     In  this  case  the  larger  quantity,  parcel  of  which  was  under- 
stood to  be  contracted  to  the  plaintiffs,  consisted  of  150  barrels  con- 
taining  three   different   qualities   of    oil,   but    sixty-eight    of    which 
(forty-seven  of   the    Buffalo    and   Erie  oil,    and   twenty-one    barrels 
marked  V.  B.)  corresponded  with  the  sample  by  which  the  100  barrels 
were   sold.     The  residue,    forty-six   barrels  of   the   Murray  oil,   was 
superior  to  the  sample  ;  and  thirty-six,  known  as  the  Lemon  oil,  were 
inferior  to  the  sample.     The  plaintiffs  would  not  have  the  right  to  take 
the  Murray  or  superior  oil,  and  could  not  be  compelled  to  take  the 
Lemon  or  inferior  oil.     And  if  the  sample  was,  as  the  witness  at  one 
time  stated,  a  poor  sample  of  the  most  inferior  oil,  then  but  thirty-six 
barrels  of  that  description,  containing  less  than  1,500  gallons,  could 
have  been  selected  from  the  whole  quantity,  and  hence  the  plaintiffs 
were  without  adequate  means  of  redress,  unless  by  action,  for  failing 
to  deliver  the  quantity  of  oil  sold  conforming  to  the  sample.     The 
fact  that  the  oil,  which  was  the  subject  of  the  sale,  was  understood 
by  the  plaintiffs  to  be  a  parcel  of  a  larger  quantity,  and  that  the  sale 
was  made 'at  a  profit  of  only  two  cents  per  gallon,  while  the  risk  of 
loss  by  leakage  and  evaporation  was  very  large,   are  circumstances 
Hint  would  gcTfar  to  prove  that  the  defendants  did  not  understand  the 
legal  import  of  the  writing  drawn  and  subscribed  by  them,  or  that 
they  were  overreached  by  the   plaintiffs,  who   suggested  their  terms 
after,  as  one  of  them  had  testified,  they  refused  to  purchase,  unless 
the  defendants  would  guarantee  them  against  leakage,  which  the  de- 
fendanta  refused  to  do.     But  as  no  question  was  raised  by  the  plead- 
in--;,  or  elsewhere,  as  to  a  reformation  of  the  contract,  we  must  regard 
it  as  expressing  the  intentions  of  the  parties  and  give  it  the  interpre- 
tation which,  under  the  circumstances,  its  language  plainly  imports. 
The  charge  was  more  favorable  to  the  defendants  than  a  fair  construe- 


SECT.  IV.]  SCUDDER   V.   WORSTER.  Ill 

tion  of  the  written  contract  warranted.  The  conversations,  out  of 
which  the  defendants  sought  to  establish  an  agreement  between  the 
parties  that  the  defendants  might  set  apart  the  100  barrels  of  oil  for 
the  plaintiffs,  as  well  as  the  conversations  as  to  the  guarantee  against 
loss  by  leakage,  were  all  prior  to  the  reduction  of  their  agreement  to 
writing,  ami  should  have  been  excluded  from  the  consideration  of  the 
jury,  leaving  the  writing  as  the  only  evidence  of  the  agreement  to  be 
interpreted  by  the  aid  of  extrinsic  facts.  No  error  was  committed 
in  the  instructions  to  allow  interest.  The  verdict  was  more  favorable 
to  the  defendants  than  the  charge  warranted  ;  of  that,  however,  they 
cannot,  upon  this  appeal,  complain. 

The  order  appealed  from  should  be  reversed. 

All  concur. 

Order  reversed. 


HARVEY   SCUDDER  v.   JOHN   WORSTER  and  Another. 

Supreme    Judicial    Court    of    Massachusetts,    November    Term, 

1853. 

[Reported  in  1 1  Cashing,  573.] 

This  was  an  action  of  replevin,  for  150  barrels  of  pork,  to  which  the 
defendants  pleaded  only  the  general  issue.  It  was  submitted  to  this 
court  on  an  agreed  statement  of  facts,  which,  so  far  as  necessary  to  a 
proper  understanding  of  the  points  involved,  sufficiently  appear  in  the 
opinion. 

II  A.  Scudder,  for  the  plaintiff. 

W.  G.  Russell,  for  the  defendants. 

Dewey,  J.1  ...  It  appears  from  the  facts  stated,  that  on  February 
10,  1850,  a  contract  was  made  by  the  defendants  with  Secomb,  Taylor, 
&  Company,  to  sell  them  250  barrels  of  pork  branded  "  Worcester  & 
Hart ;  "  that  a  bill  of  sale  of  the  pork  was  made  and  delivered  to  them, 
and  they  gave  the  defendants  their  negotiable  promissory  notes  of  hand 
therefor,  payable  in  six  months  ;  that  it  was  further  agreed  that  the 
pork  should  remain  in  defendants'  cellar  on  storage,  at  the  risk  and 
expense  of  the  purchasers;  that  Secomb,  Taylor,  &  Company,  on  the 
13th  of  May,  1850,  sold  100  barrels  of  the  pork  to  one  Lang,  who  re- 
ceived the  same  of  the  defendants  upon  the  order  of  Secomb,  Taylor, 
&  Company;  that  on  the  27th  of  May,  1850,  Secomb,  Tavlor,  &  Com- 
pany sold  the  plaintiff  150  barrels,  with  an  order  on  the  defendants 
therefor.  The  next  day  the  plaintiff  gave  notice  to  the  defendants  of 
the  purchase,  and  requested  them  to  hold  the  same  on  storage  for  him, 
to  which  the  defendants  assented.  On  the  25th  of  June,  Secomb.  Tay- 
lor, &  Company  became  insolvent,  and  on  the  same  day  the  plaintiff 

1  The  part  omitted  does  not  affect  the  merits  of  the  case. 


112  SCUDDER   V.    WORSTER.  [CHAP.  II. 

called  upon  the  defendants  for  the  purpose  of  receiving  the  150  barrels 
of  pork,  but  the  defendants  refused  to  allow  him  to  do  so.  On  the  next 
day  a  more  formal  demand,  accompanied  by  an  offer  to  pay  storage, 
w;is  made,  which  being  refused  by  the  defendants,  an  action  of  replevin 
was  instituted,  and  150  barrels  of  pork,  the  same  now  in  contro- 
versy, were  taken  and  removed  from  said  cellar,  and  delivered  to  the 
plaintiff. 

The  further  fact  is  stated  in  the  case,  and  it  is  this  which  raises  the 
question  of  property  in  the  plaintiff,  that  the  pork  bargained  and  sold 
in  the  manner  above  stated  was  in  the  cellar  of  the  defendants,  and  a 
parcel  of  a  larger  quality  of  the  same  brand,  and  also  with  some  of  a 
different  brand,  and  so  continued  parcel  of  a  larger  quantity  of  similar 
brand,  up  to  the  time  of  the  suing  out  of  the  plaintiff's  writ  of  replevin  : 
though  this  fact  was  not  at  the  time  of  the  sale  stated  to  the  purchasers, 
or  to  the  plaintiff  when  he  purchased  of  Secomb,  Taylor,  &  Company. 
Mad  these  250  barrels  of  pork  been  a  separate  parcel,  or  had  the  parties 
designated  them  by  any  visible  mark,  distinguishing  them  from  the 
residue  of  the  vendors'  stock  of  pork,  the  sale  would  clearly  have  been 
an  absolute  one,  and  the  property  would  at  once  have  passed  to  the 
purchaser.  There  was  nothing  required  to  have  been  done  but  this 
separation  from  the  general  mass  of  like  kind,  to  have  placed  the  sale 
beyond  all  question  or  doubt  as  to  its  validity. 

The  cases  cited  by  the  plaintiff's  counsel  fully  establish  the  position, 
that  what  was  done  in  this  ease  would  have  transferred  the  property  in 
the  pork,  if  the  sale  had  been  of  all  the  pork  in  the  cellar,  or  of  any 
entire  parcel  separated  from  the  residue,  or  if  the  250  barrels  had  some 
descriptive  mark  distinguishing  them  from  the  other  barrels  not  sold. 
The  difficulty  in  the  case  is,  in  maintaining  that  in  the  absence  of  each 
and  all  these  circumstances,  distinguishing  the  articles  sold,  the  particu- 
lar barrels  of  pork  selected  by  the  officer  from  the  larger  mass  when  he 
served  this  process,  were  the   property  of  the  plaintiff,  or  had   ever 
passed  to  him.     In  addition,  however,  to  the  numerous  cases  cited  to 
establish  the  general  principles  contended  for  on  the  part  of  the  plain- 
tiff, and  which  would  have  been  decisive,  if  it  had  been  a  sale  of  all  the 
pork  in  the  cellar,  or  a  particular  parcel,  or  certain  barrels  having  de- 
scriptive marks  which  would  enable  the  vendee  to  separate  his  own 
from   the  residue,  were  cited  several  more  immediately  bearing  upon 
the  present  case,  and  where  property  not  separable  has  been  held  to 
pass  to  the  vendee.     The  leading  case  relied  upon  is  that  of  Pleasants 
v.  Pendleton,  6  Rand.  473.     This  was  an  action  by  the  vendor  to  recover 
the  price  of  lilt  barrels  of  flour  sold  to  the  defendant.     No  other  objec- 
tion existed  to  the  validity  of  the  sale,  except  that  the  119  barrels  were 
a  parcel  of  123   barrels,  all  of  similar  kind,  in  the  same  warehouse. 
There  were  certain  brands  or  marks  on  the  entire   123  barrels.     The 
flour  was  destroyed  by  fire  while  on  storage,  and  the  vendee  refused  to 
pay  for  the  119,  upon  the  ground  that  the  sale  was  not  perfected  for 
want  of  separation  from  the  123  barrels.     The  court  refused  to  sustain 


SECT.  IV.]  SCUDDER   V.    WORSTER.  113 

the  defence,  and  gave  judgment  for  the  plaintiff.  In  reference  to  this 
case,  Grimke,  J.,  in  Woods  v.  McGee,  7  Ohio,  127,  says:  "  It  is  impos- 
sible to  divest  ourselves  of  the  impression  that  the  small  difference 
between  the  aggregate  mass  and  the  quantit}-  sold,  the  former  being 
123  barrels,  and  the  latter  119,  may  have  influenced  the  decision.  It 
was  a  hard  case,  and  hard  cases  make  shipwreck  of  principles." 

Jackson  v.  Anderson,  4  Taunt.  24,  was  an  action  of  trover  to  recover 
for  the  conversion  of  1,969  Spanish  dollars.  It  appeared  that  the 
amount  had  been  transmitted  to  a  consignee  for  the  use  of  the  plaintiff, 
but  they  were  in  a  parcel  of  $4,918,  all  of  which  came  into  the  hands 
of  the  defendant.  Among  other  points  raised  at  the  argument,  was 
this,  that  there  was  nothing  to  distinguish  the  $1,969  from  the  entire 
mass  ;  that  there  had  been  no  separation,  and  of  course  the  plaintiff 
had  no  property  in  any  particular  portion  of  the  money.  The  point,  it 
seems,  was  not  made  at  the  trial  before  the  jury,  but  suggested  by  the 
court  during  the  argument  before  the  full  court,  and  this  is  stated  by 
the  reporter ;  the  court  interrupted  the  counsel,  and  intimated  a  strong 
doubt,  as  there  was  nothing  to  distinguish  the  $1,969  from  the  remain- 
ing contents  of  the  barrel,  whether  the  action  could  lie.  At  a  future 
day  the  court  gave  judgment  for  the  plaintiff.  The  objection  was  over- 
ruled upon  the  ground  that  the  defendant  had  disposed  of  all  the  dollars, 
consequently  he  had  disposed  of  those  belonging  to  the  plaintiff. 

The  case  of  Gardner  v.  Dutch,  9  Mass.  427,  is  apparently  the  strong- 
est case  in  favor  of  the  plaintiff.  The  case  was  replevin  against  an 
officer  who  had  attached  goods  as  the  property  of  Wellman  &  Ropes. 
The  plaintiff  had  seventy-six  bags  of  coffee,  to  which  he  became  enti- 
tled as  owner,  upon  an  adjustment  of  accounts  of  a  voyage  he  had 
performed  for  Wellman  &  Ropes,  but  the  bags  belonging  to  the  plaintiff 
were  in  no  way  distinguished  by  marks,  or  separated  from  the  other 
coffee  of  Wellman  &  Ropes.  The  plaintiff  on  his  arrival  at  Salem, 
from  his  voyage,  delivering  the  entire  coffee  to  Wellman  &  Ropes, 
taking  their  receipt  "  for  seventy-six  bags  of  coffee,  being  his  adventure 
on  board  schooner  '  Libert}','  and  which  we  hold  subject  to  his  order  at 
an}-  time  he  may  please  to  call  for  the  same."  The  point  taken  in  the 
case  was  that  the  plaintiff  had  not  the  sole  property,  but  oni}T  an  undi- 
vided interest,  and  so  could  not  maintain  replevin.  The  court  ruled 
that  the  plaintiff  was  not  a  tenant  in  common,  but  might  have  taken 
the  number  of  bags  to  which  he  was  entitled,  at  his  own  selection,  and 
might  maintain  his  action. 

This  case,  on  the  face  of  it,  seems  to  go  far  to  recognize  the  right  of 
one  having  a  definite  number  of  barrels  of  any  given  articles  mingled 
in  a  common  mass,  to  select  and  take,  to  the  number  he  is  entitled, 
although  no  previous  separation  had  taken  place.  It  is,  however,  to  be 
borne  in  mind  in  reference  to  this  case,  that  it  did  not  arise  between 
vendor  and  vendee.  The  interest  in  the  seventy-six  bags  of  coffee  did 
not  originate  by  purchase  from  Wellman  &  Ropes.  They  became  the 
specific  property  of  the  plaintiff  in  that  action  on  an  adjustment  of  an 

8 


114  SCUDDER   V.    WORSTER.  [c HAP.  II. 

adventure,  the  whole  proceeds  of  which  were  in  his  hands  ;  and  sepa- 
rated with  the  possession,  only  when  he  took  their  accountable  receipts 
for  seventy-six  bags,  held  by  them  on  his  account.  It  did  not  raise 
the  question,  here  so  fully  discussed,  as  to  what  is  necessary  to  con- 
stitute a  delivery,  and  how  far  it  was  necessary  to  have  a  separation 
from  a  mass  of  articles,  to  constitute  a  transfer  of  title.  Perhaps  the 
circumstances  may  well  have  warranted  that  decision,  but  we  are  not 
satisfied  that  the  doctrine  of  it  can  be  properly  applied  to  a  case  where 
the  party  asserts  his  title,  claiming  only  as  a  purchaser  of  a  specific 
number  of  barrels,  there  having  been  no  possession  on  his  part,  and  no 
separation  of  the  same  from  a  larger  mass  of  articles  similar  in  kind, 
and  no  descriptive  marks  to  designate  them. 

On  the  other  hand,  in  support  of  the  position  that  this  sale  was  never 
perfected  for  want  of  such  separation  of  the  particular  barrels  on  ac- 
count of  the  plaintiff,  or  some  designation  of  them  from  others  of  like 
kind,  there  will  be  found  a  strong  weight  of  authority  ;  and  to  some  of 
the  most  prominent  cases   I  will  briefly  refer.     Thus,   in  the  case  of 
Hutchinson  v.  Hunter,  7  Barr,  140,  which  was  an  action  of  asstcmpsit 
to  recover  payment  for  100  barrels  of  molasses  sold  to  the  defendant, 
the  same  being  parcel  of  125  barrels,  and  the  whole  destroyed  by  fire 
while  on  storage,  and  before  separation  or  designation  of  any  particular 
barrels,  it  was  held  that  the  plaintiff  could  not  recover,  the  sale  never 
having  been  consummated.     Rogers,  J.,  says:   "The  fundamental  rule 
which  applies  to  this  case  is,  that  the  parties  must  be  agreed  as  to  the 
specific  goods  on  which  the  contract  is  to  attach  before  there  can  be  a 
bargain   and   sale.     The   goods  must  be  ascertained,   designated,  and 
separated  from  the  stock  or  quantity  with  which  they  are  mixed,  before 
the  property  can  pass."     He  considers  the  case  of  Pleasants  v.  Pendle- 
ton, 6  Rand.  475,  as  decided  on  erroneous  principles.     The  case  of 
Hutchinson  v.  Hunter  presented  a  case  of  a  sub-contract  or  sale  like 
the  present,  and  it  was  urged  that  this  differed  the  case  from  what  it 
might  otherwise  have  been,  as  respects  the  original  vendor.     But  the 
court  held  that  this  did  not  vary  the  case  in  the  matter  of  the  necessity 
of  a  separation  of  the  article  sold  from  the  greater  mass.     So  in  Colder 
v.  Ogden,  15  Penn.  St.  (3  Harris),  528,  where  a  contract  was  made  for 
the  sale  of  2,000  pieces  of  wall  paper,  the  purchaser  giving  his  notes 
therefor  to  the  vendor,  and  taking  away  with  him  1.000  pieces,  and  it 
was  agreed  that  the  other  1,000  pieces  should  remain  until  called  for  by 
the  purchaser,  upon  a  question  of  property  in  the  remaining  1,000  pieces 
between  the  assignees  of  the  vendor  and  the  purchaser,  it  was  held  that 
these  L,000  pieces  not  having  been  selected  by  the  buyer,  or  separated, 
or  sel  apart  for  him,  but  remaining  mingled  with  other  paper  of  same 
description,  did  not  become  the  property  of  the  alleged  buyer,  as  against 
.in  as-,i<4nment  for  the  benefit  of  the  creditors  of  the  vendor.     The  prin- 
ciple advanced  in  that  case  seems  to  be  the  sound  one:  "That  the 
property  cannot  pass  until  there  be  a  specific  identification  in  some  way 
of  the  particular  goods  which  the  party  bargains  for.     The  law  knows  no 


SECT.  IV.]  SCUDDER   V.   WORSTER.  115 

such  thing  as  a  floating  right  of  property,  which  may  attach  itself  either 
to  one  parcel  or  the  other,  as  may  be  found  convenient  afterwards." 
The  case  of  Waldo  v.  Belcher,  11  Iredell,  609,  was  the  case  of  a  sale  of 
corn  by  a  vendor,  having  in  his  store  3,100  bushels  of  corn,  and  selling 
2,800  bushels  of  the  same,  but  the  2,800  bushels  were  never  separated 
from  the  3,100,  and  the  whole  was,  after  the  sale,  destroyed  by  fire  ;  and 
it  was  held  that  the  property  in  the  2,800  bushels  did  not  pass  to  the 
vendee,  though  it  would  have  been  otherwise  had  it  been  a  sale  of  all 
the  corn  in  the  crib.  The  ground  of  the  decision  was,  that  there  had 
been  no  separation,  that  it  could  not  be  ascertained  which  corn  was  the 
property  of  the  vendee  until  it  was  separated.  The  purchaser  could 
not  bring  detinue,  because  he  could  not  describe  the  particular  thing. 
This  would  be  equally  so  as  to  replevin.  The  case  of  Merrill  /'.  Hun- 
newell,  13  Pick.  213,  bears  strongly  upon  the  question  before  us.  It 
was  a  sale  of  nine  arches  of  bricks  in  a  kiln  containing  a  larger  number, 
but  not  separated  from  the  residue,  or  specifically  designated.  After 
the  vendor  had,  by  other  sales,  reduced  the  quantity  on  hand  to  less 
than  nine  arches,  upon  a  question  of  property  between  the  vendee  and 
an  attaching  creditor  of  the  vendor,  it  was  held  the  purchaser  took 
no  property  in  the  bricks,  the  sale  being  a  part  of  a  large  mass,  not 
delivered  nor  specifically  designated. 

Blackburn,  in  his  Treatise  on  Sales,  p.  122,  presents  the  law  on  this 
subject  thus:  "  Until  the  parties  are  agreed  as  to  the  specific  identical 
goods,  the  contract  can  be  no  more  than  a  contract  to  supply  goods 
answering  a  particular  description,  and  since  the  vendor  would  fulfil  his 
part  of  the  contract  by  furnishing  any  parcel  of  goods  answering  that 
description,  it  is  clear  there  can  be  no  intention  to  transfer  the  property 
in  any  particular  lot  of  goods  more  than  another,  until  it  is  ascertained 
which  are  the  very  goods  sold." 

Examining  the  facts  in  the  case  before  us,  and  applying  the  princi- 
ples of  the  cases  last  cited,  and  the  approved  elementary  doctrine  as 
to  what  is  necessary  to  constitute  a  sale  of  property  not  separated 
from  the  mass  of  like  kind,  or  designated  by  an}'  descriptive  marks, 
the  court  are  clearly  of  opinion  that  the  property  in  the  specified  150 
barrels  of  pork  taken  by  the  plaintiff,  under  his  writ  of  replevin,  had 
never  passed  from  the  vendors,  and  therefore  this  action  cannot  be 
maintained. 

In  the  argument  of  this  case  on  the  part  of  the  plaintiff,  the  case 
was  put  as  a  case  of  intermixture  of  goods,  and  it  was  argued  that 
such  intermixture  having  taken  place,  the  plaintiff  might,  for  that 
cause,  hold  the  property  as  his.  But.  in  fact,  there  was  no  such  case 
of  intermixture.     The  entire  property  was  always  in  the  defendants. 

It  was  also  urged  that  the  defendants  were  estopped  to  deny  that 
the  150  barrels  of  pork  were  the  property  of  the  plaintiff,  having  given 
a  hill  of  sale  of  the  same,  and  under  the  circumstances  stated  in  the 
statement  of  facts.  Had  this  been  an  action  to  recover  damages  f<>r 
the  value  of  150  barrels  of  pork,  this  position  might  be  tenable,  and 


116  KEELER    V.    GOODWIN.  [CHAP.  II. 

the  defendants  estopped  to  deny  the  property  of  the  plaintiff  in  such 
150  barrels.  This  would  be  so  if  an  action  had  been  brought  against 
the  defendants  as  bailees  of  150  barrels  of  pork,  and  for  not  delivering 
the  same. 

But  the  distinction  between  the  case  of  an  action  for  damages  for 
not  delivering  150  barrels,  and  that  of  replevin,  commanding  the 
officer  to  take  from  the  possession  of  the  defendants  150  barrels,  and 
deliver  the  same  to  plaintiff  as  his  property,  is  an  obvious  one.  To 
sustain  the  former,  it  is  only  necessary  to  show  a  right  to  150  barrels 
generally,  and  not  any  specific  150  barrels;  but  to  maintain  replevin, 
the  plaintiff  must  be  the  owner  of  some  specific  150  barrels.  If 
bought,  they  must  be  specifically  set  apart,  or  designated  in  some  way 
as  his,  and  not  intermingled  with  a  larger  mass  of  like  kind  owned  by 
the  vendor.  Judgment  for  the  defendants. 


CORNELIUS   S.   KEELER   v.    HERSEY  B.  GOODWIN. 
Supreme  Judicial  Court  oe  Massachusetts,  March,  1873. 

[Reported  in  111  Massachusetts,  490.] 

Tort  against  Herscy  B.  Goodwin  and  Joseph  H.  Locke,  for  conver- 
sion of  1,000  bushels  of  corn.  Writ  dated  November  7,  1870.  At 
the  trial  in  the  Superior  Court,  before  Lord,  J.,  the  following  facts 
appeared  :  — 

On  September  29,  1870,  Wesley  P.  Balch  bought  1,000  bushels  of 
corn  from  the  defendants,  to  be  paid  for  in  cash  in  ten  days,  and  the 
defendants  gave  him  an  order  on  the  warehouse  where  the  corn  was 
stored,  being  then  parcel  of  a  larger  quantity  lying  in  bulk.  On  Octo- 
ber 1,  Balch  indorsed  and  delivered  the  order  to  the  plaintiff  as  security 
for  a  lien.  The  plaintiff  did  not  then  know  that  the  corn  had  not  been 
paid  for,  but  Balch  never  paid  for  the  corn,  and,  within  ten  days  from 
September  29,  became  insolvent.  About  fifteen  days  after  receipt  of 
the  order  the  plaintiff  presented  it  to  the  warehouseman  and  demanded 
the  corn.  Delivery  was  refused  for  the  reason  that  the  order  had  been 
countermanded  by  the  defendants  ;  and  before  this  suit  was  brought  the 
defendants  took  the  corn  away.  The  order  was  never  presented  to  the 
warehouseman,  except  as  above  stated. 

The  plaintiff  offered  evidence  tending  to  prove  a  usage  in  the  grain 
trade  to  treat  an  order  on  a  warehouse  as  a  delivery. 

The  judge  ruled  that  the  action  could  not  be  supported,  and  directed 
a  verdict  for  Ihe  defendants,  which  was  returned.  The  judge  reported 
the  case  for  the  determination  of  this  court;  if  the  ruling  was  correct, 
judgment  to  be  entered  for  the  defendants,  unless  the  plaintiff  could 
maintain  his  action  by  an  amendment;  if  the  ruling  was  erroneous,  the 
verdict  to  be  set  aside  and  a  new  trial  ordered. 


SECT.  IV.]  KEELEK   V.    GOODWIN.  117 

S.  J.  Thomas,  for  the  plaintiff. 

A.  Churchill  &  J.  E.  Hudson,  for  the  defendants. 

WellS,  J.  There  are  two  fatal  difficulties  in  the  way  of  recovery  by 
the  plaintiff. 

1.  To  maintain  an  action  of  trover,  in  favor  of  one  who  has  never  had 
possession,  there  must  be  proof  both  of  title  and  right  of  present  pos- 
session. Fairbank  v.  Phelps,  22  Pick.  535  ;  Winship  v.  Neale,  10  Gray, 
382  ;  Landon  v.  Emmons,  97  Mass.  37. 

Here  was  a  contract  of  sale  of  1,000  bushels  of  corn,  "parcel  of  a 
larger  quantity  lying  in  bulk."  Until  separation  in  some  form,  no  title 
could  pass.  Young  v.  Austin,  G  Pick.  280  ;  Merrill  v.  Hunnewell,  13 
Pick.  213;  Scudder  y.  Worster,  11  Cush.  573;  Weld  v.  Cutler,  2  Grav, 
195;  Ropes  v.  Lane,  9  Allen,  502,  510;  s.  c.  11  Allen,  591.  That  it 
was  on  storage  with  a  third  party,  as  warehouseman,  would  make  no 
difference  in  this  respect. 

Delivery  of  the  order  upon  the  warehouseman  authorized  him  to  make 
the  separation  or  appropriation  necessary  to  complete  the  sale  by  giv- 
ing to  the  contract  its  intended  effect  upon  the  specific  property  covered 
by  it.  If  that  had  been  accomplished,  either  by  actual  separation,  or 
by  appropriation  to  the  use  or  credit  of  the  purchaser,  in  the  usual 
mode  of  transacting  the  business  of  the  warehouse,  he  would  have  ac- 
quired title,  right  of  possession,  and  constructive  possession  of  the 
grain  so  purchased.     Gushing  v.  Breed,  14  Allen,  370. 

But  until  some  act  takes  place  by  which  the  relations  of  the  ware- 
houseman, in  respect  to  the  property  in  his  custody,  are  modified  in 
accordance  with  the  contract  of  sale,  so  that  he  may  be  considered  as 
bailee  for  the  seller  and  purchaser  respectively,  according  to  their  sev- 
eral interests,  and  thus  released,  pro  tarda,  from  his  original  liability 
to  the  seller  alone,  there  is  no  such  appropriation  of  the  grain  sold  as 
will  ripen  the  interest  of  the  purchaser  into  title  and  right  to  the  posses- 
sion of  any  specific  portion  of  the  bulk.  Whether  the  assent  of  the 
warehouseman  is  necessary  to  the  imposition  of  this  twofold  relation 
upon  him,  or  whether  presentation  of  the  order  alone,  or  notice  of  the 
sale  would  be  sufficient,  we  need  not  now  determine,  because  there  was 
neither  in  this  case,  until  after  the  authority  of  the  warehouseman  to 
make  the  appropriation  had  been  revoked.  The  purchaser,  therefore, 
never  acquired  any  title  or  right  of  possession,  and  could  transfer  none, 
and  consequently  no  right  of  action,  to  the  plaintiff. 

2.  But  regarding  the  sale  and  order  for  delivery  as  sufficient  to  make 
it  effectual  to  pass  the  title  as  between  the  parties,  still  until  actual  and 
full  delivery  the  seller  is  not  deprived  of  his  right  to  insist  upon  his 
lien  for  the  price.  Delivery  to  a  carrier  for  transportation  to  the  pur- 
chaser is  sufficient  to  pass  the  title,  and  authorize  the  carrier  to  com- 
plete the  delivery  and  make  it  absolute.  But  until  so  made  absolute, 
the  seller  may  revoke  his  authority,  and  thus  intercept  the  transmission, 
restore  himself  to  possession,  and  retain  his  lien. 

The  same  principle  applies  in  ail  oases  of  inchoate  delivery,  by  what- 


118  MORRISON    V.    WOODLEY.  [CHAP.  II. 

ever  mode  of  transmission  of  possession.  Until  the  delivery  is  actual 
and  absolute,  the  seller  may  suspend  it,  and  revoke  the  authority  of 
any  intermediary  to  perfect  it.  M'Evvan  v.  Smith,  2  H.  L.  Cas.  309  ; 
Griffiths  v.  Perry,  1  E.  &  E.  680;  Rowley  v.  Bigelow,  12  Pick.  307, 
312  ;  Mohr  u.  Boston  &  Albany  Railroad  Co.,  10G  Mass.  67.  The  in- 
solvency of  Balch,  the  purchaser,  was  a  sufficient  justification  for  so 
doing,  even  if  the  sale  was  an  unconditional  one  upon  a  credit  of  ten 
days.  Arnold  v.  Delano,  4  Cush.  33  •,  Stubbs  v.  Lund,  7  Mass.  453  ; 
IS  ay  lor  v.  Dennie,  8  Pick.  1(J8.  Judgment  for  the  defendants.1 


EZEKIEL   MORRISON  v.    GEORGE   WOODLEY. 
Supreme  Court  of  Illinois,  September  Term,  1876. 

[Reported  in  84  Illinois,  192.] 

Mr.  Justice  Dickey  delivered  the  opinion  of  the  court. 

Appellant  and  appellee  were  both  residents  of  Chicago,  and  each  had 
his  place  of  business  there.  On  the  24th  of  February,  1870,  appellant 
sold  to  appellee  3,000  railroad  hemlock  ties,  at  twenty  cents  each,  and 
gave  him  a  bill  and  receipt,  in  the  words  following  :  — 

Mr.  George  Woodley  bought  of  E.  Morrison  3,000  hemlock  railroad 
ties,  lying  on  Foss'  dock,  Muskegon,  free  of  dockage,  and  subject  to 
Chicago  inspection,  —  ties  to  be  taken  off  dock  at  the  first  of  navigation. 

To  3,000  hemlock  ties,  @  20  cents $600.00 

Received  payment, 

Chicago,  Feb.  24,  1870.  E.   MORRISON. 

Appellant,  at  that  time,  had  lying  on  that  dock  in  Wisconsin  some 
7,000  to  8,000  of  that  kind  of  ties,  these  remaining  there  under  the  care 
of  Mr.  Fleming,  who  had  bought  the  ties  for  appellant  (but  who  had, 
as  appellant  testifies,  no  authority  to  sell  or  dispose  of  the  same),  until 
May.  The  appellee  wrote  to  Fleming  from  Chicago,  on  the  7th  of  May, 
1870,  as  follows  :  — 

1  By  chapter  93  of  Massachusetts  Acts  of  1878,  now  enacted  in  Pub.  Stat.  c.  72, 
§  7,  it  is  provided  that  where  graiii  or  other  property  is  stored  in  a  public  warehouse 
in  such  a  manner  that  different  lots  are  mixed  so  that  the  identity  cannot  lie  accurately 
preserved,  the  warehouseman's  receipt  for  any  portion  shall  lie  deemed  a  valid  title  to 
the  portion  designated,  without  regard  to  any  separation  or  identification.     Similar 

statutes  exist  in   Maine  and  Mi isota,   and  perhaps  other  States.     Doubtless    the 

object  aimed  at,  by  such  Btatutes  would  he  attained  without  legislative  enactment  by 
the  courts  <>f  most  western  States,  holding  as  they  do  that  the  depositor  of  grain  in  a 
warehouse  to  he  mixed  with  other  grain  retains  title  to  a  portion  of  the  mass.  Na- 
tional Bank  of  Pontiac  v.  Langan,  28  111.  App.  401;  Woodward  v.  Semans,  12:>  Ind. 
330;  Art  Inn-  v.  Chicago,  Rock  Island,  &  Pac.  Ry.,  t'.l  la.  648;  Ledyard  v.  llihhard,  48 
Mich,  121  ;  Hull  r.  Pillsbury,  4.",  .Minn.  33 ;  .lames  v.  Plank,  48  Ohio  St.  255;  Young 
v,  Miles,  20  Wis  615,  23  Wis.  643;  Rahilly  v.  Wilson,  a  Dill.  426.  See  also  Bretz  r. 
Diehl,  117  Pa  603.     Cf.  South  Australian  Ins.  Co.  v.  liaudell,  L.  R.  3  1'.  C.  101. 


SECT.  IV.]  MORRISON   V.   WOODLEY.  119 

A.  M.  Fleming,  Esq.  —  Dear  Sir:  Your  telegram  is  rec'd,  have  an- 
swered ;  don't  ship.  There  is  no  market  for  them  now,  and  every  dock 
is  full  here  ;  lias  been  three  large  cargoes  docked  to-day,  and  there  is  no 
place  to  put  them,  here.  I  expect  a  place  every  day,  and  will  send  for 
them  at  earliest  moment.  Please  see  the  owners  of  the  dock,  and  write 
me  what  they  will  charge  to  let  them  lay  longer ;  do  the  best  you  can 
for  me,  as  the  prospect  is  that  I  shall  lose  money  on  them  under  the  cir- 
cumstances. You  said  only  a  few  of  them  were  in  the  way.  Can't 
those  be  hauled  and  piled  on  the  bank?  Please  figure  as  you  would 
were  they  your  own,  and  write  me  by  return  mail.  If  necessary,  I  will 
come  over  or  send  a  man  to  move  them,  and  if  no  other  way  presents, 
will  send  a  schooner  over  after  them.  Please  do  all  you  can  for  me, 
and  the  favor  will  be  duly  appreciated.     Yours  truly, 

Geo.  Woodley, 

Chicago,  May  7,  1870.  256  S.  Water  St.,  Chicago. 

Subsequently,  appellee  made  some  arrangement  with  the  owner  of  the 
dock,  to  avoid  the  necessity  of  immediate  removal  of  the  ties,  and  paid 
$20,  either  for  dockage  or  to  provide  for  the  expense  of  removing  part 
of  the  ties,  if  the  dock  should  be  needed  for  other  purposes. 

The  3,000  ties  sold  to  appellee  were  never  selected  or  set  apart  for 
appellee,  or  separated  from  the  other  ties  belonging  to  appellant,  and 
not  embraced  in  this  sale.  Sometime  in  September,  1870,  the  whole 
of  these  ties  (embracing  those  sold  by  appellant  to  appellee)  were  taken 
from  this  dock  and  used  in  the  construction  of  the  Grand  Rapids  and 
Lake  Shore  Railroad,  without  the  knowledge  or  consent  of  either  appel- 
lant or  appellee. 

Appellant  insists,  the  proof  shows  it  was  the  intention  of  the  parties 
that  the  propert}'  in  the  ties  should  vest  at  once  in  appellee,  and  that, 
at  least  ever  after  the}'  were  put  b}'  appellee  (as  appellant  insists)  in 
the  care  of  Fleming,  appellant  had  nothing  more  to  do  about  these  ties, 
and  did  nothing  more  about  them,  and  hence  was  in  no  way  liable  to 
appellee  either  for  the  loss  of  the  ties  or  for  the  money  he  received  from 
appellee.  To  some  members  of  this  court  this  would  seem  to  be  the 
fair  conclusion  from  the  weight  of  the  evidence.  To  others  it  seems 
that  the  Circuit  Court  was  right  in  coming  to  a  different  conclusion, 
from  a  fair  consideration  of  all  the  proofs. 

It  is  plain  that  there  is  evidence  tending  to  prove,  that  after  all  that 
is  relied  upon  by  appellant  as  vesting  the  title  in  appellee,  there  was  a 
new  arrangement  made  between  the  parties,  by  which  it  was  agreed 
that  appellant  take  back  the  ties  on  the  dock,  and  in  lieu  thereof  agreed 
to  let  appellee  have  a  like  amount  of  like  ties  from  a  quantity  of  ties  be- 
longing to  appellant,  at  another  place,  a  few  miles  north  of  the  dock  at 
Muskegon,  and  also  tending  to  show,  that  instead  of  letting  appellee 
have  his  3,000  ties  from  the  latter  place,  appellant  sold  and  shipped  to 
other  parties  all  the  ties  lie  had  at  that  place. 

The  evidence  is  contradictor}-  on  this  branch  of  the  case,  and  in  many 


120  ANONYMOUS.  [CHAP.  II. 

other  respects,  antl  after  a  careful  examination  of  all  the  evidence,  we 
find  no  sufficient  ground  for  disturbing  the  judgment. 

Judgment  affirmed.1 


SECTION  V. 
Specification  of  the  Goods  by  Subsequent  Appropriation. 

ANONYMOUS. 

In  the  Common  Plkas,  Easter  Term,  1477. 

{Reported  in  Year  Book,  17  Edward  IV.,  1,  2.] 

In  trespass  for  a  close  broken,  and  corn,  barley,  and  grass  taken 
away. 

Catesby.  Actio  non,  for  long  before  the  supposed  trespass,  the 
plaintiff  and  defendant  bargained  in  such  a  ward  in  London  that  the 
defendant  should  go  to  the  place  where,  &c,  and  there  see  the  said 
corn,  barley,  and  things  aforesaid,  and  if  they  pleased  him  when  he  saw 
them,  that  he  should  then  take  the  said  corn,  barley,  and  grass,  paving  to 
the  plaintiff  3s.  Ad.  for  each  acre,  one  with  the  other.  And  we  say  that 
we  went  there,  and  that  we  saw  them  as  aforesaid,  and  we  were  well 
content  with  the  bargain,  wherefore  we  took  them,  which  is  the  same 
trespass.     Judgment,  &c.  .  .  . 

Brian  ....  It  seems  to  me  for  any  words  which  have  been  pleaded 
in  this  bargain,  that  it  was  not  lawful  for  him  to  take  the  corn,  for  it 
cannot  be  intended  that  he  meant  the  defendant  should  have  the  corn 

1  "  The  weight  of  American  authority  supports  the  proposition  that  when  property  is 
sold  to  he  taken  out  of  a  specific  mass  of  uniform  quality,  title  will  pass  at  once  upon 
the  making  of  the  contract,  if  such  appears  to  he  the  intent.  Oil  in  a  tank  ami  gram 
in  an  elevator  may  serve  as  illustrations  of  this  rule.  Where,  however,  the  property  is 
Bold  as  part  of  a  mass  made  up  of  units  of  unequal  quality  or  value,  such  as  cattle  in  a 
hen!,  selection  is  essential  to  the  execution  of  the  coutract,  and  of  course  the  rule  can- 
not apply.  Benj.  on  Sales,  477-531,  and  cases  there  cited.  The  Btorage  of  oil  in  tanks 
and  of  grain  in  elevators,  although  not  universal,  is  the  usual  and  ordinary  means  em- 
ployed by  large  dealers  iii  those  commodities,  and  whilst  no  custom  of  that  kind,  tech- 
nically speaking,  could  be  established,  the  usage  of  the  trade  and  general  course  of 
business  in  this  country  is  well  known.  In  view  of  the  necessities  which  grow  out  of 
such  usage,  the  American  courts  have  departed  from  the  rule  adhered  to  in  England, 
and  have  recognized  a  rule  for  the  delivery  of  this  class  of  property  more  in  conform- 
ity with  the  commercial  usages  of  the  country.  A  distinction  is  made  between  those 
cases  where  the  act  of  separation  is  burdensome  and  expensive  or  involves  selection, 

and  those  where  the  article  is  uniform  in  hulk  and  the  act  of  separation  throws  no  ad- 
ditional burden  on  the  buyer.  In  the  latter  class  of  cases  a  tender  of  to.,  much,  from 
which  the  buyer  is  to  take  the  proper  quantity,  is  a  good  delivery.  Benj.  on  Sales, 
1030,  note.  See  also  Kimberly  v.  Patchin,  19  X  V.  ISO;  Hutchison  o.  Commonwealth, 
82  Pa.  172  :  Wilkinson  v.  Stewart,  85  1'a.  255  ;  Bretz  v.  Diehl,  117  Pa.  589."  Brownfield 
v.  Johnson,  L28  Pa.  2.">4,2G7. 


SECT.  V.]  MUCKLOW   V.    MANGLES.  121 

without  paying  the  money.  But  if  he  had  said  to  him,  "Take,  and  pay 
when  you  will,"  or  if  ho  had  given  him  a  day  for  payment,  then  I  con- 
ceive well  that  he  could  take  them,  and  that  would  be  a  good  bar  if  it  was 
pleaded  to  so  much.  And  further,  I  say  that  the  property  is  in  the  defend- 
ant by  the  bargain  in  the  case  at  bar,  and  in  your  cases  of  the  horse  and 
the  cloth  ;  nevertheless,  he  may  not  take  them  without  the  leave  of  the 
other.  And  he  shall  have  a  writ  of  detinue,  but  the  defendant  shall  he 
excused  by  saying  he  was  ready  to  give  it  up  if  the  other  had  paid  ; 
and  if  he  bring  an  action  of  debt  he  shall  have  the  same  plea.  The 
case  is  much  as  where  the  property  remains  all  the  time  in  me,  and 
nevertheless  during  a  certain  time  I  cannot  take  it ;  as  where  I  deliver 
certain  sheep  to  a  man  to  soil  his  fields  for  a  certain  time  ;  there  the 
property  is  in  me,  and  still  during  the  time  I  cannot  take  them  back. 
For  the  other  point,  it  seems  to  me  that  the  plea  is  not  good  without 
showing  that  he  had  certified  the  other  of  his  pleasure  ;  for  it  is  trite 
learning  that  the  thought  of  man  is  not  triable,  for  the  devil  himself 
knows  not  the  thought  of  man  ;  but  if  you  had  agreed  that  if  the  bar- 
gain pleased  you,  then  you  should  show  it  to  such  a  one,  then  1  grant 
you  need  not  have  done  more  for  it  is  a  matter  of  fact. 


MUCKLOW  and  Others,  Assignees   of  Rotland,  v.  MANGLES. 
In  the  Common  Pleas,  June  18,  1808. 

[Reported  in  1  Taunton,  318.] 

Trover  by  the  assignees  of  a  bankrupt  for  a  barge  and  other  effects. 
Upon  the  trial  before  Mansfield,  C.  J.,  at  Westminster,  at  the  sittings 
in  this  term,  it  was  proved  that  Royland,  who  was  a  barge-builder,  had 
undertaken  to  build  the  barge  in  question  for  Pocock.  Before  the  work 
was  begun,  Pocock  advanced  to  Royland  some  money  on  account, 
and  as  it  proceeded,  he  paid  him  more,  to  the  amount  of  £190  in  all, 
being  the  whole  value  of  the  barge.  When  it  was  nearly  finished, 
Pocoek's  name  was  painted  on  the  stern.  Two  days  after  the  comple- 
tion of  the  work,  and  before  a  commission  of  bankrupt  had  issued,  the 
defendant,  who  was  an  officer  of  the  sheriff  of  Middlesex,  under  an 
execution  against  Royland,  took  this  barge,  which  had  not  then  been 
delivered  to  Pocock,  but  gave  it  up  to  him  under  an  indemnity.  The 
jury  found  a  verdict  for  the  plaintiffs.1 

Mansfield,  C.  J.  The  only  effect  of  the  payment  is.  that  the  bank- 
rupt was  under  a  contract  to  finish  the  barge  ;  that  is  quite  a  different 
tiling  from  a  contract  of  sale,  and  until  the  barge  was  finished  we  can- 
not say  that  it  was  so  far  Pocoek's  property  that  he  could  have  taken  it 
away.  It  was  not  finished  at  the  time  when  Royland  committed  the 
ad  of  bankruptcy ;  it  was  finished  only  two  day-;  before  the  execution. 
In  the  case  cited  it  was  necessarily  held  that  the  tar  was  not  in  the  pos- 

1  Best,  Seijt.,  now  moved  that  the  sum  of  £190,  the  value  of  the  barge,  might  he 
deducted  from  the  amount  of  the  verdict,  inasmuch  as  the  property  had  absolutely 

vested  in   PoCOCk. 


122  WOODS   V.    KUSSELL.  [CHAP.  II. 

session  of  the  bankrupt ;  otherwise,  in  every  case  of  tenancy  in  common 
with  a  bankrupt,  the  act  of  bankruptcy  would  vest  the  entire  property 
of  the  chattel  in  his  assignees. 

Heath,  J.  This  is  the  species  of  contract  which  in  the  civil  law  is 
described  by  the  term  Do  ut  facias.  It  comes  within  the  cases  which 
have  been  held  to  be  executory  contracts,  and  as  such  not  within  the 
Statute  of  Frauds,  as  contracts  for  the  sale  of  goods.  A  tradesman 
often  finishes  goods,  which  he  is  making  in  pursuance  of  an  order  given 
b}'  one  person,  and  sells  them  to  another.  If  the  first  customer  has 
other  goods  made  for  him  within  the  stipulated  time,  he  has  no  right  to 
complain  ;  he  could  not  bring  trover  against  the  purchaser  for  the  goods 
so  sold.  The  painting  of  the  name  on  the  stern  in  this  case  makes  no 
difference.  If  the  thing  be  in  existence  at  the  time  of  the  order,  the 
property  of  it  passes  by  the  contract,  but  not  so  where  the  subject  is  to 
be  made. 

Lawrence,  J.  I  am  of  the  same  opinion.  No  property  vests  till 
the  thing  is  finished  and  delivered.  The  court  refused  the  rule. 


WOODS  and  Another,  Assignees  of  Alexander  Paton,  a  Bankrupt, 

v.  RUSSELL. 

In  the  King's  Bench,  June  26,  1822. 
[Reported  in  5  Barnewall  §•  Alderson,  942.] 

This  case  was  tried  before  Bayley,  J.,  at  the  summer  assizes,  1820, 
and  came  on  for  argument  in  the  course  of  Easter  Term,  upon  a  special 
case,  which  it  is  unnecessary  to  set  out,  as  the  facts  are  fully  stated  in 
the  judgment  delivered  by  the  court.    The  case  was  argued  by 

LittledaZe,  for  the  plaintiffs. 

Holt,  contra.  Cur.  adv.  vidt. 

Abbott,  C.  J.,  now  delivered  the  judgment  of  the  court. 

This  was  an  action  of  trover  for  a  ship,  rudder,  and  cordage,  by  the 
assignees  of  Alexander  Paton,  a  bankrupt,  and  the  facts  were  shortly 
as  follows  :  Paton  was  a  ship-builder,  and  in  October,  1818,  he  entered 
into  a  written  contract  with  the  defendant  to  build  and  complete  a  ship 
for  the  defendant,  and  finish  and  launch  her  in  April,  1819;  and  the 
defendant  was  to  pay  for  the  ship  by  four  instalments  of  £750  each : 
the  first  when  the  keel  was  laid  ;  the  second  when  they  were  at  the  light 
plank;  and  the  third  and  fourth  when  the  ship  was  launched.  The 
payments  were  to  be  made  by  bills  at  two,  four,  six,  and  eight  months. 
The  first  and  second  instalments  were  duby  paid  in  March,  1819  ;  the 
defendant  appointed  a  master,  who,  from  that  time,  superintended  the 
building.  In  May,  1819,  the  defendant  advertised  the  ship  for  charter, 
and  «»n  the  lGth  of  June  chartered  her,  with  Baton's  privity,  for  a  voyage 


SECT.  V.]  WOODS    V.    RUSSELL.  123 

from  Newcastle  to  Newfoundland.  Before  the  2Cth  of  June  the  ship 
was  measured  and  surveyed,  with  Patou's  privity,  with  the  intent  that 
the  defendant  might  get  her  registered  in  his  name.  On  the  l'Jth  June 
the  master  entered  into  the  usual  bond  for  delivering  up  the  register; 
on  the  25th  Paton  signed  the  usual  certificate  of  her  build,  &c,  and  on 
the  26th  the  ship  was  registered  in  the  defendant's  name.  On  that 
day  the  defendant  paid  Paton  the  third  instalment.  Paton's  certificate 
described  the  ship  as  launched,  but  that  was  not  the  case,  and  Paton's 
people  continued  working  upon  her,  and  using  his  timber  and  materials 
till  the  3d  of  July.  One  of  the  master's  apprentices  was  employed  on 
board  by  his  directions  from  the  early  part  of  June,  and  on  the  30th 
the  master  ordered  him  to  sleep  on  board  ;  but  on  that  same  day  Paton 
committed  an  act  of  bankruptcy,  upon  which  a  commission  afterwards 
issued.  On  the  2d  of  .July  the  defendant  and  a  crew  he  had  hired  took 
possession  of  the  ship  ;  and  his  servants,  by  his  direction,  took  from 
Paton's  yard  and  warehouse  a  rudder  and  cordage,  which  Paton  had 
bought  for  the  ship.  On  the  4th  of  July  the  ship  was  launched.  The 
fourth  instalment  was  never  paid.  The  ship  was  incomplete  when  the 
act  of  bankruptcy  was  committed,  and  the  expense  of  launching  her  was 
borne  by  the  defendant.  Upon  these  facts,  the  questions  proposed  to 
the  consideration  of  the  court  were,  whether  the  plaintiffs  were  entitled 
to  recover  the  value  of  the  ship,  in  which  case  the  value,  subject  to  a 
deduction,  was  to  be  taken  at  £3,000  ;  or,  if  not,  whether  they  were 
entitled  to  recover  the  value  of  the  rudder  and  cordage  ;  and,  should 
the  court  be  of  opinion  that  they  were  entitled  to  neither,  a  nonsuit  was 
to  be  entered  ;  and  upon  these  points  alone  the  case  was  argued  before 
the  court.  It  has  occurred,  however,  to  the  court,  that  a  third  question 
arises  upon  the  facts,  which  neither  party  could  have  intended  to  exclude, 
which  is  this  :  whether,  if  the  plaintiffs  are  not  entitled  to  recover  the 
whole  value  of  the  ship,  they  may  not  be  entitled  to  recover  to  the  extent 
of  so  much  of  the  fourth  instalment  as,  if  the  defendant  has  the  ship,  he 
ought  to  pay.  And,  upon  the  first  and  second  questions,  our  opinion  is 
in  favor  of  the  defendant ;  upon  the  last  against  him.  This  ship  is  built 
upon  a  special  contract,  and  it  is  part  of  the  terms  of  the  contract,  that 
given  portions  of  the  price  shall  be  paid  according  to  the  progress  of  the 
work  ;  part  when  the  keel  is  laid,  part  when  they  are  at  the  light  plank. 
The  payment  of  these  instalments  appears  to  us  to  appropriate  specifi- 
cally to  the  defendant  the  very  ship  so  in  progress,  and  to  vest  in  the 
defendant  a  property  in  that  ship,  and  that,  as  between  him  and  the 
builder,  ho  is  entitled  to  insist  upon  the  completion  of  that  very  ship, 
and  that  the  builder  is  not  entitled  to  require  him  to  accept  any  other. 
But  this  case  does  not  depend  merely  upon  the  payment  of  the  instal- 
ments ;  so  that  we  are  not  called  upon  to  decide  how  far  that  payment 
vests  the  property  in  the  defendant,  because  here  Paton  signed  the  cer- 
tificate to  enable  the  defendant  to  have  the  ship  registered  in  his  (the 
defendant's)  name,  and  by  that  act  consented,  as  it  seems  to  us.  that 
the  general  property  in  the  ship  should  be  considered  from  that  time  as 


124  WOODS   V.   KUSSELL.  [CHAP.  II. 

being  in  the  defendant.  The  defendant  had,  at  that  time,  paid  half 
what  the  ship,  when  complete,  would  be  worth.  Paton  could  not  be 
injured  by  having  the  general  property  in  the  ship  considered  as  vested 
in  the  defendant,  because  he  would  still  have  a  lien  upon  the  possession 
for  the  residue  of  the  price  ;  and  we  think  the  legal  effect  of  signing  the 
certificate,  for  the  purpose  of  having  the  ship  registered  was,  from  the 
time  the  registry  was  complete,  to  vest  the  general  property  in  the  de- 
fendant. In  order  to  register  the  ship  in  the  defendant's  name,  an  oath 
would  be  requisite  that  the  defendant  was  the  owner ;  and  when  Paton 
concurred  in  what  he  knew  was  to  lead  to  that  oath,  must  he  not  be 
taken  to  have  consented  that  the  ownership  should  realty  be  as  that 
oath  described  it  to  be?  The  case  of  Mucklow  v.  Mangles,  1  Taunt. 
318,  seems  to  us  to  be  clearly  distinguishable  from  the  present,  because 
the  bargain  there  for  building  the  barge  does  not  appear  to  have  stipu- 
lated for  the  advances  which  were  made  ;  and  those  advances  do  not 
appear  to  have  been  regulated  by  the  progress  of  the  work.  Mr.  Justice 
Heath's  opinion  appears  to  have  been  founded  on  the  notion  that  the 
builder  was  not  tied  down  to  deliver  that  specific  barge,  but  would  have 
been  at  full  liberty  to  have  substituted  any  other  he  was  building,  and 
the  builder  had  done  no  act  expressing  an  unequivocal  consent  that  the 
general  property  should  be  considered  vested  in  the  purchaser.  The 
painting  of  the  name  upon  the  stern,  the  only  act  there,  pledged  the  builder 
to  nothing  ;  it  expressed  an  intention  that  the  barge  should  be  Pocock's, 
but  it  did  no  more.  He  might  change  that  intention  and  obliterate  the 
name.  But  the  signing  of  the  certificate  here,  to  the  intent  that  the 
defendant  might  obtain  a  registry  in  his  own  name,  was  a  consent  that 
what  was  necessary  to  enable  the  defendant  to  obtain  such  registry, 
should,  as  between  them,  be  considered  as  complete  ;  and  that,  as  the 
defendant  would  have  to  swear  that  he  was  sole  owner  of  the  ship,  the 
ownership  should  be  considered  his.  We  are,  therefore,  of  opinion, 
that  the  assignees,  who  claim  under  Paton,  are  bound  equally  with  him  ; 
and  as  this  is  not  a  case  within  the  statute  of  James,  the  plaintiffs  are 
not  entitled  to  recover  the  general  value  of  the  ship.  And  as  to  the 
rudder  and  cordage,  as  they  were  bought  by  Paton  specifically  for  this 
ship,  though  they  were  not  actually  attached  to  it  at  the  time  his  act  of 
bankruptcy  was  committed,  they  seem  to  us  to  stand  upon  the  same 
footing  with  the  ship,  and  that,  if  the  defendant  was  entitled  to  take 
the  ship,  he  was  also  entitled  to  take  the  rudder  and  cordage  as  parts 
thereof.  Upon  the  last  question,  however,  we  are  of  opinion  against 
tlic  defendant.  Though  the  general  ownership  was  vested  in  the  de- 
fendant, the  possession  remained  with  Paton  ;  and  as  the  bills  for  the 
third  and  fourth  instalments  were  to  be  given  at  the  launching  of  the 
ship  (when  launched),  Paton,  had  he  completed  the  ship,  would  have 
had  a  lien  upon  it  till  those  bills  were  given;  and  as  the  defendant 
thought  fit  to  take  the  ship  before  it  was  complete,  after  having  given 
bills  for  the  first  three  instalments  only,  we  think  he  ought  to  have  given 
a  bill  for  so  much  of  the  fourth  instalment  as,  according  to  the  value  of 


SECT.  V.J  FKAGANO   V.    LONG.  125 

what  remained  to  be  done,  Paton  was  entitled  to  receive  ;  and  that, 
unless  what  remained  to  be  done  would  be  equal  to  the  whole  of  the 
fourth  instalment,  his  taking  the  ship,  without  giving  or  tendering  such 
a  bill  was  a  wrongful  taking.  We  are,  therefore,  of  opinion  that,  accord- 
ing to  the  provision  made  in  that  respect  in  the  case,  it  ought  to  be 
referred  to  Mr.  Bainbridge  and  Mr.  Clayton,  and  such  third  person  as 
they  shall  appoint,  to  take  an  account  of  the  want  of  materials  stipulated 
to  be  provided  by  Paton  not  on  board,  and  the  fair  expense  of  launch- 
ing, and  to  enter  the  verdict  accordingly.  If  the  want  of  materials,  and 
the  expense  of  launching,  shall  amount  to  £750,  the  verdict  to  be  entered 
for  the  defendant ;  if  it  shall  amount  to  less  than  £750,  a  verdict  for  the 
difference  to  be  entered  for  the  plaintiff.  Judgment  accordingly. 


FRAGANO  v.  LONG. 
In  the  King's  Bench,  Easter  Term,  1825. 

[Reported  in  4  Barneivall  §•  Cresswell,  219.] 

Assumpsit  against  defendant  as  owner  of  the  brig  or  vessel  James 
and  Theresa,  for  negligence  in  shipping  a  cask  of  hardware.  At  the 
trial  before  Hullock,  B.,  at  the  Lancaster  summer  assizes,  1824,  the 
following  facts  appeared  in  evidence.  Mason  &  Sons,  hardwaremen  at 
Birmingham,  in  April,  1822,  received  an  order  from  the  plaintiff  residing 
at  Naples,  of  which  the  following  is  a  translation  :  — 

Naples,  March  28.  1*22. 
Order  transmitted  by  G.  Fragano,  of  this  city,  to  Mason  &  Sons  of 
Birmingham,  through  Mr.  F.  L.  for  the  following  merchandise,  to  be 
despatched  on  insurance  being  effected.     Terms  to  be  three  months' 
credit  from  the  time  of  arrival. 

The  order  then  specified  the  goods.  In  pursuance  of  this  order,  the 
cask  of  hardware  in  question  marked  with  the  plaintiff's  initials  was 
sent  by  the  canal  from  Birmingham,  by  Mason  &  Sons,  to  Messrs. 
Stokes,  their  shipping  agents  at  Liverpool,  with  directions  to  forward 
the  same  to  Naples.  An  insurance  was  effected,  and  the  interest  declared 
to  be  in  Fragano.  On  the  3d  of  July,  Messrs.  Stokes  received  a  notice 
of  the  arrival  of  the  goods  from  the  canal  carrier,  and  sent  their  porter, 
who  received  the  goods  from  the  carrier,  and  took  them  in  a  cart  to  the 
quay  where  the  James  and  Theresa  was  lying,  and  delivered  them  on 
the  quay  to  the  mate  of  that  vessel,  who  gave  the  following  receipt  : 

Received  in  good  order  and  condition  on  board  the  James  and  Theresa. 
for  Naples,  one  cask  of  hardware. 

G.  F.  Samuel  Smith,  Mate. 

From  W.  &  J.  Stokes. 


126  FRAGANO  V.    LONG.  [CHAP.  II. 

The  goods  were  left  in  the  custody  of  the  mate,  and  before  the}'  were 
actually  put  on  board,  by  some  accident  the  cask  fell  into  the  water,  by 
which  the  injury  complained  of  was  sustained.  Upon  this  evidence  the 
jury,  under  the  direction  of  the  learned  judge,  found  a  verdict  for  the 
plaintiff.  In  Michaelmas  Term,  a  rule  nisi  for  a  new  trial  was  obtained, 
on  the  ground,  first,  that  no  bill  of  lading  having  been  made  out,  the 
property  in  the  goods  was  never  vested  in  the  plaintiff;  secondl}',  that 
by  the  terms  of  the  order,  the  goods  were  not  to  be  at  the  plaintiff's  risk 
until  after  their  arrival  at  Naples. 

J"1.  Pollock  was  now  called  upon  to  support  the  rule. 

Crompton,  contra. 

Bayley,  J.  Considering  this  case  apart  from  the  order  given  dy  the 
plaintiff,  it  is  quite  free  from  doubt  either  in  law  or  justice.  It  appears, 
however,  that  the  plaintiff  sent  an  order  to  Mason  &  Sons  at  Birming- 
ham, for  the  goods  in  question  "to  be  despatched  on  insurance  being 
effected.  Terms  to  be  three  months'  credit  from  the  time  of  arrival." 
But  for  that  order  the  goods  never  would  have  left  Mason's  warehouse, 
and  when  sent,  they  were  marked  with  the  plaintiff's  initials.  If  the 
goods  had  been  destroyed  by  lightning  on  the  road  to  Liverpool,  Fragano 
must  have  borne  the  loss.  At  Liverpool,  Stokes  &  Co.,  Mason's  ship- 
ping agents,  shipped  the  goods  and  took  a  receipt.  It  is  argued  that 
the  agent  was  thereby  enabled  to  maintain  an  action  for  the  goods,  but 
that  Fragano  as  his  principal  could  not.  I  think  that  position  is  not 
correct,  although  there  might  have  been  some  difficult}'  had  Stokes  &  Co. 
set  up  an  adverse  interest.  It  therefore  seems  to  me,  that  as  the  goods 
left  Mason's  warehouse  by  the  order  of  the  plaintiff,  they  were  at  his 
risk,  and  that  he  can  maintain  an  action  for  them,  unless  the  form  of 
the  order  which  he  gave  for  them  deprives  him  of  that  right.  It  has 
been  urged  that  the  form  of  the  order  throws  the  risk  upon  the  vendor 
until  the  arrival  of  the  goods,  for  they  were  not  to  be  paid  for  until  three 
months  from  that  period,  and  consequently  that  the  arrival  was  a  con- 
dition precedent  to  Mason's  right  to  sue  for  the  price.  If.  however,  the 
goods  were  not  to  be  paid  for  unless  they  arrived,  why  should  the  plain- 
tiff insure  them?  That  shows  that  the  arrival  was  not  considered  as  a 
condition  precedent  to  the  payment.  If  the  goods  arrived,  three  months 
from  the  arrival  was  to  be  the  period  of  credit;  if  they  did  not  arrive, 
still  the  plaintiff  would  lie  bound  to  pay  in  a  reasonable  time  after  the 
arrival  became  impossible.  If  this  were  not  so,  the  insurance  would  be 
altogether  nugator}',  for  Fragano  could  not  sue  upon  it,  neither  could 
Mason,  the  interest  being  declared  to  be  in  Fragano.  For  these  reasons, 
I  am  of  opinion  that  the  form  of  the  order  for  the  goods  does  not  vary 
the  case,  and  that  the  verdict  was  properly  found  for  the  plaintiff. 

Holrotd,  J.  I  also  think  that  the  verdict  found  for  the  plaintiff  was 
right.  It  has  been  argued  that  neither  the  mate  nor  the  owner  of  the 
vessel  was  liable  to  any  one  but  Stokes  &  Co.,  from  whom  the  goods 
were  received.  _  But  it  is  a  principle  of  law,  that  the  real  owner  of  the 
goods,  for  whom  Stokes  &  Co.  were  agents,  may  sue  for  the  loss,  although 


SECT.  V.]  ATKINSON   V.   BELL.  127 

the  defendant  was  not  informed  of  his  existence.  Then  it  has  been  urged 
that  Fragano  had  no  interest  in  the  goods,  and  the  terms  of  the  order 
have  been  adverted  to  in  support  of  that  argument;  but  I  think  that 
the  goods  became  his  property  as  soon  as  they  were  sent  off  by  Mason 
&  Co.  When  goods  are  to  be  delivered  at  a  distance  from  the  vendor, 
and  no  charge  is  made  by  him  for  the  carriage,  the}'  become  the  property 
of  the  buyer  as  soon  as  the}'  are  sent  off.  It  was  next  contended  that 
Fragano  was  not  liable  to  the  vendor  unless  the  goods  arrived  ;  but  the 
older  for  insurance  is  decisive  as  to  that.  The  policy  was  to  protect 
Fragano,  and  shows  that  he  considered  he  should  be  the  sufferer  if  the 
goods  were  lost  on  the  voyage,  which  he  could  not  have  been,  had  the 
arrival  of  the  goods  been  a  condition  precedent  to  his  liability  to  the 
vendors.  The  expiration  of  three  months  was  to  be  the  time  of  payment 
if  the  goods  arrived  ;  if  they  did  not  arrive,  the  law  would  imply  a 
promise  to  pay  in  a  reasonable  time. 

Littledale,  J.,  concurred.  Mule  discharged. 


ATKINSON   and   Others,    Assignees   of   Sleddon,   v.  BELL   and 

Others. 

In  the  King's  Bench,  Easter  Term,  1828. 

[Reported  in  8  Barnewall  $•  Cresswell,  277.] 

Assumpsit  for  goods  sold  and  delivered,  goods  bargained  and  sold, 
work  and  labor,  and  materials  found  and  provided.  At  the  trial  before 
Hullock,  B.,  at  the  summer  assizes  for  Lancaster,  1827,  it  appeared  that 
the  defendants  were  linen  and  thread  manufacturers  at  Whitehaven,  in 
Cumberland.  The  bankrupt,  Sleddon,  before  his  bankruptcy  was  a 
machine-maker,  residing  at  Preston,  in  Lancashire.  One  Kay,  of  Pres- 
ton, obtained  a  patent  for  a  new  mode  of  spinning  flax,  and  the  defend- 
ants, being  desirous  of  trying  the  effect  of  it,  on  the  12th  November, 
1825,  by  letter  ordered  him  to  procure  to  be  made  for  them  as  soon  as 
possible  a  preparing-frame  and  two  spinning-frames,  in  the  manner  he 
most  approved  of.  In  January,  1826,  Kay  ordered  two  spinning-frames 
and  a  roving-frame  to  be  made  by  Sleddon  for  the  defendants,  and 
informed  them  that  he  had  so  done.  These  machines  were  formed  on 
Kay's  first  plan,  and  completed  at  the  end  of  March  ;  and  after  they  had 
been  so  completed  they  lav  in  Sleddon's  premises  a  month,  while  two 
other  machines  of  these  defendants,  intended  to  be  used  in  the  same 
mills,  were  altered  by  Sleddon,  under  Kay's  superintendence :  and 
when  those  had  been  completed  to  his  mind,  he  ordered  the  machines 
in  question  to  be  altered  in  the  same  manner.  They  were  altered 
accordingly,  packed  in  boxes  by  Kay's  directions,  and  remained  on 
Sleddon's  premises.     On  the  23d  of  June,  1826,  Sleddon  wrote  to  the 


128  ATKINSON    V.    BELL.  [CHAP.  II. 

defendants,  and  informed  them  that  the  two  frames  had  been  ready  for 
the  last  three  weeks,  and  begged  to  know  b\-  what  conveyance  they 
were  to  be  sent.  On  the  8th  of  August  a  commission  of  bankrupt 
issued  against  Sleddon,  under  which  he  was  duly  declared  a  bankrupt. 
The  assignees  afterwards  required  the  defendants  to  take  the  frames, 
but  they  refused  to  do  so.  It  was  objected  on  the  part  of  the  defend- 
ants, that  the  action  was  not  maintainable  for  goods  bargained  and 
sold,  because  the  property  in  the  frames  had  never  vested  in  the  defend- 
ants. The  learned  judge  was  of  opinion  that  the  action  was  not  main- 
tainable, and  he  directed  a  nonsuit  to  be  entered,  with  liberty  to  the 
plaintiffs  to  move  to  enter  a  verdict  for  the  price  of  the  machines.  A 
rule  nisi  having  been  obtained  for  that  purpose, 

Broxigliam  and  Parke  now  showed  cause. 

Cross,  Serjt.,  and  Tomlinson,  contra. 

Bayley,  J.  I  think  the  rule  for  entering  a  verdict  for  the  plaintiff 
ought  to  be  discharged.  If  the  declaration  had  contained  a  count  for 
not  accepting  the  machines,  the  plaintiffs  might  have  been  entitled  to 
recover;  and  I  think  now  that,  upon  payment  of  costs,  they  should  lie 
allowed  to  set  aside  the  nonsuit,  and  add  other  counts  to  the  declara- 
tion, and  have  a  new  trial.  But  I  cannot  sa\-  that  the  property  passed 
to  the  defendants,  so  as  to  enable  the  plaintiffs  to  recover  on  the  counts 
for  goods  bargained  and  sold,  or  for  work  and  labor.  It  is  said,  that 
there  was  an  appropriation  of  these  specific  machines  by  the  maker, 
and  that  the  property  thereby  vested  in  the  defendants.  I  think  it  did 
not  pass.  Where  goods  are  ordered  to  be  made,  while  they  are  in  prog- 
ress, the  materials  belong  to  the  maker.  The  property  does  not  vest 
in  the  party  who  gives  the  cfrder  nntil  the  thing  ordered  is  completed. 
And  although  while  the  goods  are  in  progress  the  maker  may  intend 
them  for  the  person  ordering,  still  he  may  afterwards  deliver  them  to 
another,  and  thereby  vest  the  property  in  that  other.  Although  the 
maker  may  thereby  render  himself  liable  to  an  action  for  so  doing, 
still  a  good  title  is  given  to  the  party  to  whom  the}-  are  delivered.  It 
is  true  that  Kay  saw  these  things  while  they  were  in  progress,  and 
knew  that  the  bankrupt  intended  them  for  the  defendants;  yet  they 
might  afterwards  have  been  delivered  to  a  third  person.  This  case  is 
not  affected  by  the  argument  that  these  are  patent  articles,  because  they 
might  have  been  delivered  to  a  third  person  with  Kay's  assent.  The 
case  of  Woods  v.  Russell,  5  B.  &  A.  942,  is  distinguishable.  The  founda- 
tion of  that  decision  was,  that  as  b}T  the  contract  given  portions  of  the 
price  were  to  be  paid  according  to  the  progress  of  the  work,  by  the 
payment  of  those  portions  of  the  price  the  ship  was  irrevocably  appro- 
priated to  the  person  paying  the  money.  That  was  a  purchase  of  the 
specific  articles  of  which  the  ship  was  made.  Besides,  there  the  ship- 
builder had  signed  the  certificate  to  enable  the  purchaser  to  have  the 
ship  registered  in  his  name  ;  the  legal  effect  of  which  was  held  to  be  to 
vest  the  general  property  in  the  purchaser.  If  in  this  case  an  execution 
had  issued  against  Sleddon,  the  sheriff  might  have  seized  the  machines. 


SKCT.  V.]  ATKINSON    V.    BELL.  129 

The}'  were  Sleddon's  goods,  although  they  were  intended  for  the  de- 
fendants, and  he  had  written  to  tell  them  so.  If  they  had  expressed  their 
assent,  then  this  ease  would  have  been  within  Rohde  v.  Thwaites,  0  B. 
&  C.  388,  and  there  would  have  been  a  complete  appropriation  vesting 
the  property  in  the  defendants.  But  there  was  not  any  sueh  assent 
to  the  appropriation  made  by  the  bankrupt,  and  therefore  no  action  for 
goods  bargained  and  sold  was  maintainable.  Then  as  to  the  counts 
for  work  and  labor,  if  you  employ  a  man  to  build  a  house  on  your  hind, 
or  to  make  a  chattel  with  your  materials,  the  party  who  does  the  work 
has  no  power  to  appropriate  the  produce  of  his  labor  and  your  mute- 
rials  to  any  other  person.  Having  bestowed  his  labor  at  your  request 
on  3-our  materials,  he  ma}'  maintain  an  action  against  you  for  work 
and  labor.  But  if  you  employ  another  to  work  up  his  own  materials 
in  making  a  chattel,  then  he  may  appropriate  the  produce  of  that  labor 
and  materials  to  an}7  other  person.  No  right  to  maintain  any  action 
vests  in  him  during  the  progress  of  the  work  ;  but  when  the  chattel 
has  assumed  the  character  bargained  for,  and  the  employer  accepted  it, 
the  partly  employed  may  maintain  an  action  for  goods  sold  and  de- 
livered, or,  if  the  employer  refuses  to  accept,  a  special  action  on  the 
case  for  such  refusal.  But  he  cannot  maintain  an  action  for  work  and 
labor,  because  his  labor  was  bestowed  on  his  own  materials,  and  for 
himself,  and  not  for  the  person  who  employed  him.  I  think  that  in  this 
case  the  plaintiff  cannot  recover  on  the  count  for  work  and  labor. 

Holroyd,  J.  I  think  that  on  the  facts  given  in  evidence  a  verdict 
might  have  been  sustained  on  a  count  for  not  accepting  the  machines. 
I  have  entertained  great  doubt  during  the  argument,  whether  a  verdict 
might  not  be  sustained  on  the  count  for  work  and  labor  and  materials 
found.  I  think  it  will  not  lie  for  goods  bargained  and  sold,  because 
there  was  no  specific  appropriation  of  the  machines  assented  to  by  the 
purchaser,  and  the  property  in  the  goods,  therefore,  remained  in  the 
maker.  Then  as  to  work  and  labor,  the  work  was  done,  and  the  labor 
bestowed  on  the  materials  of  the  maker  in  manufacturing  an  article 
which  never  became  the  property  of  the  defendants.  I  am  of  opinion, 
therefore,  that  the  work  was  done  for  the  bankrupt,  and  not  for  the 
defendant. 

Littledale,  J.  I  am  of  the  same  opinion.  Goods  bargained  and 
sold  will  not  lie  unless  there  be  a  sale.  There  could  not  be  any  sale 
in  this  case,  unless  there  was  an  assent  bj'  the  defendants  to  take  the 
articles.  Here  there  was  no  assent.  The  property  must  be  changed, 
to  make  the  action  maintainable.  If  the  property  had  been  changed, 
the  maker  could  not  have  delivered  these  machines  to  any  one  but 
the  defendants.  I  think,  however,  he  might  have  delivered  them  to 
another,  notwithstanding  anything  that  passed,  and  that  the  defend- 
ants could  not  have  maintained  trover  against  the  party  to  whom  the}T 
were  delivered.  In  the  case  of  an  execution  or  a  bankruptcy,  these 
machines  must  have  been  treated  as  the  goods  of  the  maker.  As  to 
the  count  for  work  and  labor  and  materials,  the  labor  was  bestowed, 

9 


130  ALEXANDER   V.   GARDNER.  [CHAP.  II. 

and  the  materials  were  found,  for  the  purpose  of  ultimately  effecting  a 
sale,  and  if  that  purpose  was  never  completed,  the  contract  was  not 
executed,  and  then  work  and  labor  will  not  lie.  The  work  and  labor 
and  the  materials  were  for  the  benefit  of  the  machine-maker,  and  not 
for  the  defendants.  Hide  absolute,  on  payment  of  costs. 


ALEXANDER  and   Another  v.   GARDNER  and  Another. 
In  the  Common  Pleas,  May  6,  1835. 

[Reported  in  1  Bingham's  New  Cases,  671.] 

Assumpsit  for  goods  bargained  and  sold  under  the  following  circum- 
stances :  — 

The  plaintiffs,  merchants  in  London,  and  agents  for  Irish  houses  in 

the  sale  of  butter,  being  in  expectation  of  a  cargo  from  Murphy,  of 

Sligo,  entered,  by  means  of  their  broker,  into  the  following  contract 

with  the  defendants  :  — 

London,  October  11, 1833. 

Sold  to  Messrs.  William  Gardner*  &  Son,  for  account  of  Messrs. 
Alexander  &  Co.,  200  firkins  Murphy  &  Co.'s  Sligo  butter,  at  71s.  6d. 
per  cwt.  free  on  board  for  first  quality  ;  4s.  and  6s.  difference  for  inferiors. 
Payment,  bill  at  two  months  from  the  date  of  landing.  To  be  shipped 
this  month.  An  average  for  weights  and  tares  within  six  days  of  land- 
ing, if  required. 

On  the  11th  of  November,  the  plaintiffs  received  from  Murphy  the  in- 
voice and  bill  of  lading  of  these  butters  ;  and  also  the  intelligence  that, 
owing  to  there  having  been  no  ship  in  the  port  of  Sligo  bound  for  Lon- 
don, "he  butter  had  not  been  shipped  till  the  6th  of  November. 

This  circumstance  was  immediately  communicated  to  the  defendants, 
who  at  first  refused  to  abide  by  the  contract,  on  the  ground  that  the  but- 
ters were  to  have  been  shipped  in  October.  In  a  little  time,  however, 
they  abandoned  their  objection,  and  consented  to  retain  the  invoice 
and  bill  of  lading  which  had  been  delivered  to  them  on  the  12th  of 
November. 

The  invoice  which  described  the  butters  in  detail  as  to  weight,  number 
of  casks,  &c,  was  addressed  to  the  plaintiffs,  but  upon  handing  it  over, 
their  name  had  been  struck  out,  and  the  name  of  the  defendants  substi- 
tuted, as  is  usual  in  the  trade. 

The  bill  of  lading  described  the  casks  by  their  marks  and  several 
quantities,  and  directed  them  to  be  delivered  to  the  plaintiffs. 

In  December,  1833,  the  greatest  part  of  the  butters  was  lost  by  ship- 
wreck on  the  coast  of  Galway,  and  a  small  part  of  them  arrived  in  a 
damaged  state;  whereupon  the  defendants,  not  having  effected  any 
insurance,  refused  to  pay. 


SECT.  V.J  ALEXANDER   V.    GAEDNEB.  131 

At  the  trial  before  Tindal,  C.  J.,  it  was  contended  on  their  part  that, 
under  the  circumstances  above  stated,  the  action  for  goods  bargained 
and  sold  did  not  lie  ;  and  that  the  plaintiffs,  in  order  to  recover,  should 
have  declared  specially  on  the  contract  of  the  11th  of  October,  alleging 
and  proving  that  the  goods  bad  been  shipped  in  October,  and  duly 
landed  ;  since,  according  to  the  contract,  payment  was  not  to  be  made 
till  two  months  after  landing. 

The  jury  found  that  the  condition  for  shipping  in  October  had  been 
waived  by  the  defendants,  and  returned  a  verdict  for  £'414,  the  contract 
price  of  the  butters. 

Talfourd,  Serjt.,  pursuant  to  leave  reserved  at  the  trial,  obtained  a  rule 
nisi  for  setting  aside  this  verdict,  and  entering  a  nonsuit  on  the  ground 
above  stated.  He  relied  mainly  on  Simmons  v.  Swift,  5  B.  &  C.  857, 
where  the  owner  of  a  stack  of  bark  entered  into  a  contract  to  sell  it  at  a 
certain  price  per  ton,  and  the  purchaser  agreed  to  take  and  pay  for  it 
on  a  day  specified,  and  a  part  was  afterwards  weighed  and  delivered 
to  him  ;  it  was  held,  that  the  property  in  the  residue  did  not  vest  in  the 
purchaser  until  it  had  been  weighed,  that  being  necessary  in  order  to 
ascertain  the  amount  to  be  paid  ;  and  that,  even  if  it  had  vested,  the 
seller  could  not,  before  that  act  had  been  done,  maintain  an  action  for 
goods  sold  and  delivered.  From  that  case  it  followed  that  an  action 
for  goods  bargained  and  sold  will  not  lie,  unless  the  property  in  the 
goods  passes  to  the  purchaser  at  the  time  of  the  bargain.  But  so  far 
was  the  propert}'  here  from  passing  to  the  defendants  at  the  time  of 
the  bargain,  that  at  that  time  the  goods  were  not  in  the  plaintiffs9 
hands,  or,  for  aught  that  appeared,  in  existence.  And  the  principle 
established  by  Goss  v.  Lord  Nugent,  5  B.  &  Adol.  58,  that  when  the 
time  for  delivery  is  fixed  by  a  written  contract,  it  cannot  be  extended 
by  oral  agreement,  afforded  a  strong  argument  to  show  that  the  plain- 
tiffs should  have  set  out  in  their  declaration  the  special  circumstances 
of  their  demand. 

Bompas,  Serjt.,  and  Martin  showed  cause. 

Talfourd  and  Kelly  in  support  of  the  rule. 

Tindal,  C.  J.  The  question  in  this  cause  is,  whether  an  action  for 
goods  bargained  and  sold  is  maintainable  against  the  defendants.  They 
contend  that  such  an  action  does  not  lie  against  them,  but  that  under 
the  circumstances  of  the  case,  the  plaintiffs  should  have  declared 
specially. 

The  original  contract  was  made  on  the  11th  of  October.  1833.  in 
which  contract  it  is  stated  that  the  plaintiffs  sold  to  the  defendants 
200  firkins  of  Sligo  butter,  free  on  board,  at  l\s.  6rf.  per  cwt.  ;  that  the 
goods  were  to  be  shipped  in  the  course  of  that  month,  and  that  pay- 
ment was  to  be  by  a  bill  of  exchange,  payable  two  months  after  the 
landing  of  the  gooiN. 

Upon  this  contract  three  object  ions  have  been  raised  to  the  action  for 
goods  bargained  and  sold. 

First,  that  the  butters  were  not  in  the  possession  of  the  plaintiffs  at 
the  time  of  the  contract. 


132  ALEXANDER    V.    GARDNER.  [CHAP.  II. 

Secondly,  that  they  were  not  shipped  in  October  as  the  contract  re- 
quired ;  and, 

Thirdly,  that  as  the  payment  was  to  be  at  two  months  after  the  land- 
ing of  the  goods,  and  as  the  goods  were  never  landed,  such  payment 
could  not  be  required. 

Notwithstanding  these  objections,  I  think  the  contract  was  to  pay  for 
goods  bargained  and  sold,  and  that  the  declaration  to  that  effect  is  in  the 
proper  form.  And  I  agree  that  the  plaintiffs  must  show  that  the  prop- 
erty in  the  goods  passed  to  the  defendants  by  the  contract ;  for,  unless  it 
did,  the  goods  were  not  bargained  and  sold  to  them. 

But  as  to  the  first  objection,  if  the  goods  were  ascertained  and  accepted, 
before  the  action  was  brought,  it  is  no  objection  that  they  were  not  in 
the  possession  of  the  plaintiffs  at  the  time  of  the  contract.  In  Rohde  v. 
Thwaites,  6  B.  &  C.  388,  the  vendor,  having  in  his  warehouse  a  quan- 
tity of  sugar  in  bulk,  agreed  to  sell  twenty  hogsheads  :  four  hogsheads 
were  delivered  ;  the  vendor  filled  up  and  appropriated  to  the  vendee 
sixteen  other  hogsheads  ;  informed  him  that  they  were  ready,  and  de- 
sired him  to  take  them  away  ;  the  vendee  said  he  would  take  them  as 
soon  as  he  could ;  and  it  was  held  that  the  appropriation  having 
been  made  by  the  vendor  and  assented  to  by  the  vendee,  the  six- 
teen hogsheads  thereby  passed  to  the  latter ;  and  that  their  value 
might  be  recovered  by  the  vendor  under  a  count  for  goods  bargained 
and  sold. 

Here  it  is  impossible  to  say  that  the  goods  were  not  ascertained  and 
accepted  before  the  action  was  brought ;  for  the  quantity,  quality,  and 
price  were  all  specified  in  the  invoice ;  and  the  bill  of  lading  was 
regularly  indorsed  to  and  accepted  by  the  defendants. 

But  then  it  is  said  that  the  shipping  of  the  goods  in  October  was  a 
condition  precedent  to  any  claim  on  the  defendants.  If  the  defend- 
ants had  in  the  first  instance  repudiated  the  bargain  on  that  ground,  it 
is  true  no  action  would  have  lain  against  them.  But  it  is  found  by  the 
jury  that  they  waived  the  objection  ;  and  this  being  only  a  parol  con- 
tract,  if  the  party  waives  the  condition  he  is  in  the  same  situation  as  if 
it  had  never  existed. 

The  third  objection  to  the  plaintiffs'  recovery  is,  that  the  butters 
were  to  be  paid  for  by  a  bill  at  two  months  after  landing.  But  the  ob- 
ject of  that  stipulation  was  merely  to  fix  the  time  of  payment,  and  not 
to  make  the  landing  a  condition  precedent.  For  that  point  it  is  enough 
to  refer  to  the  decision  in  Fraganov.  Long. 

The  present  case,  therefore,  is  brought  within  the  result  of  all  the 
decisions,  as  stated  by  Serjeant  Williams,  in  the  note  2  Wms.  Saund. 
269  b. 

lien-  the  action  was  not  brought  till  long  after  the  two  months  which 
would  have  succeeded  the  landing  of  the  goods,  if  they  had  arrived  in 
the  ordinary  course.  The  plaintiffs,  therefore,  being  in  the  situation  of 
one  who  has  parted  with  his  goods,  and  the  defendants  of  one  who  has 
received  them  upon  an  engagement  to  pay,  the  action  will  lie,  and  this 
rule  must  be  discharged. 


SECT.  V.]  ALEXANDER  V.   GARDNER  133 

Park,  J.  I  entirely  concur.  The  condition  for  shipping  the  goods 
in  October  having  been  waived,  the  question  is,  whether  an  action  lies 
for  goods  bargained  and  sold  ;  and  that  turns  on  the  question  wbether 
or  not  there  has  been  an  acceptance  of  the  goods  by  the  defendants.  I 
think  there  has,  and  that  an  action  might  have  been  maintained  even  for 
goods  sold  and  delivered  ;  but  it  is  sufficient  to  say  that  the  right  to  sue 
for  goods  bargained  and  sold  is  complete.  The  defendants'  argument 
turns  on  the  principle,  that  goods  sold  remain  at  the  risk  of  the  vendor, 
till  everything  is  done  to  complete  the  contract:  Ilinde  v.  Whitehouse, 
7  East,  558  ;  or  till  a  specific  appropriation  has  taken  place.  But  that 
having  been  effected  here  by  the  transfer  of  the  bill  of  lading,  the  case 
falls  within  the  principle  of  Rohde  v.  Thwaites  and  Fragano  v.  Long. 
We  have  been  pressed  with  the  authority  of  Simmons  o.  Swift.  There 
the  owner  of  a  stack  of  bark  entered  into  a  contract  to  sell  it  at  a  cer- 
tain price  per  ton,  and  the  purchaser  agreed  to  take  and  pay  for  it  on 
a  day  specified  ;  and  a  part  was  afterwards  weighed  and  delivered  to 
him  :  it  was  held  that  the  residue  did  not  vest  in  the  purchaser  until  it 
had  been  weighed,  that  being  necessary  in  order  to  ascertain  the  amount 
to  be  paid  ;  and  that,  even  if  it  had  been  vested,  the  seller  could  not, 
before  that  act  had  been  done,  maintain  an  action  for  goods  sold  and 
delivered.  In  that  I  entirely  concur.  But  see  what  the  case  was  in  Rohde 
v.  Thwaites.  There  the  vendor,  having  in  his  warehouse  a  quantity  of 
sugar  in  bulk,  agreed  to  sell  twenty  hogsheads  :  four  hogsheads  were 
delivered  to  the  vendee  ;  the  vendor  filled  up  and  appropriated  to  the 
vendee  sixteen  other  hogsheads,  informed  him  that  they  were  ready, 
and  desired  him  to  take  them  away.  The  vendee  said  he  would  take 
them  as  soon  as  he  could.  It  was  held,  that  the  appropriation  hav- 
ing been  made  and  assented  to,  the  property  in  the  sixteen  hogsheads 
passed  to  the  vendee,  and  that  their  value  might  be  recovered  bj-  the 
vendor  under  a  count  for  goods  bargained  and  sold.  And  the  argu- 
ment that  the  arrival  and  landing  of  the  goods  was  to  be  a  condition 
precedent  to  payment,  is  answered  by  Fragano  v.  Long.  There  the 
vendee,  resident  at  Naples,  sent  an  order  to  the  vendors,  hardwaremen 
at  Birmingham,  "  to  despatch  to  him  certain  goods,  on  insurance  being 
effected ;  terms,  three  months'  credit  from  the  time  of  arrival."  The 
vendors  despatched  the  goods  b}*  the  canal  to  Liverpool,  and  effected 
an  insurance,  declaring  the  interest  to  be  in  the  vendee  :  at  Liverpool 
the  goods  were  delivered  by  the  agent  of  the  vendors  to  the  owner  of 
a  vessel  bound  to  Naples,  through  whose  negligence  they  were  much 
damaged  :  it  was  held,  that  the  property  in  the  goods  vested  in  the 
vendee  as  soon  as  they  were  despatched  from  Birmingham;  that  the 
terms  of  the  order  did  not  make  the  arrival  of  the  goods  at  Naples  a 
condition  precedent  to  a  liability  to  pay  for  them  ;  and  that  the  vendee 
might  therefore  maintain  an  action  for  the  injury  done  to  the  goods 
through  the  negligence  of  the  ship-owner. 

That  case,  therefore,  and  the  case  of  Rohde  v.  Thwaites.  entirely 
warrant  our  present  decision. 


134  TRIPP   V.    ARMITAGE.  [CHAP.  II. 

Gaselee,  J.  The  chief  justice  and  my  brother  Park  having  gone  so 
f ii  1 1  v  into  the  case,  I  shall  only  observe  that  here  the  invoice  specifies 
the  weight  and  price  of  all  the  goods. 

Bosanquet,  J.  I  think  that  this  was  a  contract  executed,  and  that 
therefore  the  plaintiff  has  properly  declared  for  goods  bargained  and 
sold.  It  is  not  necessary  for  the  support  of  such  an  action  that  the 
goods  should  be  actually  in  the  possession  of  the  vendor.  Here  he  was 
entitled  to  the  possession,  and  has  done  all  that  was  required  on  his 
part  to  render  the  transfer  effectual.  It  is  said  he  should  have  declared 
specially,  showing  the  performance  of  the  condition  precedent  as  to  the 
time  of  shipping,  or  a  waiver  of  it  in  writing.  If  the  contract  contain- 
ing the  condition  had  been  by  deed,  that  doctrine  might  have  applied, 
but  this  was  a  parol  contract,  and  the  condition  might  be  waived  with- 
out a  writing.  A  contract  must  be  declared  on  according  to  its  legal 
effect ;  and  the  effect  of  all  the  circumstances  here  is,  to  render  it  a  con- 
tract without  a  condition.  The  objection  that  the  arrival  of  the  goods 
was  a  condition  precedent  to  payment,  is  answered  by  the  case  of 
Fragano  v.  Long,  where  it  was  decided  that  the  property  in  the  goods 
vested  in  the  vendee  as  soon  as  they  were  despatched  from  Birming- 
ham ;  that  the  terms  of  the  order  did  not  make  the  arrival  of  the  goods 
at  Naples  a  condition  precedent  to  the  vendee's  liability  to  pay  for 
them  ;  and  that  he  might  therefore  maintain  an  action  for  the  injury 
done  to  the  goods  through  the  negligence,  of  the  ship-owner.  Here, 
the  time  for  arrival  of  the  goods  having  long  since  elapsed,  the  time  for 
payment  must  also  be  arrived  if  there  was  to  be  any  payment  at  all,  and 
that  there  was  to  be  a  payment  is  decided  by  Fragano  v.  Long. 

Rule  discharged. 


TRIPP  and  Others,  Assignees  of  Bennett,  a  Bankrupt  v.  ARMI- 
TAGE and  Others. 

In  the  Exchequer,  Hilary  Term,  1839. 

[Reported  in  4  Meeson  <j-  Welshy,  687.] 

Trover  for  deal  sashes,  linings,  shutters,  boards,  and  other  building 
materials.  Pleas,  first,  except  as  to  certain  doors,  linings,  boards,  &c, 
specified  in  the  plea,  not  guilty;  secondly,  as  to  the  causes  of  action 
to  which  the  first  plea  was  pleaded,  that  the  plaintiffs  were  not  pos- 
sessed of  their  own  property  as  assignees  of  the  goods  and  chattels 
to  which  the  first  plea  was  pleaded,  or  any  part  thereof,  in  manner  and 
form,  ^c.  ;  thirdly,  as  to  the  causes  of  action  relating  to  the  conversion 
of  the  goods  and  chattels  particularly  mentioned  in  and  excepted  by 
the  first  plea,  payment,  into  court  of  £129,  which  the  plaintiffs  took  out 
of  court  in  discharge  of  those  causes  of  action.  At  the  trial  before 
Lord  Abinger,  C.  B.,  at  the  last  Gloucestershire  Assizes,  the  following 
appeared  to  be  the  facts  of  the  case  :  — 


SECT.  V.]  TRIPP   V.    Alt.MITAGE.  135 

In  the  year  1837,  a  company  was  formed  for  the  erection  of  a  new- 
hotel  in  Cheltenham,  and  a  deed  was  executed  for  regulating  the  affairs 
of  the  company,  by  which  the  defendants  were  appointed  trustees. 
Advertisements  having  been  issued  for  tenders  for  building  the  hotel, 
the  bankrupt,  Bennett,  who  then  carried  on  business  as  a  builder  and 
timber-merchant  in  Cheltenham,  sent  in  a  tender,  and  entered  into  a 
written  contract  with  the  defendants,  therein  described  as  trustees  of 
the  Cheltenham  Hotel  Company,  dated  3d  March,  1837  ;  by  which, 
after  reciting  that  Messrs.  Churchill  &  Mallory  had  agreed  to  do  the 
smith's  and  ironmongery  work,  and  Mark  Barrett  the  painting,  plumb- 
ing, and  glazing,  by  agreements  of  even  date  therewith,  and  that  Ben- 
nett had  agreed  to  do  all  the  work,  save  as  aforesaid,  at  the  price  of 
£15,381  8s.  Ad. ;  it  was  witnessed  that  Bennett  thereby  covenanted  for 
himself,  his  heirs,  executors  and  administrators,  with  the  defendants, 
that  he  would  build  the  hotel  (except  as  aforesaid),  and  render  the 
same  fit  for  habitation,  to  the  satisfaction  of  R.  W.  Jearrad  (the  archi- 
tect employed  b}T  the  defendants),  by  the  times  therein  mentioned 
(enumerating  various  times  by  which  specified  portions  of  the  work 
were  to  be  completed) ;  that,  should  Bennett  neglect  to  complete  any  one 
portion  of  the  work  by  the  time  therein  appointed,  or  several  portions 
of  the  works  by  the  times  therein  respectively  appointed,  he  should  for- 
feit and  pay  the  sum  of  £250  as  liquidated  damages,  and  the  defendants 
should  be  entitled  to  set  it  off,  &c.  The  agreement  then  contained  the 
following  clause:  "And  further,  that,  should  the  said  T.  H.  Bennett, 
his  executors  or  administrators,  at  any  time  or  times,  omit  to  go  on 
with,  or  neglect  to  do  the  said  works,  matters,  and  things  hereby  agreed 
to  be  done  by  him,  so  expeditiously  as  he  might  do  in  the  judgment  of 
the  said  R.  W.  Jearrad,  or  the  said  architect  of  the  said  company  for 
the  time  being,  or  in  case  the  said  T.  II.  Bennett  should  become  bank- 
rupt, or  insolvent,  or  being  arrested  should  go  to  gaol,  before  the  said 
work  should  be  completed  and  finished,  then  and  in  any  or  either  of  such 
cases,  it  should  and  might  be  lawful  to  and  for  the  said  trustees,  their 
heirs  or  assigns,  to  take  possession  of  the  work  then  already  done  by  the 
said  T.  II.  Bennett,  and  to  avoid  and  put  an  end  to  that  agreement ;  and 
thereupon  the  several  clauses  and  agreements  therein  contained  on  the 
part  of  the  said  trustees  should  be  absolutely  null  and  void,  to  all  intents 
and  purposes  whatsoever;  and  further,  that  the  said  trustees  should  pay 
to  the  said  T.  II.  Bennett,  his  executors  or  administrators,  or  his  or  their 
assignee  or  assignees,  as  the  case  might  be,  so  much  money,  and  only  so 
much  money,  as  the  said  R.  W.  Jearrad.  or  other,  the  architect  for  the 
time  being  of  the  said  company,  should  adjudge  to  be  the  fair  worth  of 
the  work  actually  done  and  fixed  by  the  said  T.  H.  Bennett,  his  execu- 
tors or  administrators,  to  the  hotel,  as  compared  with  the  whole  work 
to  be  done  for  the  said  price  of  £15,381  8*.  id."  Proviso,  that  should 
the  trustees  require  any  additions  to  or  alterations  in  the  buildings,  or 
the  mode  of  doing  the  same,  and  should  by  writing  under  the  hand  of 
one  of  them,  countersigned  by  Jearrad,  direct  the  same  to  be  done,  then 


136  TRIPP   V.   AfiMITAGE.  [CHAP.  II. 

such  additions  or  variations  should  be  made,  but  should  not  in  any 
respect  vacate,  alter,  annul,  or  make  void  the  agreement,  but  the  dif- 
ference caused  by  such  additions  or  variations  should  be  valued  by 
Jearrad,  and  should  be  paid  to  or  allowed  by  Bennett,  as  the  case 
might  be.  The  trustees  then  covenanted  to  pay  the  money  Iry  instal- 
ments, at  certain  dates  corresponding  with  the  times  at  which  the  speci- 
fied works  were  to  be  performed.  There  was  also  a  proviso,  making  the 
doing  of  the  works  conditions  precedent  to  payment,  and  the  architect's 
certificate  indispensable.  Certain  additional  works  were  contemplated 
as  the  building  proceeded,  which  Bennett  also  undertook  at  stipulated 
prices.  Previously  to  the  month  of  September,  1837,  Bennett  received 
the  live  first  instalments  as  they  became  due,  upon  a  certificate  of  Jear- 
rad, the  architect,  that  the  work  had  been  done.  In  that  month,  Ben- 
nett, being  pressed  for  mone\T,  applied  to  Jearrad  for  advances,  in 
anticipation  of  the  instalments  not  then  due  ;  and  being  required  to  give 
in  a  statement  of  the  works  done  in  part  of  the  contract,  he  furnished 
an  account,  containing,  among  other  items,  the  following:  "Bricks  on 
the  ground  {i.  e.  on  the  hotel  premises),  £140  ;  joiner's  work  prepared, 
£1,000."  The  trustees  thereupon  agreed  that  certain  advances  should 
be  made  to  Bennett,  on  the  security  of  all  the  materials  which  were  or 
should  be  brought  by  him  upon  the  premises  during  the  works,  and  he 
consequently  obtained  certificates  from  time  to  time  from  Jearrad,  under 
which  he  received  several  sums  of  mone}'  for  work  not  actually  done. 
During  the  progress  of  the  building,  one  Turnbull  was  the  clerk  of  the 
works,  and  the  course  of  business  was  for  him  to  inspect  every  article 
that  came  in  under  any  of  the  contracts,  and  none  were  received  except 
on  his  approval.  Some  sash-frames  for  the  windows  had  been  sent  in  by 
Bennett,  and  approved  of  by  Turnbull,  and,  before  the  bankruptcy,  had 
been  again  taken  from  the  premises  to  a  workshop  of  Bennett's,  for  the 
purpose  of  having  affixed  to  them  some  iron  pulleys,  which  had  been 
supplied  to  the  defendants  by  Churchman  &  Mallory,  under  their  con- 
tract. At  the  time  of  the  bankruptcy,  these  sash-frames,  with  the 
pulleys  affixed  to  them,  were  at  Bennett's  workshop. 

On  the  22d  of  November,  Bennett  committed  an  act  of  bankruptcy, 
on  which  a  fiat  subsequently  issued,  and  the  plaintiffs  were  appointed 
his  assignees.  Between  the  22d  and  the  2oth  of  November,  the  sash- 
frames,  to  which  the  pulleys  had  been  so  attached,  and  also  the  various 
articles  excepted  out  of  the  first  plea,  were  delivered  upon  the  premises 
of  the  company.  There  were  also  on  the  hotel  premises,  at  the  time  of 
the  bankruptcy,  a  large  quantity  of  other  materials  which  had  been  sent 
in  from  time  to  time  by  Bennett,  and  which  had  been  approved  of  by 
Turnbull,  and  were  in  a  prepared  state,  but  not  yet  fixed.  On  taking 
an  account  between  the  value  of  the  work  actually  done  and  fixed  at 
the  time  of  the  bankruptcy,  and  the  money  received  by  Bennett  up  to 
that  time,  it  appeared  that  he  had  been  paid  in  advance  about  £S00 
beyond  I  he  value  of  such  work.  The  present  action  was  brought  by 
the  assignees  to  recover  the  value  of  the  materials  which  were  upon  the 


SECT.  V.]  TKIPP   V.   ARMITAGE.  137 

premises,  unfixed,  at  the  time  of  the  bankruptcy,  of  the  sash-frames,  and 
of  the  other  materials  delivered  on  the  premises  after  the  bankruptcy. 
These  last,  however,  were  satisfied  by  the  £129  paid  into  court  and 
taken  out  by  the  plaintiffs.  On  the  materials  delivered  before  the  bank- 
ruptcy the  defendants  claimed  a  lien,  as  being  the  security  on  the  faith 
of  which  the  advances  had  been  made  by  Jearrad  to  the  bankrupt;  and 
the}'  also  claimed  the  property  in  the  sash-frames,  as  being  specific 
articles  which  had  been  appropriated  by  them,  and  approved  on  their 
part  by  Turnbull,  and  to  which  their  pulleys  had  been  attached.  The 
only  evidence  of  a  conversion  of  the  sash-frames  was  a  demand  and 
refusal,  the  demand  not  being  limited  in  terms  to  the  wood-work  of  the 
frames.  The  value  of  the  frames  with  the  pulleys  was  £9  ijs.  ;  of  the 
pulleys,  £1  9s.  The  learned  judge  directed  the  jury,  that  if  the  advances 
were  made  to  Bennett  on  the  understanding  and  agreement  that  the 
materials  brought  upon  the  premises  should  be  considered  as  a  pledge 
for  those  advances,  they  should  find  a  verdict  for  the  defendants  ;  and 
he  intimated  an  opinion  that  the  sash-frames  had  been  so  far  specifically 
appropriated  to  the  defendants  as  to  prevent  the  plaintiffs  from  recov- 
ering in  respect  of  them.  The  jury  found  a  verdict  for  the  defendants, 
and  the  learned  judge  gave  the  plaintiffs  leave  to  move  to  enter  a  ver- 
dict for  £9  5s.,  the  value  of  the  sash-frames. 

Maule  and  Greaves  showed  cause. 

R.  V.  Richards  (with  whom  were  Talfourd,  Serjt.,  and  W.  J.  Alex- 
ander), in  support  of  the  rule. 

Lord  Abingee,  C.  B.  I  have  been  much  disposed,  I  confess,  to 
endeavor  to  find  some  possible  ground  for  sustaining  the  verdict,  be- 
cause I  consider  this  to  be  one  of  the  hardest  cases  that  ever  occurred. 
The  defendants  undoubtedly  intended  to  pay  money  into  court  to  cover 
all  matters  on  which  there  was  an}'  doubt,  and  to  rest  only  upon  a 
defence  which  was  perfectly  clear;  and  on  a  great  part  of  their  case, 
amounting  to  several  hundred  pounds,  they  did  make  out  a  clear  de- 
fence ;  but  there  unfortunately  occurred-this  little  omission  with  respect 
to  these  sashes,  which  has  given  rise  to  the  whole  question  now  in  dis- 
pute. The  case  has  been  very  ably  and  ingeniously  argued  by  Mr. 
Maule,  but  I  cannot  at  all  adopt  the  first  ground  he  has  taken,  namely, 
that  by  reason  of  the  approbation  of  Turnbull,  the  clerk  of  the  works, 
and  the  application  of  the  pulleys  sent  by  the  defendants  to  be  fixed  to 
the  sashes,  the  propert}'  was  appropriated  to  the  defendants.  My  rea- 
son for  not  acceding  to  that  argument  is  shortly  this  :  that  this  is  not  a 
contract  for  the  sale  and  purchase  of  goods  as  movable  chattels;  it  is 
a  contract  to  make  up  materials,  and  to  fix  them  ;  and  until  they  are 
fixed,  by  the  nature  of  the  contract  the  property  will  not  pass.  It  is 
said  that  although  the  contract  be  general  in  the  first  instance,  yet  it 
may  become,  by  circumstances,  specific;  that  although  a  man  may 
agree  to  buy  goods  generally,  and  on  the  part  of  the  vendor  the  con- 
tract, may  be  complied  with  by  supplying  any  goods  lie  chooses  of  the 
description  named,  yet,  if  particular  goods  be  afterwards  pointed  out 


133  TEIPP   V.    AllMITAGE.  [CHAP.  II. 

and  designated  between  the  parties,  the  contract  is  thereby  modified, 
and  becomes  then  an  undertaking  to  supply  the  specific  goods,  the 
property  in  which  thereby  passes  to  the  vendee.  But  this  is  not  a  con- 
tract to  purchase  goods  at  all,  —  it  is  a  contract  for  several  works  to 
be  done.  Wherever  the  property  of  the  goods  passes  by  the  contract, 
and  has  become  vested  in  the  purchaser,  if  they  are  destroyed  b}-  any 
accident,  the  purchaser  would  be  responsible.  But  I  think  we  cannot 
say,  that,  if  these  sashes  had  been  destroyed,  the  purchasers,  that  is, 
the  defendants,  would  have  borne  the  loss;  they  are  not  bound  b}-  the 
contract  to  pay  for  anything  till  it  is  put  up  and  fixed  ;  and  if  destroyed 
by  fire,  or  in  any  way  abstracted  from  the  premises,  without  the  fault 
of  the  builder,  he  would  surely  have  a  right  to  recover  the  value  of 
such  goods  from  the  defendants.  I  think,  therefore,  that  from  the 
nature  of  this  contract,  the  property  remained  in  the  bankrupt,  although 
the  goods  had  been  approved  of  by  the  defendants.  That  approval 
does  not  mean  the  assent  of  the  parties  to  take  the  article  and  pay  for 
it  at  once,  but  merely  the  approval  of  it  as  a  proper  thing  to  be  put 
up.   .   .  . 

Parke,  B.  I  entirely  concur.  With  respect  to  the  first  point,  which 
has  been  insisted  upon  at  so  much  length  and  with  so  much  ingenuity 
and  ability  b}T  Mr.  Maule,  I  think  the  answer  is  a  very  short  one.  I 
admit  that  the  cases  which  have  been  cited  and  commented  upon  by 
him  are  perfectly  good  law :  but  there  is  one  most  material  distinction 
between  them  and  the  present,  viz.,  that  in  all  those  cases  there  was  a 
contract  with  respect  to  a  particular  chattel,  which  by  the  contract  was 
to  become  the  property  of  the  person  taking  it,  under  certain  circum- 
stances ;  but  in  this  case  there  is  no  contract  at  all  with  respect  to 
these  particular  chattels,  it  is  merely  parcel  of  a  larger  contract.  The 
contract  is,  that  the  bankrupt  shall  build  a  house  ;  that  he  shall  make, 
amongst  other  things,  window-frames  for  the  house,  and  fix  them  in  the 
house,  subject  to  the  approbation  of  a  surveyor;  and  it  was  never  in- 
tended by  this  contract,  that  the  articles  so  to  be  fixed  should  become 
the  property  of  the  defendants,  until  they  were  fixed  to  the  freehold. 
Il  is  said  that  the  approbation  of  the  surveyor  is  sufficient  to  consti- 
tute an  acceptance  by  the  defendants;  but  that  approbation  is  not 
given  eo  ammo  at  all ;  it  is  only  to  ascertain  that  they  are  such  mate- 
rials as  are  suitable  for  the  purpose  ;  and  notwithstanding  that  approval, 
it  is  only  when  they  have  been  put  up,  and  fixed  to  the  house,  in  per- 
formance of  the  larger  contract,  that  the}-  are  to  be  paid  for.  That 
appears  to  me  to  be  a  sufficient  answer  to  the  first  and  principal  point 
which  lias  been  argued  by  Mr.  Maule  against  the  rule.  .  .  . 

Gurnet,  \>.  T  am  of  the  same  opinion.  It  is  clear,  upon  this 
contract,  that  the  property  in  the  frames  had  not  passed  out  of  the 
bankrupt  to  the  defendants.  They  had  therefore  no  right  to  take 
possession  of  these  frames;  they  had  only  a  right  to  sever  the  pulleys 
from  the  frames,  which  they  have  not  done,  but  have  possessed  them- 
selves of  both  ;  and  they  make  their  own  default  in  not  severing  the  one 


SECT.  V.]  WILKIXS   V.   BROMHEAD.  139 

from  the  other,  the  ground  of  their  refusal  to  deliver  up  that  which  the 
assignees  were  entitled  to. 

ltule  absolute  to  enter  a  verdict  on  so  much  of  the  declaration 
as  applied  to  the  sash-frames ;  damages,  £7  16*. 


WILKINS   v.   BROMHEAD   and  BUTTON. 
In  the  Common  Pleas,  January  23,  1844. 

[Reported  in  G  Manning  <j-  Granger,  963.] 

Trover  against  the  defendants,  who  were  assignees  of  Smith  & 
Bryant,  bankrupts,  for  a  greenhouse  and  materials.  Pleas,  not  guilty, 
and  not  possessed  ;  on  both  of  whieh  pleas  issue  was  joined. 

At  the  trial  of  the  eause,  before  Coleridge,  J.,  at  the  last  Bristol 
summer  assizes,  it  appeared  that  the  plaintiff,  a  gentleman  residing 
near  Cardiff,  in  Glamorganshire,  in  October,  1841,  employed  the  bank- 
rupts Smith  &  Bryant,  who  were  carpenters  at  Bristol,  to  make  him  a 
greenhouse  for  the  price  of  £50  :  it  was  also  agreed  that  Smith  &  Bry- 
ant should  put  up  the  greenhouse  on  the  plaintiff's  premises  at  Cardiff, 
for  the  further  sum  of  £14  14s.  Smith  &  Bryant,  having  finished  the 
wood-work,  sent  the  sashes  to  a  glazier  of  the  name  of  Wait,  to  be 
glazed.  The  whole  work  being  completed,  but  not  permanently  fixed 
together,  Smith  &  Bryant,  in  June,  1842,  informed  the  plaintiff,  by 
letter,  that  the  greenhouse  was  ready  for  delivery,  and  requested  him 
to  remit  the  £50  "for  the  greenhouse "  through  Stuckey's  Banking 
Company.  The  plaintiff  remitted  the  £50,  and  wrote  to  request  Smith 
&  Bryant  "  to  keep  the  greenhouse,  and  take  care  of  it,  till  he  sent  for 
it."  In  February,  1843,  pending  an  aetion  against  Bryant,  the  whole 
was  sent  by  him  to  Wait  without  the  knowledge  of  the  plaintiff,  to 
secure  it  from  an  execution  against  Bryant.  Bryant  asked  Wait  to 
place  the  greenhouse  in  his  warehouse,  alleging  that  Smith  &  Bryant 
had  not  room  for  it  on  their  premises,  telling  him  also  that  it  was  the 
plaintiff's  property,  and  requesting  Wait  to  keep  it  till  he  sent  for  it, 
whieh  Wait  agreed  to  do.  On  the  14th  of  March  a  fiat  in  bankruptcy 
issued  against  Smith  &  Bryant,  under  whieh  the  defendants  were  ap- 
pointed assignees.  On  the  22d  of  April  the  greenhouse  was  removed 
by  Wait  to  the  premises  of  the  bankrupts,  and  was  taken  possession  of 
by  the  messenger  under  the  fiat. 

On  the  9th  of  May,  1843.  an  agent  of  the  plaintiff  made  a  demand  of 
the  greenhouse  upon  the  solicitor  of  the  fiat,  at  the  same  time  leaving 
with  him  a  written  demand,  addressed  to  the  defendants.  The  solici- 
tor, on  the  12th,  informed  the  plaintiff's  agent  that  the  opinion  of  coun- 
sel had  been  taken,  and  that  the  assignees  were  advised  not  to  give  up 
the  greenhouse  ;  ami  he  accepted  a  notice,  and  indorsed  a  refusal, 
dating  it  on  the  9th. 


140  WILKINS   V.   BROMHEAD.  [CHAP.  II. 

On  the  part  of  the  defendants  it  was  contended  that  there  was  no 
evidence  for  the  jury  of  the  plaintiff's  property  in  the  greenhouse;  and 
Atkinson  v.  Bell,  8  B.  &  C.  277,  2  Mann.  &  Kyi.  292,  was  cited  ;  and 
that  even  assuming  that  there  was  some  evidence  of  property  in  the 
plaintiff,  the  greenhouse,  at  the  time  of  the  Oat,  was  in  the  possession, 
order,  and  disposition  of  the  bankrupts,  with  the  consent  of  the  owner, 
within  the  6  G.  4,  c.  16,  §  72.  A  further  point  was  taken,  that  there 
was  no  evidence  of  a  conversion  by  the  defendants;  but  it  was  aban- 
doned on  the  argument. 

The  learned  judge  having  refused  to  nonsuit  the  plaintiff,  the  defend- 
ants' counsel  declined  to  address  the  jury,  who  were  directed  to  find 
for  the  plaintiff,  on  both  issues.  A  verdict  was  returned  accordingly, 
damages  £50  ;  leave  being  reserved  to  move  to  enter  a  nonsuit,  if  the 
court  should  think  either  objection  well  founded. 

Channell,  Serjt.  (with  whom  was  .Butt),  showed  cause. 

Sir  T.   Wilde  and  Bumjrns,  Serjts.,  in  support  of  the  rule. 

Tindal,  C.  J.  The  motion  before  the  court  proceeds  upon  two 
distinct  grounds :  the  first  ground  is,  that,  under  the  contract,  no 
property  in  the  greenhouse  in  question  passed  to  the  plaintiff;  the 
second,  admitting  that  the  property  did  pass  by  the  contract,  as  the 
greenhouse  remained  in  the  possession  of  the  bankrupts,  or  of  Wait, 
down  to  the  time  of  the  bankruptcy,  it  must  be  taken  to  be  property 
in  their  order  and  disposition,  as  reputed  owners,  with  the  consent  and 
permission  of  the  true  owner,  and,  consequently,  that  it  vested  in  their 
assignees.  As  to  the  first  point,  there  can  be  no  doubt  but  that  a  con- 
tract for  the  making  of  a  chattel  does  not  of  itself  vest  the  property  in 
the  chattel,  when  completed,  in  the  person  giving  the  order.  But  here 
the  question  turns,  not  upon  the  original  contract  between  the  plaintiff 
and  Smith  &  Bryant,  but  upon  the  circumstances  which  afterwards 
took  place,  viz.,  the  payment  by  the  plaintiff,  after  the  greenhouse  had 
been  completed,  of  the  stipulated  price,  the  appropriation  and  setting 
apart  by  the  bankrupts  of  the  greenhouse  for  the  plaintiff,  and  his 
assent  to  such  appropriation.  There  was  an  appropriation  on  the  one 
side,  and  an  assent  to  such  appropriation  on  the  other ;  which,  I  think, 
was  quite  sufficient  to  pass  the  property  to  the  plaintiff.  It  may  be 
that  the  original  contract  did  not  pass  the  property;  but  the  parties 
may  be  said  to  have  entered  into  a  new  contract.  1  cannot  conceive 
why,  under  the  circumstances  of  this  case,  the  property  in  an  article 
made  to  order  should  not  pass  upon  its  completion,  as  it  would  have 
done  if  it  had  been  in  existence  at  the  time  of  the  original  contract, 
The  objections  raised  upon  this  point  were  mainly  founded  upon  Atkin- 
son v.  P. ell,  8  B.  &  C.  277,  2  Mann.  &  Kyi.  292.  But,  if  that  case  be 
examined,  it  will  be  found  not  to  apply.  The  decision  there  turned 
entirely  on  the  absence  of  assent  on  the  part  of  the  purchasers  to  the 
appropriation  of  the  machines  l»y  the  vendor.  It  is  said,  by  Bayley, 
J.,  "These  were  Sleddon's  <roods,  although  they  were  intended  for  the 
defendants,  and  he  had  written  to  tell  them  so.     If  they  had  expressed 


SECT.  V.]  CUNLIFFE   V.    HARRISON.  141 

their  assent,  then  this  case  would  have  been  within  Rohde  v.  Thwaites, 
6  B.  &  C.  388,  9  Dowl.  &  Ryl.  203,  and  there  would  have  been  a  com- 
plete appropriation,  vesting  the  property  in  the  defendants.  But  there 
was  not  any  such  assent  to  the  appropriation  made  by  the  bankrupt ; 
and,  therefore,  no  action  for  goods  bargained  and  sold  was  maintain- 
able." Holroyd,  J.,  observes,  "  I  think  the  action  will  not  lie  for  goods 
bargained  and  sold,  because  there  was  no  specific  appropriation  of  the 
machines  assented  to  by  the  purchasers,  and  the  property  in  the  goods 
therefore  remained  in  the  maker."  And  Littledale  J.,  adds,  "There 
could  not  be  any  sale  in  this  ease,  unless  there  was  an  assent,  by  the 
defendants,  to  take  the  articles."  Looking  at  the  facts  of  this  case,  it 
seems  to  me  that  there  is  complete  evidence  of  assent,  on  the  part  of 
the  plaintiff,  to  the  appropriation  made  by  the  vendors.  The  plaintiff 
was  informed  by  letter  that  the  greenhouse  was  finished,  and  was 
requested  to  remit  the  price.  He  did  so,  at  the  same  time  requesting 
the  vendors  to  keep  the  greenhouse  for  him  until  he  sent  for  it.  It 
has  been  argued,  that  the  letter  of  the  plaintiff,  desiring  Smith  & 
Bryant  to  keep  the  greenhouse  for  him,  was  written  before  the  article 
was  seen,  and  that  it  would  be  hard  if  it  were  held  to  be  such  an  ac- 
ceptance as  would  preclude  him  from  rejecting  the  article  if  it  after- 
wards turned  out  defective  in  its  construction.  If  a  purchaser's  assent 
to  the  appropriation  was  shown  to  have  been  obtained  by  misrepresen- 
tation, it  seems  to  me  it  would  probably  be  held  to  be  no  assent  at  all. 
But  that  is  not  the  case  here;  and  although  the  plaintiff  thought  proper 
to  assent  to  the  appropriation  without  seeing  the  greenhouse,  the  assent 
was  not  the  less  complete.  Upon  this  point,  therefore,  I  think  that 
the  propert}'  vested  in  the  plaintiff,  so  as  to  enable  him  to  maintain 
this  action.   .  .  .  Hide  discharged.1 


CUNLIFFE   v.    HARRISON   and   Others. 
In  the  Exchequer,  June  24,  1851. 

[Reported  in  6  Exchequer  Reports,  903.] 

Assumpsit  for  goods  sold  and  delivered.  Plea,  noyi  assumpserunt, 
and  issue  thereon.  At  the  trial  before  Piatt,  B.,  at  the  last  Liverpool 
assizes,  it  appeared  that  the  action  was  brought  to  recover  the  sum  of 
£460,  the  price  of  ten  hogsheads  of  claret,  as  sold  to  the  defendants 
under  the  following  circumstances.  The  defendants,  wine-merchants 
at  Liverpool,  in  the  year  1847  had  given  a  verbal  order  to  the  plaintiff, 
a  wine-merchant  at  Bourdeaux,  for  some  hogsheads  of  claret;  but  it 
did  not  clearly  appear  what  was  the  precise  number  of  hogsheads 
ordered.  In  pursuance  of  this  order,  on  the  29th  of  September,  the 
plaintiff  sent  fifteen  hogsheads  of  claret,  and  at  the  same  time  sent  a 

1  Erskine,  Macle,  and  Cresswell,  JJ.,  delivered  concurring  opinions 


142  CTNLIFFE    V.    HARRISON,  [CHAP.  II. 

letter  to  say  that,  according  to  the  defendants'  order,  he  had  sent  fifteen 
hogsheads  of  the  finest  claret.  The  defendants,  on  receiving  notice  of 
the  arrival  of  the  wine,  on  the  12th  of  October,  wrote  to  the  plaintiff 
the  following  letter  :  — 

We  requested  that  only  ten  hogsheads  might  be  shipped,  and  ten 
reserved  for  shipment  in  the  spring  in  case  we  should  need  it.  "We 
therefore  can  only  take  ten  hogsheads  to  account  on  their  proving 
satisfactory,  and  the  other  five  hogsheads  we  will  hold  on  your  account, 
waiting  your  instructions. 

To  this  letter  the  plaintiff  replied  on  the  18th  of  October,  and  after 
stating  that  he  regretted  that  there  should  have  been  any  misunder- 
standing as  to  the  nature  of  the  defendants'  order,  and  that  clarets 
were  likely  to  rise  in  price  because  other  vintages  were  of  an  inferior 
quality,  the  letter  concluded  as  follows  :  — 

With  old  friends  like  yourselves,  whatever  suits  3*011  best  is  most 
acceptable  to  us.  The  wine  is  superior.  You  will  ascertain  in  the 
spring  whether  you  have  room  for  it ;  and  you  have  seen  that  we  are 
not  stringent  with  old  customers  as  to  credit. 

The  defendants  placed  the  fifteen  hogsheads  in  a  bonded  warehouse 
in  their  own  names,  and  shortly  afterwards  tasted  the  wine  and  disap- 
proved of  it ;  but  they  gave  no  notice  to  the  plaintiff  of  their  disap- 
proval till  the  following  month  of  April,  when  they  refused  to  take 
any  part  of  it.  In  the  month  of  June  the  plaintiff  requested  to  have 
five  hogsheads  delivered  to  his  account,  and  demanded  the  price  of  the 
other  ten. 

On  the  part  of  the  defendants  it  was  contended  that,  assuming  that 
there  was  a  contract  in  writing,  so  as  to  satisfy  the  Statute  of  Frauds, 
that  contract  was  to  take  ten  hogsheads  only,  and  therefore  that  the 
contract  was  not  executed,  as  ten  hogsheads  had  not  been  sent,  or 
selected  out  of  the  fifteen  ;  and,  secondly,  that  if  that  was  not  so,  there 
was  no  acceptance  within  the  17th  section  of  the  Statute  of  Frauds. 
The  learned  judge  left  it  to  the  jury  to  say  whether  the  defendants 
had  kept  the  wine  an  unreasonable  time  without  signifying  their  dis- 
approbation of  it ;  and  the  jury  having  found  that  they  had,  a  verdict 
was  entered  for  the  plaintiff,  with  leave  to  the  defendants  to  move  to 
set  that  verdict  aside,  and  to  enter  a  nonsuit,  if  the  court  should  be  of 
opinion  that  there  was  not  any  evidence  in  support  of  the  plaintiffs 
case. 

Watson  and  Crompton  showed  cause. 

Knowles  and  Tomlinson,  in  support  of  the  rule,  were  not  called 
upon. 

Parke,  B.  I  am  of  opinion  that  the  rule  ought  to  be  absolute  to 
enter  a  nonsuit.  This  is  an  action  for  goods  sold  and  delivered,  the 
value  of  which  is  above  £10.  There  are  two  questions:  first,  whether 
there  was  any  binding  contract  to  satisfy  the  Statute  of  Frauds,  and 
whether  that  contract  has  been  performed  ;  and  secondly,  if  that  be 
not  so,  whether  there  was  an  acceptance  of  the  goods,  so  as  to  bind 


SECT.  V.]  CUNLIFFE   V.    HARRISON.  143 

the  defendants  by  an  acceptance  within  that  statute.  I  think  that  the 
plaintiff  baa  failed  to  establish  either  of  these  propositions.  The 
defendants'  order  in  the  first  instance  was  a  verbal  one.  Upon  looking 
at  the  correspondence,  it  appears  that  the  parties  are  not  agreed  upon 
the  precise  nature  of  the  contract.  The  correspondence  begins  by  a 
letter  of  the  29th  of  September,  in  which  the  plaintiff  says  that  he  has 
sent  to  the  defendants,  according  to  their  partner's  order,  fifteen  hogs- 
heads of  the  finest  claret.  On  the  12th  of  October,  the  defendants 
replied  by  the  following  letter.  [His  lordship  read  the  material  parts, 
and  proceeded  :]  Now  the  defendants'  account  of  the  contract  is,  that, 
thev  agreed  to  purchase  ten  hogsheads  only,  and  to  take  those  ten 
only  if  they  should  prove  satisfactory,  reserving  to  themselves  there- 
fore the  power  of  approving  of  them.  If  we  take  that  to  be  the  true 
account  of  the  contract,  it  was  a  contract  for  ten  hogsheads  only,  and 
the  defendants  were  not  bound  to  receive  them  unless  they  were  satis- 
fied with  them.  They  had  a  right  to  have  ten  specific  hogsheads 
delivered  to  them,  and  they  were  not  bound  to  pay  for  them  unless 
they  were  satisfactory.  If  ten  only  had  been  delivered,  and  they  had 
forborne  to  take  any  objection  for  three  or  four  months,  that  would 
have  been  sufficient  evidence  that  they  approved  of  the  quality  of  the 
wine.  In  this  view  of  the  case,  the  plaintiff,  in  order  to  maintain  his 
action,  must  prove  that  a  specific  ten  were  delivered.  But  the  delivery 
of  fifteen  hogsheads,  under  a  contract  to  deliver  ten,  is  no  performance 
of  that  contract,  for  the  person  to  whom  they  are  'sent  cannot  tell 
which  are  the  ten  that  are  to  be  his  ;  and  it  is  no  answer  to  the  objec- 
tion to  say,  that  he  may  choose  which  ten  he  likes,  for  that  would  be 
to  force  a  new  contract  upon  him.  I  think  there  was  not  evidence, 
either  that  there  was  any  selection  of  any  particular  ten,  or  that  the 
precise  quantity  agreed  upon  was  sent.  The  delivery  of  more  than  ten 
is  a  proposal  for  a  new  contract.  If  this  be  the  true  account  of  the 
contract,  it  has  not  been  performed.  I  think  it  is  also  perfectly  clear 
that  the  defendants  never  accepted  the  ten  hogsheads.  They  objected 
to  the  quality  of  the  whole.  But  then  the  plaintiff  relies  upon  the 
letter  of  the  18th  of  October.  I  do  not  think  that  letter  removes  the 
difficulty.  [His  lordship  read  it  and  proceeded  :]  Now  it  seems  to  me 
that  this  is  a  proposal  for  a.  new  contract,  that  the  matter  shall  lie  over 
till  the  spring,  and  that  the  defendants  shall  then  taste  the  wine  and 
decide  whether  they  will  take  it  or  not.  That  second  contract  has  cer- 
tainly never  been  performed,  for  the  defendants  were  at  liberty  to  make 
their  objection  in  the  spring  on  trying  the  wine;  and  they  did  try  it. 
and  rejected  it.  It  therefore  seems  to  me,  in  either  view,  that  the  plain- 
tiff has  not  made  out  his  case,  for  there  was  no  acceptance  within  the 
statute  ;  and  if  there  was  any  contract  in  writing,  it  was  a  contract  for 
ten  hogsheads  only,  and  the  defendants  never  had  the  particular  ten 
selected  and  delivered  to  them;  and  consequently  they  are  not  liable 
in  the  present  form  of  action. 

Aldekson,  B.,  and  Platt,  B.,  concurred. 


144  WOOD   V.   BELL.  [CHAP.  II. 

Martin,  B.  I  am  of  the  same  opinion.  I  think  there  was  no  evi- 
dence of  a  contract  for  fifteen  hogsheads  ;  but  assuming  that  there  was 
evidence  of  a  contract  for  ten,  and  that  the  defendants  had  expressed 
themselves  satisfied  with  the  quality  of  the  wine,  and  had  agreed  to 
take  ten  out  of  the  fifteen,  I  am  of  opinion  that  the  plaintiff  could  not 
maintain  this  action  for  the  ten  ;  for  I  think  that  the  ten  ought  to  have 
been  separated  from  the  fifteen.  But  then  the  defendants  afterwards, 
ami  before  the  plaintiff  could  have  maintained  an  action  for  goods  sold 
and  delivered,  refused  to  take  an}'  part  of  the  wine.  I  therefore  think 
that  the  defendants  ought  to  succeed  in  the  present  action,  although  it 
may  be  that  the  refusal  to  take  the  wine  was  not  bond  fide,  but  grounded 
upon  the  fact  that  the  wine  had  fallen  in  price.  Hide  absolute. 


WESTERN    WOOD    v.    WILLIAM    BELL,    JAMES    RHODES, 
and  FREDERICK   MOSER. 

In  the  Queen's  Bench,  January  12,  1856. 

[Reported  in  5  Ellis  <r  Blackburn,  772.] 

In  the  Exchequer  Chamber,  May  2,  1856. 

[Reported  in  6  Ellis  §■  Blackburn,  355.] 

A  special  case  was  stated  in  this  action  for  the  opinion  of  the  coui't. 
There  were  no  pleadings,  but  only  a  writ  issued  on  the  27th  day  of 
March,  1855.  The  plaintiff  claimed  to  recover  certain  property,  or  its 
value,  and  damages  for  its  detention  ;  said  property  consisting  of  an 
unfinished  steam  vessel,  called  the  "Britannia,"  and  certain  materials  in- 
tended and  prepared  to  be  used  in  her  further  construction  ;  also  parts 
of  unfinished  engines,  in  course  of  construction  for  the  "  Britannia."  The 
defendants  were  assignees  of  William  Joyce,  who  became  bankrupt  on 
the  11th  day  of  December,  1854,  being  then  engaged  in  building  the 
"Britannia"  under  a  contract  with  the  plaintiff.  When  the  action  was 
brought,  the  defendants  were  in  possession  of  the  property  in  question, 
claiming  title  to  it  as  part  of  the  estate  of  Joyce,  and  they  had  refused 
to  deliver  it  to  the  plaintiff.  A  few  days  before  the  bankruptcy,  the 
unfinished  parts  of  the  engines  before  referred  to  were  inventoried  for 
the  plaintiff  as  belonging  to  the  "Britannia,"  the  inventory  being  made 
out  by  a  person  employed  by  the  plaintiff  for  that  purpose,  with  the  as- 
sistance of  Joyce.  The  remaining  facts  upon  which  the  title  to  the  prop- 
erty depended,  are  sufficiently  stated  in  the  judgment  of  the  court.  It 
was  agreed  that  the  court  should  draw  such  inferences  of  fact  as  a  jury 
ought  to  do. 

The  rase  was  argued  in  last  Michaelmas  term. 

Sovill,  for  the  plaintiff! 

JShee,  Seijt,  contra.  Cur.  adv.  vidt. 


SECT.  V.]  WOOD    V.    BELL.  145 

Lord  Campbell,  C.  J.,  now  delivered  judgment. 

The  facts  of  this  case,  so  far  as  they  are  material  to  the  decision  of 
the  question  before  us,  may  be  briefly  stated  as  follows.  Early  in 
March,  1854,  Joyce,  a  ship-builder  and  manufacturer  of  steam-engines 
for  ships,  contracted  with  Wood,  the  plaintiff,  to  build  for  him  a  screw 
steamer,  according  to  specifications  then  rendered  to  him  by  one  John 
Hall,  for  £16,000,  payable  in  instalments  of  four  several  sums  of  £1,000 
each,  on  days  named  in  four  successive  months  ;  £3,000  on  a  day  named 
in  two  months  from  the  last  of  the  four  preceding,  provided  the  vessel 
was  then  plated  and  her  decks  laid  ;  £3,000  on  a  day  named  in  the  sec- 
ond month  from  the  last  preceding,  provided  she  was  then  ready  for  trial; 
£3,000  on  a  day  named  in  three  months  from  that  last  named,  provided 
she  was  according  to  contract,  and  properly  completed  ;  and  the  fourth 
and  last  £3,000  on  a  day  named,  two  months  from  that  last  named,  or 
by  bill  of  exchange  to  be  due  at  that  time.  Under  this  contract  the 
building  of  the  vessel  commenced  in  the  same  month  of  March,  1854, 
and  was  carried  on  to  December  in  that  year,  when  all  work  in  Joyce's 
building-yard  ceased,  he  having  become  a  bankrupt;  she  being  at  that 
time  on  the  slip,  in  frame,  not  decked,  and  about  two-thirds  or  more 
plated.  The  instalments  contracted  for  were  paid  in  advance  ;  the  build- 
ing of  the  vessel  was  carried  on  under  the  superintendence  of  Mr.  Hall 
on  behalf  of  the  plaintiff;  he  examined  the  materials  intended  for  her 
before  they  were  used  ;  caused  alterations  to  be  made  in  them  when  he 
thought  it  necessary,  and  other  materials  to  be  substituted  for  such  as 
he  rejected.  Soon  after  the  building  of  the  ship  began,  the  plaintiff 
named  her  the  "Britannia;"  anrl  she  was  thenceforth  known  by  that  name 
by  Joyce  and  his  workmen.  In  July,  John  Hall,  by  the  plaintiff's  di- 
rection, requested  Joyce  to  have  the  plaintiff's  name  punched  on  her 
keel.  Joyce  knew  that  this  was  for  the  purpose  of  securing  her  to  the 
plaintiff;  and  he  consented  to  its  being  done.  It  was  not,  however, 
done  at  that  time,  because  her  keel  was  not  far  enough  advanced  for  the 
purpose  ;  it  was,  however,  done  in  October  by  direction  of  Joyce,  on  a 
second  requisition  made  on  behalf  of  the  plaintiff.  In  the  month  of 
November,  the  solicitors  of  the  plaintiff  pressed  Joyce,  wdiose  affairs 
had  become  embarrassed,  to  make  a  formal  assignment  to  him  of  the 
"Britannia,"  and  the  engine  and  other  fittings  then  in  preparation  for  her. 
which  he  declined  to  do,  on  the  ground  that  he  would  thereby  be  sign- 
ing himself  and  his  creditors  out  of  everything  he  possessed  ;  but,  :it 
the  same  time,  he  admitted  that  she  was  the  property  of  the  plaintiff. 
Her  steam-engines  were  designed  on  a  peculiar  plan  to  economize  room  : 
and  the  engine-room  was  adapted  to  this  construction  ;  the  engine  work 
was  carried  on  contemporaneously  by  Joyce  with  the  building  of  the 
vessel ;  the  parts  of  the  engines  were  made  and  marked  so  as  to  fit 
together  ;  they  are  easily  recognizable  as  parts  of  the  same  whole  ;  and 
during  the  period  in  question  none  other  were  constructed  by  him.  Iron 
plates  and  angle  irons  made  for  the  ''Britannia."  upon  her  designs,  and 
pre-arranged  for  different  parts  of  her,  but  not  yet  riveted  to  her,  and 

10 


146  WOOD    V.    BELL.  [CHAP.  II. 

plankings  intended  and  prepared  for  her,  but  not  fastened  to  her,  were 
on  Joyce's  wharf  at  the  date  of  the  bankruptcy. 

Upon  these  facts  the  first  and  most  material  question  for  our  deter- 
mination is,  whether  the  "  Britannia"  and  the  different  descriptions  of 
property  before  enumerated,  or  any  and  which  of  them,  belong  to  the 
plaintiff,  or  to  the  defendants,  the  assignees  of  Joyce?  The  answer  to 
this  question  must  depend  on  the  construction  of  the  contract  between 
the  parties.  At  the  time  at  which  it  was  made  Joyce  was  free  to  make 
such  contract  as  he  should  please  in  respect  of  his  goods,  and  of  the 
produce  of  his  labor.  We  are  to  ascertain,  therefore,  what  in  fact  was 
the  contract  which  he  did  make.  When  a  man  contracts  with  another 
to  make  any  article  for  him  for  a  given  price,  the  general  rule  is,  in  the 
absence  of  all  circumstances  from  which  a  contrary  conclusion  may  be 
inferred,  that  no  property  passes  in  the  chattel  until  it  Vie  completed  and 
ready  for  delivery  ;  on  the  other  hand,  where  a  bargain  is  made  for  the 
purchase  of  an  existing  ascertained  chattel,  the  general  rule,  in  the 
same  absence  of  opposing  circumstances,  is,  that  the  property  passes 
immediately  to  the  vendee  ;  that  is,  that  there  is  at  once  a  complete 
bargain  and  sale.  But  these  general  rules  are  both  and  equally  founded 
on  the  presumed  intention  of  the  parties.  If,  in  the  first,  there  are  at- 
tendant circumstances  from  which  the  intention  may  be  inferred  that 
the  property  shall  pass  in  the  incomplete  and  growing  chattel  as  the 
manufacture  of  it  proceeds,  or  even  in  ascertained  materials  from  which 
it  is  to  be  carried  to  perfection,  that  intention  will  be  effectuated  ;  and 
equally  in  the  latter,  if  it  appear  that  the  parties  intended  to  postpone 
the  transfer  of  the  property  till  the  payment  of  the  price  or  the  perform- 
ance of  any  other  condition,  such  intention  will  be  upheld  in  the  courts 
of  law.  This  principle  we  believe  to  be  settled  :  and  whatever  apparent 
difference  may  be  found  in  the  leading  decisions  on  this  point  turns 
rather  on  the  weight  given  to  particular  circumstances  as  evidences  of 
intention,  that  is  to  say,  in  the  application  of  the  same  principle  to  the 
determination  of  the  cases,  rather  than  to  any  dispute  about  the  prin- 
ciple itself.  Previous  decisions,  therefore,  are  mainly  useful  as  serving 
to  guide  our  judgment  in  estimating  the  weight  of  circumstances  as  evi- 
dence of  intention;  and  in  this  way  they  are  of  great  importance;  be- 
cause, where  certain  incidents  have  been  held  to  disclose  the  intention 
to  pass  immediately,  or  to  postpone  the  passing  of  property,  it  may  be 
presumed  that  succeeding  judges  will  give  a  similar  effect  to  the  same 
incidents  in  succeeding  contracts;  and  parties  therefore,  especially  in 
trade  contracts,  will  purposely  introduce  or  withhold  them,  in  order  to 
give  effect  with  more  certainty  to  their  intention,  the  one  way  or  the 
other.  Cases  therefore  such  as  Woods  v.  Russell,  5  B.  &  Aid.  942, 
Clarke  v.  Spence,  4  A.  &  E.  1 18,  Laidler  v.  Burlinson,  2  M.  &  W.  G02 
(and  many  others  might  be  named),  were  most  properly  referred  to  in 
argnmenl  ;  and  we  ought,  for  both  the  reasons  we  have  just  mentioned, 
carefully  to  adhere  to  whatever  we  find  decided  in  them  which  is  appli- 
cable to  any  contract  which  we  may  have  to  construe.     Still  it  must  be 


SECT.  V.]  -WOOD    V.    BELL.  147 

remembered,  after  all,  that  what  we  have  to  determine  is  a  question  of 
fact,  namely,  what  upon  a  careful  consideration  of  all  the  circumstauccs 
we  believe  to  have  been  the  contract  into  winch  the  parties  have  entered. 
Looking  then  to  the  facts  of  this  case,  we  find  that  the  vessel  was  to  be 
paid  for  by  instalments,  the  four  first  on  days  named,  and  uncondition- 
ally, with  no  express  reference  to  the  stage  in  her  building  to  which  she 
might  be  advanced  on  the  arrival  of  those  days  ;  nor  are  we  enabled  to 
say  that  the  sums  named  for  each  payment  would  be  commensurate  with 
her  probable  progress  on  those  days.  The  three  next  instalments  are 
also  made  payable  on  days  certain  ;  but  the  two  first  of  these  payments 
are  made  to  depend  on  her  having  been  carried  on  to  certain  specific 
stages  in  her  building  on  those  days  respectively  ;  and  this,  as  an  indi- 
cation of  intention,  seems  to  us  substantially  the  same  as  if  the  days 
had  not  been  fixed,  but  the  payments  made  to  be  due  expressly  when 
those  stages  had  been  reached:  the  payment  of  the  third  is  made  to 
depend  on  her  being,  on  the  day  named,  built  according  to  contract; 
and  this  is  not  inconsistent  with  her  being  the  property  of  the  plaintiff, 
even  though  she  should  not  be  in  all  respects  built  according  to  con- 
tract ;  the  instalment  may  be  made  liable  to  detention  in  order  to  secure 
her  being  made  so :  the  last  instalment  is  made  payable  at  a  later  day  ; 
and  no  inference  can  be  drawn  either  way  from  that  circumstance. 

The  differences  we  have  pointed  out  as  to  the  times  of  payment  were 
relied  upon  by  my  brother  Shee  as  distinguishing  this  case  from  Woods 
v.  Russell,  5  B.  &  Aid.  942,  and  Clarke  v.  Spence,  4  A.  &  E.  448.  We 
do  not  think  the  differences  very  material  when  looked  on  merely  with 
a  view  of  ascertaining  the  intention  of  the  parties  ;  and  we  attach  the 
less  importance  to  them,  because  the  former  case  was  not  decided  upon 
the  inference  to  be  drawn  from  this  incident  in  the  contract  ;  and  in 
Clarke  v.  Spence,  it  is  admitted  that  this  incident,  taken  alone,  rather 
shows  an  appropriation  of  the  particular  parts  so  paid  for.  than  the  trans- 
ference of  the  general  property  at  any  time  before  the  whole  vessel  is 
completed.  The  next  circumstance  was  considered  in  Clarke  v.  Spence 
to  be  more  material,  namely,  that  the  building  was  to  be  carried  on 
under  the  superintendence  of  an  agent  of  the  plaintiff's,  who  was  to  de- 
cide on  the  introduction  of  all  materials  into  her.  It  certainly  could  not 
be  contemplated  that  he  was  to  superintend  the  building  of  more  than 
one  vessel  under  this  contract,  or  that  he  was  to  superintend  the  build- 
ing of  am'  vessel  which  Joyce  could  at  his  pleasm-e  transfer  to  another 
person  ;  still  it  must  be  admitted  that  this  is  by  no  means  conclusive  a-  to 
the  question  of  property  ;  it  may  be  that  it  would  have  been  a  breach  of 
contract  not  to  deliver  this  specific  vessel  to  the  plaintiff  as  soon  as  she 
was  completed,  and  yet  the  property,  until  she  was  completed,  might 
have  remained  in  Joyce.  But  two  facts  still  remain.  Joyce,  at  the  in- 
stance of  the  plaintiff,  punches  his  name  on  her  keel,  expressly  for  the 
purpose  of  securing  her  to  the  plaintiff;  ami.  although  he  refuses,  after 
this,  to  execute  a  formal  assignment  of  her  to  the  plaintiff,  he  at  the 
same  time  admits  her  to  be  the  plaintiff's  property.     Both  these  circum- 


148  WOOD    V.    BELL.  [CHAP.  II. 

stances  occur  when  Joyce  was  the  master  of  his  property,  and  appear  to 
us  of  the  greatest  importance  ;  they  throw  a  light  on  the  preceding  cir- 
cumstances, and  show  how  they  are  to  be  understood,  in  so  far  as  they 
were  in  themselves  ambiguous  ;  and  they  would  be  all  but  conclusive 
evidence  against  Joyce,  as  direct  recognitions  that  the  property  in  the 
vessel  had  passed  from  himself  to  the  plaintiff.  If  it  be  said  that  the 
request  on  the  part  of  the  plaintiff  to  have  a  formal  assignment  is  evi- 
dence of  an  admission  on  his  part  that  the  property  had  not  yet  passed 
to  him,  the  answer  is  that  it  was  not  unnatural,  or  inconsistent  with  the 
claim  he  now  sets  up,  that  he  should,  under  the  circumstances,  desire 
some  more  direct  and  producible  evidence  of  his  title  than  that  on 
which  he  must  otherwise  stand.  And,  if  it  be  said  that  Joyce's  refusal 
to  execute  the  assignment  detracts  from  the  weight  of  his  admission, 
because  inconsistent  with  it,  the  answer  is.  that  it  is  more  fairly  attrib- 
utable to  the  unprincipled  desire  of  a  failing  man  to  cling  to  that  which 
he  may  yet  look  to  as  the  means  of  raising  money  while  in  his  posses- 
sion, and,  as  he  may  suppose,  of  staving  off  his  entire  ruin.  The  ad- 
mission referred  to  is  a  circumstance  exactly  of  the  same  kind  as  that 
on  which  the  decision  in  Woods  v.  Russell,  5  B.  &  Aid.  942,  mainly 
turned,  named,  Paton's  signing  the  certificate  to  enable  Russell  to  have 
the  ship  registered  in  his  own  name.  On  this  Abbott,  C.  J.,  remarks  : 
'•  In  order  to  register  the  ship  in  Russell's  name,  an  oath  would  be  requi- 
site that  he  was  the  owner  ;  and  when  Paton  concurred  in  what  he  knew 
was  to  lead  to  that  oath,  must  he  not  be  taken  to  have  consented  that 
the  ownership  should  really  be  as  that  oath  described  it  to  be?  "  And 
when  Joyce  tells  the  solicitors  of  the  plaintiff  that  the  ship  is  the  prop- 
erty of  the  plaintiff,  can  he,  or  the  assignees  who  claim  under  him,  be 
heard  to  allege  the  contrary  as  to  a  fact  which  must  have  been  entirely 
within  his  own  knowledge? 

On  a  review  of  all  these  circumstances,  which  are  all  consistent  with 
each  other,  and  which  mutually  strengthen  each  other,  we  have  come 
to  the  conclusion  that  the  property  in  the  "Britannia"  passed  to  the 
plaintiff  as  she  advanced  in  her  progress  towards  completion  ;  and.  if 
this  be  so.  it  was  scarcely  contended  but  that  the  same  decision  ought 
1<.  be  come  to  with  respect  to  the  engines,  plates,  irons,  and  plankings 
designed  and  in  a  course  of  preparation  for  her,  and  intended  to  be 
fixed  in  her.  The  question  as  to  these  last  seems  to  be  governed  by 
the  decision  as  to  the  rudder  and  cordage  in  Woods  v.  Russell. 

In  the  course  of  the  argument  we  intimate  our  opinion  that  special 
damage  beyond  the  mere  value  of  the  property  might  be  recoverable; 
and  we  remain  of  that  opinion. 

Our  judgment,  therefore,  will  lie  for  the  plaintiff,  with  the  usual  costs. 

The  defendants  suggested  error  on  this  judgment,  in  the  Court  of 
Exchequer  Chamber. 

Jervis,  C.  J.  I  think  this  case  should  go  back  to  the  arbitrator.  In 
substance  the  judgment  below  is  reversed.  I  agree  with  the  court  be- 
low that  the  ship  passed.     That  question  is  merely  one  of  fact ;  as  well 


SECT.  V.]  ALDKIDGE   V.   JOHNSON.  140 

put  in  Mr.  Blackburn's  useful  work,  the  property  does  not  pass  merely 
by  its  being  manufactured,  but  only  when  it  is  the  intention  ui"  the  par- 
ties that  it  shall  pass.  And  here  I  think  the  facts  show  such  an  inten- 
tion. I  further  concur  with  the  details  of  the  judgment  below,  so  far 
as  the  ship  is  concerned.  But  I  do  not  think  that,  as  the  court  below 
seems  to  have  held  without  much  consideration,  the  unfixed  materials 
destined  for  the  ship  did  pass.  They  do  not  appear  to  have  been  cir- 
cumstanced exactly  as  the  rudder  and  cordage  were  in  Woods  v.  Rus- 
sell, 5  B.  &  Aid.  942,  where  they  had  become,  it  seems,  a  part  of  the 
ship.  Here  they  are  merely  provided  for  the  ship.  If  the  circumstances 
in  Woods  v.  Russell  were  the  same  as  here,  I  should  doubt  whether  the 
decision  in  that  case  was  right ;  and  1  should  say  the  same  as  to  Goss  v. 
Quinton,  3  M.  &  G.  825.  The  question  is,  What  is  the  ship?  not,  What 
is  meant  for  the  ship?  I  think  those  things  pass  which  have  been  fitted 
to  the  ship,  and  have  once  formed  part  of  her,  as,  for  instance,  a  door 
hung  upon  hinges,  although  afterwards  removed  for  convenience.  I  do 
not  think  the  circumstance  that  materials  have  been  fitted  and  intended 
for  the  ship,  makes  them  part  of  the  ship.  The  consequence  is  that  the 
arbitrator  has  assessed  the  damages  at  2,200/.  on  an  assumption  which 
we  consider  wrong,  as  he  will  have  included  many  items  in  respect  of 
which  the  plaintiff  is  not  entitled  to  damages.  The  case  may  as  well 
stand  over  for  a  few  days  ;  and  in  the  mean  while  a  schedule  may  be 
made  out,  showing  what  each  party  claims. 

Pollock,  C.  B.,  Alderson,  B.,  Cresswell,  J.,  Crowder,  J.,  Willes, 
J.,  and  Bkamwell,  B.,  concurred. 1 


JAMES   WILSHER  ALDRIDGE   v.   PATRICK  JOHNSON. 
In  the  Queen's  Bench,  June  5,   1857. 

[Reported  in  7  Ellis  $•  Blackburn,  885.] 

Tins  was  an  action  brought  by  the  plaintiff  to  recover  certain  goods 
alleged  to  be  his  property,  and  to  have  been  detained  by  the  defend- 
ant ;  or  the  value  of  such  goods,  and  damages  for  their  detention  ;  ami 
a  No  to  recover  damages  for  the  wrongful  conversion  of  the  same  goods 
by  the  defendant. 

The  defendant  pleaded  to  the  whole  declaration  :  first,  not  guilty  ; 
and,  secondly,  that  the  goods  were  not  the  plaintiffs  property. 

On  the  trial  before  Erie,  J.,  at  the  sittings  in  London  in  last  Hilary 
term,  a  verdict  was  found  for  the  plaintiff,  by  consent-  for  the  whole 
amount  of  his  claim,  and  costs  40s.,  subject  to  the  opinion  of  the  court 
upon  the  following  case  :  — 

1  Cnmparo  Anglo-Egyptian  Navigation  Co.  v.  Renuic,  L.  R.  10  C.  P.  271  ;  ib.  571  ; 
Seath  v.  Moore,  11  App.  Cas.  350. 


15(J  ALDKIDGE    V.    JOHNSON.  [CHAP.  II. 

The  plaintiff  is  a  corn-merchant  at  Witham,  in  Essex;  and  the 
defendant  is  the  official  assignee  of  the  estate  and  effects  of  one  James 
Watling  Knights,  a  bankrupt,  who,  up  to  the  time  of  his  bankruptcy, 
as  hereinafter  mentioned,  carried  on  business  at  Ipswich  in  Suffolk  as 
an  auctioneer  and  seed-merchant. 

On  12th  September,  1856,  the  plaintiff  took  thirty-four  bullocks  to 
Ipswich  for  the  purpose  of  having  them  sold  by  auction  by  the  said  J. 
W.  Knights,  and  instructed  Knights  to  sell  them  if  they  should  fetch 
a  certain  price.  They  did  not,  however,  fetch  that  price,  and  conse- 
quently were  bought  in  by  the  plaintiff.  Knights  then  informed  the 
plaintiff  that  he  had  a  quantity  of  barley  in  his  granary,  and  proposed 
to  exchange  a  portion  of  it  for  the  plaintiff's  bullocks.  The  plaintiff 
went  and  looked  at  the  barley,  which  consisted  at  that  time  of  one 
large  heap  containing  between  200  and  300  quarters.  He  weighed  a 
bushel  of  it  for  the  purpose  of  ascertaining  its  quality,  and  took  a  sam- 
ple away  with  him  ;  but  no  bargain  was  made  on  that  day  ;  and  the 
bullocks  were  sent  to  Colchester  the  same  evening.  On  the  following 
day  (13th  September),  the  plaintiff  and  Knights  were  at  Colchester 
market ;  and  the  plaintiff  sold  two  of  his  bullocks  there  ;  after  which 
a  eonversation  took  place  between  the  plaintiff  and  Knights,  upon  the 
subject  of  the  exchange  proposed  on  the  previous  day,  which  resulted 
in  the  following  arrangement  between  them  :  — 

It  was  agreed  that  Knights  should  have  the  remaining  thirty-two 
bullocks  at  the  price  of  £6  apiece,  and  that  the  plaintiff  should  take  in 
exchange  100  quarters  of  the  barley  which  he  had  seen  at  Ipswich  the 
day  before,  at  the  price  of  £2  3s.  a  quarter.  The  difference  between 
the  value  of  the  barley  and  of  the  bullocks,  viz.,  £23,  was  to  be  paid  in 
cash  by  the  plaintiff  to  Knights.  It  was  further  agreed  that  the  plain- 
tiff should  send  his  own  sacks  to  Ipswich  on  the  following  Monday 
(15th),  and  that. Knights  should  fill  the  sacks  with  the  barley,  take 
them  to  the  railway,  and  place  them  upon  trucks,  free  of  charge,  to  be 
conveyed  to  the  plaintiff  at  Witham.  Something  was  also  said  about 
a  sum  of  £20  7s.,  which  the  plaintiff  owed  Knights  for  some  goods 
which  he  had  previously  purchased  ;  but  it  was  agreed  that  this  trans- 
action should  not  interfere  with  the  arrangement  which  was  then  being 
made. 

As  soon  as  this  arrangement  was  effected,  the  plaintiff  made  a  note 
of  it  in  his  pocket-book,  and  the  thirty-two  bullocks  were  then  and 
there  delivered  by  the  plaintiff  to  Knights. 

On  the  following  Monday,  pursuant  to  the  above  arrangement,  the 
plaintiff  sent  to  Ipswich  200  sacks  (being  a  sufficient  number  to  contain 
the  whole  100  quarters  of  barley).  Some  of  these  sacks  were  marked 
in  the  plaintiff's  name;  and  they  were  all  duly  received  by  Knights  : 
but  the  barley  was  not  delivered  or  forwarded  to  the  plaintiff.  On  16th 
September  the  plaintiff  wrote  to  Knights  for  a  sample  of  the  barley, 
which  was  accordingly  sent  On  17th  September,  Knights  sent  one  of 
his  men  named  Abel  Smith,  to  till  155  out  of  the  200  sacks  with  barley 


SECT,   V.]  ALDRIDGE   V.   JOHNSON.  151 

from  the  above-mentioned  heap  ;  and  accordingly  Smith  proceeded  to 
the  granary,  and,  with  the  assistance  of  other  persons,  filled  155  of  the 
sacks  with  barley  from  the  heap  (each  sack  containing  one  coomb,  or 

half  a  quarter).  After  the  sacks  had  been  filled,  there  was  left  in  the 
heap  some  seventy  or  eighty  quarters  ;  so  that  the  quantity  put  into 
the  sacks  was  only  about  half  the  bulk.  By  the  further  direction  of 
Knights,  Smith  applied,  the  same  day,  at  the  railway  station  at  Ipswich, 
for  some  trucks,  to  convey  the  155  sacks  to  the  plaintiff  at  Witham,  but 
was  not  able  to  obtain  any.  On  the  following  Saturday  (20th),  the 
plaintiff  again  saw  Knights  at  Colchester  market,  and  complained  to 
him  of  the  non-delivery  of  the  barley.  He  said  he  was  sorry  that  he 
had  not  sent  it;  but  that  he  had  been  very  bus}-  and  unable  to  get 
trucks,  and  that  it  should  be  sent  on  the  Monday  following  without  fail. 
On  the  following  Monday  morning  (22d),  Knights  gave  directions  to  a 
clerk  in  his  employ,  named  Mulley,  to  get  some  trucks,  and  have  the 
155  full  sacks,  which  were  then  standing  in  the  granary,  put  upon  them 
to  be  sent  to  the  plaintiff.  Mulley  accordingly  applied  for  the  trucks, 
but  without  success.  After  giving  these  directions,  Knights  himself 
went  up  to  London,  saw  the  plaintiff  in  Mark  Lane,  and  told  him  that 
the  barley  would  be  put  upon  the  rail  that  day. 

In  the  course  of  the  same  morning,  the  plaintiff  had  sent  to  Ipswich 
a  person  in  his  employ  named  Church,  to  demand  of  Knights  the  100 
quarters  of  barley.  Accordingly,  Church  called  at  Knights'  about 
noon,  and  found  that  he  was  away  from  home,  but  saw  Mulley,  and 
demanded  the  barley  of  him.  Mulley  said  that  he  could  get  no  trucks 
to  put  it  upon,  and  that  Church  had  better  try  himself  to  get  some  : 
that,  if  he  could  procure  an}',  the  barley  should  be  put  upon  the  rail 
that  afternoon  ;  but  that,  at  any  rate,  it  should  be  forwarded  the  first 
thing  the  next  morning.     After  this  Church  returned  to  Witham. 

Wlnle  the  above  communication  was  passing  between  Mulley  and 
Church,  the  former  received  from  Knights  a  telegraphic  despatch  in  the 
following  terms  :  — 

"  If  you  have  not  put  oats  on  rail,  do  not,  nor  allow  more  barley  to 
go  if  applied  for.     Private." 

The  barley  mentioned  in  the  said  despatch  was  the  same  barley  in 
respect  to  which  Knights  had  given  Mulley  directions  in  the  morning  ; 
but  Mulley  did  not  mention  to  Church  the  contents  of  the  despatch,  nor 
the  fact  that  he  had  received  any  communication  from  Knights. 

The  barley  was  not  forwarded  to  the  plaintiff  the  next  day.  but  re- 
mained in  the  sacks  till  the  following  AVednesday  ;  when  Abel  Smith. 
by  Knights's  directions,  turned  it  all  out  of  the  sacks  again  on  to  the 
heap  from  which  it  was  taken,  so  as  to  be  (indistinguishable  from  the 
rest  of  the  heap. 

On  Thursday,  25th  September,  in  consequence  of  information  which 
the  plaintiff  had  received,  lie  went  himself  to  Ipswich,  and  saw  Knights 
at  his  own  house.  He  remonstrated  with  him  for  not  sending  the 
barley  ;  and  after  some  conversation.  Knights  stated  that  he  was  sorry 


152  ALDRIDGE   V.    JOHNSON.  [CHAP.  II. 

to  say  he  was  in  trouble,  and  had  a  notice  of  bankruptcy  served  upon 
him.  On  29th  September,  Knights  filed  a  petition  for  arrangement 
under  the  211th  section  of  the  Bankrupt  Law  Consolidation  Act,  1849. 
And  at  the  first  sitting  which  was  held  in  the  matter  of  that  petition, 
on  the  4th  November  following,  Knights  was  adjudicated  a  bankrupt; 
and  the  defendant  was  then  named  and  made  the  official  assignee  of  his 
estate  and  effects. 

On  18th  November  this  action  was  commenced,  the  plaintiff  having 
previously  demanded  the  barley  of  the  defendant,  and  tendered  to  him 
the  difference  between  the  price  of  the  barley  and  the  price  of  the 
bullocks. 

The  barley  remained  at  Knights'  granary  until  Christmas,  when  it 
was  removed. 

Bittleston,  for  the  plaintiff. 

Prentice,  contra. 

Lord  Campbell,  C.  J.  In  cases  of  this  sort  there  often  is  great  doubt 
and  great  difficulty  ;  but  the  present  case  seems  to  me  on  both  points 
free  from  all  doubt  and  difficulty.  I  think  that  no  portion  of  what 
remained  in  bulk  ever  vested  in  the  plaintiff.  We  cannot  tell  what  part 
of  that  is  to  vest.  No  rule  of  the  law  of  vendor  and  purchaser  is  more 
clear  than  this  :  that,  until  the  appropriation  and  separation  of  a  partic- 
ular quantity,  or  signification  of  assent  to  the  particular  quantity,  the 
property  is  not  transferred.  Therefore,  except  as  to  what  was  put  into 
the  155  sacks,  there  must  be  judgment  for  the  defendant.  It  is  equally 
clear  that,  as  to  what  was  put  into  those  sacks,  there  must  be  judgment 
for  the  plaintiff.  Looking  to  all  that  was  done,  when  the  bankrupt  put 
the  barley  into  the  sacks,  eo  instanti  the  property  in  each  sackful  vested 
in  the  plaintiff.  I  consider  that  here  was  a  priori  an  assent  by  the 
plaintiff.  He  had  inspected  and  approved  of  the  barle%y  in  bulk.  He 
sent  his  sacks  to  be  filled  out  of  that  bulk.  There  can  be  no  doubt  of 
his  assent  to  the  appropriation  of  such  bulk  as  should  have  been  put 
into  the  sacks.  There  was  also  evidence  of  his  subsequent  appropria- 
tion by  his  order  that  it  should  be  sent  on.  There  remained  nothing  to 
be  done  by  the  vendor,  who  had  appropriated  a  part  by  the  direction 
of  the  vendee.  It  is  the  same  as  if  boxes  had  been  filled  and  sent  on 
by  the  bankrupt,  in  which  case  it  cannot  be  disputed  that  the  property 
would  pass  ;  and  it  can  make  no  difference  that  the  plaintiff  ordered  the 
sacks  to  be  forwarded  by  the  vendor.  As  to  the  question  of  conversion, 
the  property  being  in  the  plaintiff,  he  has  done  nothing  to  divest  him- 
self of  it.  It  is  not  like  the  case  of  confusion  of  goods,  where  the  owner 
of  such  articles  as  oil  or  wine  mixes  them  with  similar  articles  belong- 
ing to  another.  That  is  a  wrongful  act  by  the  owner,  for  which  he  is 
punished  by  losing  his  property.  Here  the  plaintiff  has  done  nothing 
wrong.  It  was  wrong  of  the  bankrupt  to  mix  what  had  been  put  into 
the  sacks  with  the  rest  of  the  barley  ;  but  no  wrong  has  been  done  by  the 
plaintiff.  That  being  so,  the  plaintiffs  property  comes  into  the  hands 
of  the  defendant  as  the  bankrupt's  assignee.     If  the  defendant  had  a 


SECT.  V.]  ALDKIDGE  V.   JOHNSON.  153 

lien,  he  does  not  detain  the  bailey  on  that  ground.  He  denies  the 
plaintiff's  property  altogether,  and  cannot  therefore  claim  a  lien.  He 
claims  all  the  barley,  and  claims  all  of  it  as  being  the  property  of  the 
bankrupt.     lie  therefore  has  converted  the  plaintiff's  property. 

Coleridge,  J.  I  am  of  the  same  opinion.  I  think  the  property  in 
that  portion  which  was  put  into  the  plaintiffs  sacks  passed  to  the  plain- 
tiff. That  portion  was  subtracted  by  the  vendor  from  the  bulk,  in  part 
performance  of  the  contract ;  and  there  is  abundant  evidence  of  appro- 
priation, as  far  as  the  bankrupt  could  appropriate.  There  is  also 
abundant  evidence  of  assent  by  the  plaintiff.  He  had  before  assented 
to  the  quality  of  the  bulk  ;  and,  after  the  portion  was  put  into  the  sacks, 
he  desired  that  they  should  be  sent  to  him.  There  is  thus  evidence  of 
the  completion  of  the  act  of  appropriation.  Atkinson  v.  Bell,  S  B.  &  C. 
277,  is  a  very  different  case.  There  the  goods  were  in  the  course  of 
being  made ;  and  many  alterations  had  taken  place ;  and  the  purchaser 
had  never  done  any  act  by  which  he  adopted  the  particular  thing  made. 
Here  is  a  complete  appropriation.  As  to  the  conversion,  nothing  that 
either  the  bankrupt  or  the  assignee  could  do  without  the  plaintiff's  con- 
sent could  divest  the  plaintiff's  property  ;  and  the  removal  is  abundant 
proof  of  the  conversion. 

Erle,  J.  I  also  am  clearby  of  opinion  that  the  property  in  what  was 
put  into  the  sacks  passed  to  the  plaintiff.  It  is  clear  that,  where  there 
is  an  agreement  for  the  sale  and  purchase  of  a  particular  chattel,  the 
chattel  passes  at  once.  If  the  thing  sold  is  not  ascertained,  and  some- 
thing is  to  be  done  before  it  is  ascertained,  it  does  not  pass  till  it  is 
ascertained.  Sometimes  the  right  of  ascertainment  rests  with  the  ven- 
dee, sometimes  solely  with  the  vendor.  Here  it  is  vested  in  the  vendor 
only,  the  bankrupt.  When  he  had  done  the  outward  act  which  showed 
which  part  was  to  be  the  vendee's  property,  his  election  was  made  and 
the  property  passed.  That  might  be  shown  by  sending  the  goods  by 
the  railway  ;  and  in  such  case  the  property  would  not  pass  till  the 
goods  were  despatched.  But  it  might  also  be  shown  by  other  acts. 
Here  was  an  ascertained  bulk,  of  which  the  plaintiff  agreed  to  buy 
about  half.  It  was  left  to  the  bankrupt  to  decide  what  portion  should 
be  delivered  under  that  contract.  As  soon  as  he  does  that,  his  election 
has  been  indicated ;  the  decisive  act  was  putting  the  portion  into  the 
sacks.  If  it  were  necessary  to  rest  the  decision  on  the  assent  of  the 
vendee  in  addition  to  this,  I  am  of  opinion  that  there  is  abundant 
evidence  of  such  assent ;  for  the  vendee  demanded,  over  and  over  again, 
the  portion  which  had  been  put  into  the  sacks.  I  think  Mr.  Blackburn 
lias  expressed  the  law  with  great  clearness  and  accuracy.  He  first  takes 
the  case  where  one  party  appropriates  and  the  other  assents,  and  then 
the  case  where,  by  virtue  of  the  original  agreement,  the  authority  to 
appropriate  is  in  one  party  only.  As  to  the  question  of  conversion, 
I  am  of  opinion,  on  the  grounds  which  have  already  been  stated,  that 
the  assignee  has  converted  the  plaintiff's  property. 

Crompton,  J.     As  to  the  first  point,  respecting  the  part  not  put  into 


154  LANGTON   V.   HIGGIXS.  [CHAP.  II. 

the  sacks,  I  never  felt  any  doubt.  As  to  the  second  point,  I  do  not  feel 
so  clear  as  the  other  members  of  the  court,  though  I  do  not  say  that  I 
disagree  with  thein.  It  is  suggested  that  the  plaintiff  said  to  the  bank- 
rupt, in  effect,  I  will  buy  what  you  will  put  into  the  sacks.  After  that 
was  done,  I  much  doubt  whether  the  bankrupt  could  meddle  with  the 
sacks  and  turn  out  what  had  been  put  in.  It  may  be  that  the  bargain 
was  as  my  lord  and  my  brother  Erie  put  it,  that  the  plaintiff  would 
take  what  the  vendor  should  put  in.  On  that  view,  when  the  barley 
was  put  into  the  sacks  it  was  just  as  if  it  had  been  sent  by  a  carrier. 
Also  I  agree  that,  if  the  plaintiff  sent  for  the  barley  after  it  was  in  the 
sacks,  that  would  be  an  assent  to  the  appropriation.  But  I  doubt 
whether,  as  the  case  is  stated,  it  is  quite  clear  that  the  plaintiff  knew 
that  the  barley  had  been  put  into  the  sacks  :  if  he  did,  there  was  clear 
evidence  of  assent.  Then  it  is  argued,  on  behalf  of  the  defendant,  that 
the  contract  was  entire,  and  that  either  all  or  none  of  the  barley  must 
pass.  I  do  not  agree  to  that.  There  was  an  appropriation  of  so  much  ; 
and  so  much  passed.  As  to  the  conversion,  the  law  is,  beyond  ques- 
tion, as  my  lord  puts  it;  a  prior  conversion  does  not  prevent  a  subse- 
quent conversion.  The  true  owner  ma}'  waive  the  first  conversion. 
Is  is  difficult  to  say  what  the  assignee  was  to  do.  But  I  think  that, 
if  he  removes  all,  it  is  a  conversion  of  the  part  which  belongs  to  the 
plaintiff:  if  he  sells  all,  an  action  for  money  had  and  received  may  be 
brought  in  respect  of  that  part.  I  think,  therefore,  that,  as  he  has 
removed  all,  he  has  been  guilt}-  of  a  conversion. 

Judgment  for  plaintiff  as  to  the  part  put  into  the  sacks  :  as  to  the 
residue,  judgment  for  defendant. 


ELIZABETH  LANGTON   u.    HIGGINS. 

In  the  Exchequer,  May  5,    1859. 

[Reported  in  4  Ilurlstone  §•  Norman,  402.] 

The  first  count  of  the  declaration  was  in  detinue  for  cases  and 
bottles  of  oil  of  peppermint.  The  second  count  was  in  trover  for  the 
same  goods. 

Pleas.  —  First :  not  guilt}'.  Secondly  :  that  the  goods  were  not, 
nor  were  any  or  either  of  them,  the  plaintiff's,   as  alleged. 

At  the  trial  before  Martin,  B.,  at  the  London  sittings  after  last 
Hilary  term,  the  following  facts  appeared:  The  plaintiff  was  a  whole- 
sale druggist  in  London,  and  the  defendant  was  a  wholesale  druggist  at 
Liverpool.  For  many  years  past  the  plaintiff  had  been  in  the  habit  of 
contracting  with  one;  Carter,  a  farmer  at  Leverington  in  Cambridge- 
shire, for  tin'  purchase  of  all  the  oil  of  peppermint  to  be  distilled  from 
the  crop  of  peppermint   which   might  be  grown  on  his  farm  in  that 


SECT.  V.]  LANGTON   V.   HIGGINS. 


155 


jear.  The  contracts  were  made  in  the  early  part  of  the  year,  and 
Carter  obtained  from  the  plaintiff  advances  in  respect  of  them.  On 
the  27th  January,  1858,  the  plaintiff  and  Carter  entered  into  the  fol- 
lowing agreement :  — 

London,  Jan.  27,  1858. 

The  undersigned,  Frederick  Carter  of  Leverington,  agrees  to  sell  to 
Messrs.  William  Langton  &  Co.,  of  London,  the  whole  of  his  crop  of 
oil  of  peppermint  grown  in  the  year  1858,  at  the  rate  of  21s.  per  lb. 

But  should  the  said  crop  amount  to  250  bottles  of  oil,  he  agrees  to 
deduct  6c?.  per  lb.  from  the  said  21s.,  and  above  that  quantity  Is.  per 
11).,  provided  the  Messrs.  Langton  find  the  said  21s.  per  lb.  is  more  than 
they  can  reasonably  afford. 

^  This  agreement  is  made  upon  the  condition  that  Messrs.  Langton  & 
Co.  advance  the  said  Frederick  Carter  £1,000  on  account  of  the~above- 
named  crop,  and  pay  the  amount  due  at  time  of  delivery  by  two,  four, 
and  six  months'  bills. 

Fred.  Carter. 

Previously  to  this  agreement  advances  had  been  made  by  the  plain- 
tiff to  Carter,  to  the  extent  of  £310.  and  on  the  day  the  agreement 
was  signed  Carter  gave  to  the  plaintiff  a  bill  of  sale"  of  his  live  and 
dead  stock,  crop  of  oil  of  peppermint,  crops  of  corn,  furniture,  &c.,  as 
a  security  for  the  £310,  and  further  advances  to  the  extent  of  £1.000. 
It  was  usual  for  the  plaintiff  to  send  to  Carter  bottles  to  be  filled  with 
the  oil  of  peppermint,  and,  in  September,  Carter  applied  for  the  bottles 
and  some  gut-skin  to  cover  them.     The  plaintiff  accordinglv  sent  him 
two  gross  of  bottles   with  gut-skin.     On  the  8th  of  October,  Cartel- 
wrote  to  the  plaintiff,  »  We  shall  lose  no  time  in  getting  the  oil  off." 
It  was  the  business  of  Mrs.  Carter  to  put  the  oil  of  peppermint  in  the 
bottles,  which,  as  on  previous  occasions,  she  did  in  the  followino-  man- 
ner ;  She  first  weighed  the  empty  bottles  and  then  filled  them  with  the 
oil.     She  then  weighed  them  again,  having  previously  marked  the  tare 
and  weight  of  each  bottle  on  a  piece  of  paper  pasted  on  it.     She  then 
marked  the  gross  weight  of  the  oil  and  the  bottle,  and  added   them 
together  on  the  same  paper.     She  then  subtracted  the  tare,  and  placed 
the  net  weight  and  the  number  of  the  bottle  upon  the  paper,  and  laid 
the  bottle  aside.     After  the  bottles  were  filled,  by  Carter's  direction, 
she  made  out  invoices  and  address  cards,  which  she  placed  in  Carters 
desk.     She  was  engaged  in  these  operations  about  nine   days,   and 
finished  on   the   29th  of  September.      On  all  previous  occasions,   the 
bottles,  when  filled,  were  placed  in  cases  and  delivered  to  a  carrier  to 
take  to  the  railway  station,  to  be  forwarded  to  the  plaintiff  in   London. 
Carter  left  his  home  on  the  15th  of  October,  and  has  not  since  been 
heard  of.     The  defendant  purchased  of  Carter  fifteen  cases  of  the  oil 
of  peppermint,  nine  of  which  were  delivered  to  him  at  Liverpool  on 
the  16th  of  September,  and  the  others  on  the  23d. 

It  was  submitted  on  behalf  of  the  defendant  that  under  these  cir- 


156  LANGTON    V.    HIGGINS.  [CHAP.  II. 

cumstances  the  property  in  the  oil  of  peppermint  did  not  vest  in  the 
plaintiff.  The  learned  judge  directed  a  verdict  for  the  plaintiff  for 
£626  15*.,  reserving  leave  to  the  defendant  to  move  to  enter  a  nonsuit, 
or  to  reduce  the  amount  to  the  value  of  the  bottles. 

Atherton  and  Quain  showed  cause. 

Edward  James  and  Leofric  Temple,  in  support  of  the  rule. 

Bramwell,  B.  I  am  also  of  opinion  that  the  rule  ought  to  be  dis- 
charged. The  contract  is  to  sell  the  whole  of  the  vendor's  crop  of  oil 
of  peppermint  grown  in  a  certain  year.  I  do  not  think  that  when  the 
oil  was  made  the  property  passed,  —  possibly  there  may  have  been  an 
obligatio  certi  corporis  ;  but  it  appears  to  me  that  when  the  oil  was  put 
into  the  plaintiff's  bottles  the  property  in  it  vested  in  her.  I  do  not 
dissent  from  what  was  said  by  my  brother  Martin  with  respect  to  the 
delivery  to  a  carrier.  It  may  be  that  the  vendor  would  be  bound  to 
show  some  act  of  delivery  before  he  could  sue  for  the  price ;  but,  how- 
ever that  may  be,  I  am  of  opinion  that  the  property  vested  in  the 
plaintiff  when  the  oil  was  put  into  her  bottles.  Looking  at  the  prin- 
ciple, there  ought  to  be  no  doubt.  A  person  agrees  to  buy  a  certain 
article,  and  sends  his  bottles  to  the  seller  to  put  the  article  into.  The 
seller  puts  the  article  into  the  buyer's  bottles ;  then  is  there  any  rule  to 
say  that  the  property  does  not  pass?  The  buyer  in  effect  says,  "  I 
will  trust  you  to  deliver  into  my  bottles,  and  by  that  means  to  appro- 
priate to  me,  the  article  which  I  have  bought  of  you."  On  the  other 
hand  the  seller  must  be  taken  to  say,  "  You  have  sent  your  bottles,  and 
I  will  put  the  article  in  them  for  you."  In  all  reason,  when  a  vendee 
sends  his  ship,  or  cart,  or  cask,  or  bottle  to  the  vendor,  and  he  puts  the 
article  sold  into  it,  that  is  a  delivery  to  the  vendee.  If  we  could  sup- 
pose the  case  of  a  metal  vessel  filled  with  a  commodity  which  rendered 
the  vessel  useless  for  subsequent  purposes,  it  would  be  monstrous  if  the 
vendor  could  say,  "  I  have  destroyed  your  vessel  by  putting  into  it  the 
article  you  purchased,  but  still  the  property  in  the  article  never  passed 
to  you."  Or  suppose  a  vendor  was  to  deliver  a  ton  of  coals  into  the 
vendee's  cellar,  could  he  say,  "  I  have  put  the  coals  in  your  cellar,  but 
I  have  a  right  to  take  them  away  again"?  But  independently  of 
reason,  there  is  an  authority  on  the  subject.  In  Blackburn  on  Con- 
tracts, it  is  said  that  the  property  does  not  pass  unless  there  is  an 
intention  to  pass  it,  and  various  cases  are  cited  in  support  of  that  posi- 
tion. It  is  then  said,  p.  151,  that  two  rules  have  been  laid  down  on  the 
subject.  The  first  is,  "  that  where  by  the  agreement  the  vendor  is  to  do 
anything  to  the  goods,  for  the  purpose  of  putting  them  into  that  state 
in  which  the  purchaser  is  to  be  bound  to  accept  them,  or,  as  it  is  some- 
times worded,  into  a  deliverable  state,  the  performance  of  those  things 
shall  (in  the  absence  of  circumstances  indicating  a  contrary  intention) 
he  taken  to  be  a  condition  precedent  to  the  vesting  of  the  property-" 
Tin-  second  rule  is,  tk  that  where  anything  remains  to  be  done  to  the 
goods  for  the  purpose  of  ascertaining  the  price,  as  by  weighing,  measur- 
ing, or  testing  the  goods,  where  the  price  is  to  depend  on  the  quantity 


SECT.  V.]  CAMPBELL   V.   THE    MERSEY   DOCKS,   ETC.  107 

or  quality  of  the  goods,  the  performance  of  those  things  also  shall  be  a 
condition  precedent  to  the  transfer  of  the  property,  although  the  indi- 
vidual goods  be  ascertained,  and  the}'  are  in  the  state  in  which  they 
ought  to  be  accepted."  That  is  not  only  good  law,  but  good  sense. 
Then  can  there  be  more  complete  evidence  of  intention  to  pass  the 
property  than  when  the  vendee  sends  her  bottles  to  be  filled  with  the 
article  purchased,  and  the  vendor  puts  it  into  the  bottles?  Therefore, 
both  upon  principle  and  authority,  I  think  that  the  property  in  the  oil 
passed  to  the  plaintiff  when  it  was  put  into  the  bottles.  The  case  of 
Aldridge  v.  Johnson,  7  E.  &  B.  885,  is  precisely  in  point.  Lord  Camp- 
bell, C.  J.,  there  said  :  "Looking  to  all  that  was  done  when  the  bankrupt 
(the  vendor)  put  the  barley  in  the  sacks,  eo  instanti  the  property  in 
each  sackful  passed  to  the  plaintiff."  It  is  true  that  in  the  Law 
Journal,  Erie,  J.,  is  reported  to  have  said  that  the  outward  act  indi- 
cating the  vendor's  intention  was  by  filling  the  sacks  "  and  directing 
them  to  be  sent  to  the  railwa}'."  But  Crompton.  J.,  who  doubted  upon 
another  point,  said  that  "  when  the  barle}'  was  put  into  the  sacks,  it 
was  just  as  if  it  had  been  sent  by  a  carrier."  Therefore  there  is  not 
only  reason  and  general  authority,  but  also  the  case  of  Aldridge  v. 
Johnson,  to  warrant  our  judgment.  The  only  difficulty  I  had  was  this  : 
Suppose  the  oil  of  peppermint  had  been  badly  manufactured,  I  am 
not  prepared  to  assent  to  the  argument  that  the  plaintiff  would  not 
have  had  a  power  of  rejection.  Again,  suppose  only  a  portion  of  the 
oil  had  been  put  into  the  bottles,  inasmuch  as  the  plaintiff  was  not 
bound  to  take  a  part  only,  would  the  property  vest?  Aldridge  v. 
Johnson  is  an  authority  on  that  point.  It  may  be  that  the  plaintiff 
would  have  the  option  of  refusing  to  take  a  part  only  of  the  oil  or  of 
accepting  it,  but  that  right  is  not  inconsistent  with  the  property  vest- 
ing at  his  election.  It  might  vest  in  him  conclusively,  but  at  all  events 
it  would  vest  when  he  exercised  his  option.  For  these  reasons,  I  think 
that  the  rule  ought  to  be  discharged.  Rule  discharged.1 


CAMPBELL  v.  THE  MERSEY  DOCKS  AND  HARBOR  BOARD. 
In  the  Common  Pleas,  April  21,  1863. 

[Reported  in  14  Common  Bench  Reports,  Neio  Series,  412.] 

Tins  was  an  action  brought  by  the  plaintiff  to  recover  the  value  of 
250  bales  of  Surat  cotton  alleged  to  be  the  property  of  the  plaintiff, 
and  to  have  been  converted  by  the  defendants  under  the  following 
circumstances  :  — 

A  cargo  of  cotton  ex  "  Bosphorus."  consisting  of  500  bales,  arrived 
in  one  of  the  company's  docks  early  in  September,  1862.    The  plaintiff 

1  Pollock,  C.  B.,  and  Martin,  B.,  delivered  concurring  opinions. 


158  CAMPBELL   V.    THE   MERSEY   DOCKS,    ETC.  [CHAP.  II. 

was  the  broker  for  the  goods,  and  had  himself  bought  250  bales,  and 
had  sold  the  rest  to  other  parties.  The  landing  commenced  on  the 
8tb,  and  was  continued  on  the  9th  and  10th,  when  the  whole  were 
landed.  All  had  one  mark,  but  no  numbers  ;  the  numbers  being  affixed 
Ivy  the  company's  officers  at  the  time  of  landing  and  weighing.  The 
course  of  business  was,  for  the  broker  to  take  a  sample  from  each 
bale,  and  to  submit  the  samples  to  the  inspection  of  two  indifferent 
brokers,  and  on  their  fiat  the  contracts  were  affirmed  or  disaffirmed. 
On  the  present  occasion  the  contracts  were  affirmed.  On  the  13th  of 
September,  a  warrant,  or  certificate  of  warehouseing,  pursuant  to  the 
228th  section  of  the  company's  act  (20  &  21  Vict.  c.  162),  was  sent  to 
the  plaintiff  for  250  bales  described  as  being  numbered  from  1  to  250, 
and  as  "  entered  by  J.  P.  Campbell  on  the  10th  of  .September,  1802  ; 
rent  payable  from  the  15th  of  September."  The  plaintiff  thereupon 
paid  for  the  250  bales  getting  the  warrant  indorsed  to  him,  with  a 
delivery  order  "  for  the  above-mentioned  goods,"  dated  the  15th  of 
September.  On  the  7th  of  October,  the  plaintiff  resold  the  cotton,  and 
sent  the  warrant,  indorsed,  with  a  delivery  order  for  the  cotton  therein 
mentioned.  The  buyer  repudiated  the  contract,  on  the  ground  that  the 
cotton  did  not  correspond  with  the  samples  ;  and  then,  upon  the  plain- 
tiff demanding  back  the  warrant,  the  company's  officers  for  the  first  time 
informed  him  that  200  of  the  bales  numbered  1  to  250  had  been  inad- 
vertently delivered  on  the  11th  and  13th  of  September  to  other  persons, 
and  they  offered  him  a  fresh  warrant  for  other  numbers.  The  plaintiff, 
however,  declined  to  accept  it,  and  brought  this  action. 

At  the  trial,  before  Keating,  J.,  at  the  last  assizes  at  Liverpool,  it 
was  insisted  on  the  part  of  the  plaintiff  that  the  bales  mentioned  in 
the  warrant  were  so  ear-marked  and  appropriated  to  him  bj*  the  act 
of  the  company  as  to  vest  the  property  in  him  as  from  the  10th  of 
September. 

On  the  other  hand,  it  was  submitted  that  the  mere  act  of  appropri- 
ation by  the  company  of  250  out  of  a  larger  number  of  bales  was  not 
sufficient  to  vest  the  property  in  the  specific  bales  in  the  plaintiff  with- 
out an  assent  to  such  appropriation  on  his  part. 

To  this  latter  argument  the  learned  judge  inclined,  and  he  directed 
the  jury  accordingly. 

One  of  the  jury  asked  his  lordship  whether  the  indorsement  of  the 
warrant  by  the  plaintiff  did  not  amount  to  an  assent  on  his  part  to  the 
appropriation.  The  learned  judge  said  it  was  not  conclusive  ;  but  that 
it  was  open  to  the  company  to  show  that  the  appropriation  was  a  mis- 
take on  the  part  of  one  of  their  clerks. 

A  verdict  having  been  found  for  the  defendants, 

Edward  J<nnes,  Q.  C.  (with  whom  was  J.  A.  Russell),  moved  for  a 
new  trial. 

Eble,  C.  J.  I  am  of  opinion  that  there  should  be  no  rule  in  this 
case.  This  was  an  action  for  the  alleged  conversion  by  the  defendants 
of  250  bales  of  cotton  out  of  a  cargo  consisting  of  500  bales;  and  the 


SECT,  V.]  CAMPBELL   V.    THE   MEBSEY    DOCKS,    ETC.  159 

question  is  whether  or  not  the  property  in  those  250  bales  ever  vested 
in  the  plaintiff.  For  the  affirmative  of  that  proposition,  the  plaintiff 
relies  on  a  delivery  order  from  the  vendors  and  the  fact  that  the  de- 
fendants by  their  warrant,  or  certificate  of  warehousing,  had  specifically 
appropriated  to  him  the  bales  ex  "Bosphorus"  numbered  from  1  to  250. 
\{'  there  was  no  appropriation  by  the  company  to  the  plaintiff  of  the 
specific  numbers,  his  case  entirely  fails.  There  certainly  was  some 
evidence  of  appropriation  ;  and  the  question  left  to  the  jury  upon  that 
was,  whether  the  evidence  of  that  appropriation  did  not  arise  from  a 
mistake  on  the  part  of  the  company's  clerk.  The  learned  judge  is  not 
dissatisfied  with  the  finding  of  the  jury  upon  that  question.  Then  it  is 
said  that  the  learned  judge  misdirected  the  jury  in  telling  them  that  the 
mere  act  of  appropriation  by  the  company  would  not  vest  the  prop- 
erty in  the  plaintiff,  unless  he  had  assented  to  that  appropriation.  If 
there  was  no  appropriation,  this  point  becomes  immaterial.  But  if 
it  be  material,  1  venture  to  say  that  the  law  as  laid  down  by  the  learned 
judge  was  well  laid  down.  It  has  been  established  by  a  long  series  of 
cases,  —  of  which  it  will  be  enough  to  refer  to  Hanson  v.  Meyer,  6 
East,  614  ;  Rugg  v.  Minett,  11  ICast,  210  ;  and  Rohde  v.  Thwaites,  6  B. 
&  C.  388,  9  D.  &  R.  293,  — that  the  purchaser  of  an  unascertained 
portion  of  a  larger  bulk  acquires  no  property  in  an}'  part  until  there 
has  been  a  separation  and  an  appropriation  assented  to  both  by  vendor 
and  vendee.  Nothing  passes  until  there  is  an  assent,  express  or  im- 
plied, on  the  part  of  the  vendee.  The  warehouseman  may.  in  some 
cases,  be  the  agent  of  the  vendee  for  the  purpose  of  such  assent ;  but 
nothing  passes  until  there  has  been  a  separation  and  an  appropriation 
assented  to. 

Willes,  J.  I  am  entirely  of  the  same  opinion.  The  real  question 
was,  whether  the  appropriation  of  numbers  1  to  250  was  not  a  mistake. 
The  jury  found  in  substance  that  it  was.  No  property  in  the  goods 
therefore  ever  vested  in  the  plaintiff.  Mr.  James  complains  of  the 
alternative  which  was  put,  — assuming  that  there  was  an  appropriation, 
was  that  appropriation  assented  to  by  the  plaintiff?  The  cases  to 
which  my  lord  has  referred  show  what  the  law  on  the  subject  is.  And 
perhaps  the  case  of  Godts  v.  Rose,  17  C.  B.  229,  is  even  more  in  point 
to  show  that  there  must  not  only  be  an  appropriation,  but  an  appropri- 
ation assented  to  b}'  the  vendee.  The  assent  of  the  vendee  may  he 
given  prior  to  the  appropriation  b}'  the  vendor;  it  may  be  either 
express  or  implied  ;  and  it  may  be  given  by  an  agent  of  the  party.  — 
by  the  warehouseman  or  wharfinger,  for  instance.  In  stating  the  prop- 
osition as  he  did,  I  think  my  brother  Keating  stated  a  proposition  which 
is  in  strict  accordance  with  law. 

Byles,  J.,  concurred.  Rule  refused.1 

1  In  the  report  of  this  case  in  8  Law  Times,  n.  s.  845.  the  following  additional  fact 
appears  :  "  It  was  said  to  he  the  practice  at  Liverpool,  that  after  the  hales  are  nnm 
lured  the  first  purchaser  takes  those  whirl)  are  first  discharged  from  the  ship,  and 
consequently  marked  with  the  lowest  numbers." 


160  YOUNG   V.   MATTHEWS.  [CHAP.  II. 


YOUNG  and  Another  u.  MATTHEWS. 

In  the  Common  Pleas,  November  3,  18G6. 

[Reported  in  Law  Reports,  2  Common  Pleas,  127.] 

Trover  for  bricks. 

Pleas,  not  guilty  and  not  possessed. 

This  case  was  tried  before  Erie,  C.  J.,  at  the  sittings  for  London 
after  last  Trinity  term,  when  the  following  facts  were  proved  :  — 

The  plaintiffs  were  the  assignees  of  Moxon,  a  bankrupt.  Moxon 
was  a  builder  and  brickniaker,  and  in  the  early  part  of  18G5  had  drawn 
several  bills  of  exchange  on  one  Northen,  who  had  accepted  them  for 
his  accommodation.  When  the  bills  became  due  Moxon  was  unable 
to  pay  them,  and  agreed  to  sell  Northen  1,300,000  bricks,  and  an  in- 
voice of  them  was  made  out  to  him. 

Northen  sent  an  agent  to  the  brickfield  with  an  order  from  Moxon 
for  the  delivery  of  the  bricks,  and  Moxon's  foreman  then  stated  that 
the  ecclesiastical  commissioners,  who  were  the  owners  of  the  Held,  had 
put  in  a  distress  for  rent,  but  that  if  the  man  in  possession  were  paid 
out,  he  should  be  ready  to  deliver  the  bricks,  and  he  pointed  out  three 
clumps  from  which  he  should  make  the  deliver}',  of  which  one  consisted 
of  finished  bricks,  a  second  was  still  burning,  and  the  third  consisted  of 
bricks  which  had  been  moulded,  but  not  burnt.  Northen's  agent  then 
said,  "Do  I  clearly  understand  that  you  are  prepared,  and  will  hold 
and  deliver  this  said  quantity  of  bricks?"  and  Moxon's  foreman  said, 
"  Yes."  Subsequently  on  November  24,  1865,  Moxon  became  bank- 
rupt, and  the  ecclesiastical  commissioners  then  sold,  under  the  distress, 
sufficient  bricks  to  cover  the  rent,  and  Northen  afterwards  sold  the 
remainder  to  the  defendant,  who  removed  them  from  the  field. 

A  verdict  was  found  for  the  defendant,  and  leave  was  reserved  to  the 
plaintiffs  to  move  to  enter  the  verdict  for  them,  on  the  ground  that 
there  was  no  such  appropriation  of  the  goods  as  to  pass  the  property  in 
them  under  the  contract  of  sale. 

Ekle,  C.  J.  I  am  of  opinion  that  there  should  be  no  rule  in  this 
case.  The  question  is,  whether  the  property  in  the  bricks  passed  to 
Northen  or  not,  and  in  determining  this  we  are  to  look  at  the  intention 
of  the  parties.  It  is  very  material  that  Northen  had  made  large  ad- 
vances to  Moxon,  and  when  the  latter  became  embarrassed  he  might 
well  wish  to  have  all  he  could  appropriated  to  him.  The  well-known 
general  rule,  that  the  property  does  not  pass  to  the  buyer  while  any- 
thing remains  to  be  done  b}*  the  seller,  either  to  complete  the  goods  or 
to  ascertain  the  price,  does  not,  therefore,  apply  to  the  present  case. 
There  is  no  doubt  that  the  parties  could  pass  the  property  in  all  the 
bricks,  whether  finished  or  not,  if  such  was  their  intention;  and  what 
passed  amounted  to  this:  Northen's  agent  said,  "Arc  all  these  appro- 
priated to  my  principal?"  and  the  seller's  agent  said,  "Yes."     Even  if 


SECT.  V.]  JBNNER  V.   SMITH.  161 

this  were  not  so,  it  might  be  contended,  on  the  authority  of  Langton  v. 
Waring,  18  ('.  B.  (n.  s.)  31f>,  that  the  defendant  had  an  equitable  right 
to  the  goods  as  a  security  for  the  price  he  had  paid  for  them  ;  and  that 
the  assignees,  who  must  have  an  equitable  as  well  as  legal  title,  cannot 
therefore  recover.  Under  the  circumstances,  however,  it  is  unnecessary 
to  decide  this. 

Willes,  J.     I  am  of  the  same  opinion. 

Byles,  J.  This  is  not  like  a  sale  of  unascertained  goods  ;  the  goods 
were  ascertained  and  pointed  out,  though  not  finished  ;  and  it  appears 
to  have  been  the  intention  of  the  parties  that  the  property  in  them 
should  pass  to  Northern 

Keating,  J.,  concurred.  Rule  refused.1 


JENNER  v.   SMITH. 

In  the  Common  Pleas,  April  30,  1869. 

[Reported  in  Law  Reports,  4  Common  Pleas,  270.] 

Action  for  goods  bargained  and  sold  and  goods  sold  and  delivered. 
Pleas  :  Never  indebted,  payment,  and  payment  of  8s.  2d.  into  court. 
Replication,  taking  issue,  and  damages  ultra. 

The  cause  was  tried  before  Brett,  J.,  at  the  sittings  at  Westminster 
after  last  Michaelmas  term.  The  facts  were  as  follows:  On  the  14th 
of  October,  1867,  the  plaintiff,  who  is  a  hop-merchant  in  London,  met 
the  defendant,  a  maltster  of  Devizes,  at  Weyhill  Fair,  Hants.  The 
defendant  wished  to  buy  of  the  plaintiff  four  pockets  of  Carpenter's 
Sussex  hops  which  the  plaintiff  had  there  ;  but,  as  the  plaintiff  had 
already  sold  two  of  them,  he  proposed  to  sell  the  defendant  in  lieu  of 
them  two  pockets  of  Thorpe's,  of  which  he  showed  him  a  sample,  offer- 
ing to  let  the  defendant  have  the  two  pockets  of  Carpenter's  at  £9  per 
cwt.  (the  price  of  that  day's  fair  being  £9  9s.),  if  he  would  take  two 
pockets  of  Thorpe's  at  £7  15s.  per  cwt.  The  plaintiff  at  the  same  time 
or  shortly  after  informed  the  defendant  that  the  last-mentioned  two 
pockets  were  lying  at  Prid  &  Son's  warehouse,  Kentish  Buildings, 
Southwark,  and  agreed  that  he  should  have  them  upon  the  same  terms 
as  if  they  had  been  in  bulk  at  the  fair,  —  that  is,  that  he  should  be  at 
no  expense  for  warehousing  or  carriage.  The  defendant  consented  to 
purchase  the  four  pockets  upon  these  terms,  and  took  away  with  him 
the  two  pockets  of  Carpenter's,  but  requested  that  the  two  pockets  of 
Thorpe's  should  not  be  sent  until  he  wrote  for  them. 

The  plaintiff  had  at  this  time  three  pockets  of  Thorpe's  hops  at  the 
warehouse  of  Prid  &  Son.     On  the  21st  of  October,  the  plaintiff's  son 

1  It  is  a  fair  inference  from  the  facts  stated  in  the  report  of  tin's  ca«o  in  36  L.  J. 
C.  1'.  in ,  that  all  the  bricks  in  the  three  clumps  were  less  than  the  number  called  for  by 
the  contract. 

It 


162  JENNER   V.    SMITH.  [CHAP.  II. 

went  to  the  warehouse,  and  instructed  the  warehouseman  to  set  apart 
two  of  the  three  pockets  of  Thorpe's  for  the  defendant;  and  the  ware- 
houseman thereupon  placed  on  two  of  them,  numbered  respectively  one 
and  three,  what  is  called  a  "  wait  order  card,"  —  that  is,  a  card  upon 
which  was  written,  "  To  wait  orders,"  and  the  name  of  the  vendee. 
No  alteration,  however,  was  made  in  the  warehouse  books  ;  and  the 
plaintiff,  the  original  depositor,  still  remained  liable  for  the  rent. 

On  the  4th  of  November,  the  plaintiff  sent  the  defendant  an  invoice 
as  follows,  at  the  same  time  inclosing  a  draft  for  acceptance  :  — 

Mr.  S.  Smith,  Bought  of  Charles  Jenner, 

2  pockets  Sussex  hops  (Carpenter,  1867J, 
No.  2      ...     1  cwt.  2  qrs.  2G  lbs. 
4      ...     1  cwt.  2  qrs.  13  lbs. 

3  cwt.  1  qr.  11  lbs.  @  £9  per  cwt.  £30  2*.  8cl 

2  pockets  Sussex  hops  (Thorpe,  1867), 
No.  1       ...     1  cwt.  2  qrs.  27  lbs. 
3      ...     1  cwt.  Oqr.    21  lbs. 

2  cwt.  3  qrs.  20  lbs.  @  £7  155.  per  cwt.  £22  13s.  lOcl 

£52  16s.     6d. 
The  two  last  pockets  of  hops  are  13'ing  to  3-our  order. 

On  the  8th  of  November  the  defendant  wrrote  to  the  plaintiff  as 
follows  :  — 

Sir,  — I  have  returned  3'our  bill  unsigned  ;  but,  as  I  have  never  re- 
ceived the  two  pockets  of  hops  or  heard  anything  about  them,  I  con- 
cluded you  had  not  thought  of  sending  them,  and  have  made  an 
exchange  for  some  malt,  and  shall  not  require  them.  As  I  will  never 
sign  a  bill,  I  will  pay,  as  was  agreed,  in  February,  the  weight  of  the 
two  Carpenter's. 

The  defendant  subsequently  paid  the  price  of  the  two  pockets  which 
he  had  received,  all  but  a  small  balance  which  was  covered  by  the  pay- 
ment into  court. 

It  was  objected  on  the  part  of  the  defendant  that,  as  to  the  two 
pockets  of  Thorpe's  hops,  there  was  no  contract  binding  within  the 
Statute  of  Frauds,  no  delivery  or  acceptance,  or  part  payment,  and  no 
evidence  of  goods  bargained  and  sold. 

For  the  plaintiff  it  was  insisted  that  the  whole  was  one  bargain,  and 
consequently  that  there  had  been  a  part  delivery  and  part  payment, 
and  that  the  property  in  the  whole  four  pockets  passed  b}'  the  contract. 

The  learned  judge  ruled  that  it  was  one  entire  contract,  and  that, 
therefore,  there  had  been  a  part  delivery  so  as  to  make  a  contract  bind- 
ing within  the  Statute  of  Frauds ;  that  the  plaintiff  could  not  rely  upon 


SECT.  V.]  JENNER   V.    SMITH.  1G3 

the  part  payment,  beeause  the  defendant,  at  the  time  of  making  the 
payment,  repudiated  the  bargain  as  to  the  two  poekets  in  question  ; 
that,  though  there  was  a  binding  contract,  the  property  did  not  pass 
thereby,  inasmuch  as  the  contract  was  to  deliver  two  out  of  a  larger 
number  of  poekets  of  Thorpe's  hops  equal  to  sample,  the  price  to  be 
determined  according  to  the  weight ;  and  that  there  had  been  no  suffi- 
cient appropriation  afterwards  to  pass  the  property,  because  Prid  &  Son 
never  bound  themselves  to  hold  for  the  defendant  instead  of  for  the 
plaintiff.  He  thereupon  nonsuited  the  plaintiff,  reserving  him  leave  to 
move  to  enter  a  verdict  for  £22  13s.  10c/.,  the  court  to  draw  inferences 
of  fact. 

//  T.  Cole,  Q.  C,  and  Bromley  showed  cause. 

Morgan  Lloyd,  in  support  of  the  rule. 

Keating,  J.  I  am  of  opinion  that  this  rule  should  be  discharged. 
The  action  is  brought  to  recover  the  price  of  two  pockets  of  hops  as 
sold  and  delivered  and  bargained  and  sold.  It  appears  that  the  parties 
met  in  October,  1867,  at  Weyhill  Fair,  and  that  it  was  orally  agreed 
between  them  that  the  defendant  should  purchase  of  the  plaintiff  two 
pockets  of  Carpenter's  Sussex  hops,  which  were  then  in  the  fair,  and 
had  been  inspected  by  the  defendant,  at  £9  per  cwt.,  and  also  two 
pockets  of  Thorpe's  hops,  of  which  a  sample  was  shown,  at  £7  15s.  per 
cwt.  After  the  purchase  had  been  agreed  on,  the  defendant  was  in- 
formed that  the  latter  were  lying  in  a  warehouse  in  London,  and  he 
requested  that  they  might  be  left  there  until  he  sent  word  that  he  was 
ready  to  receive  them.  On  the  4th  of  November  the  plaintiff  sent  an 
invoice  describing  the  numbers,  weight,  and  price  of  the  four  pockets, 
with  an  intimation  that  the  two  pockets  of  Thorpe's  were  lying  at  the 
warehouse  to  the  defendant's  orders.  The  plaintiff  had  three  pockets 
of  Thorpe's  hops  at  the  warehouse  ;  and  he  had  in  the  mean  time  gone 
to  the  warehouse  and  directed  the  warehouse-keeper  to  put  certain 
marks  upon  twro  of  them,  to  indicate  that  they  were  sold  and  were  to 
wait  the  orders  of  the  purchaser.  No  alteration,  however,  was  made 
in  the  books  of  the  warehouse-keeper;  nor  was  any  intimation  of  this 
appropriation  of  the  two  pockets  given  to  the  defendant  until  the  4th  of 
November,  when  the  invoice  was  forwarded  to  him.  The  defendant 
declined  to  accept  the  two  pockets.  At  the  trial  various  objections 
were  urged.  It  was  said,  amongst  other  things,  that  there  was  no  con- 
tract as  to  the  two  pockets  of  Thorpe's  hops  to  bind  the  defendant 
within  §  17  of  the  Statute  of  Frauds;  that  the  contracts  for  the  pur- 
chase of  the  two  pockets  of  Carpenter's  hops  and  for  the  two  pockets 
of  Thorpe's  were  distinct  contracts;  and  that,  consequently,  there  had 
been  no  delivery  or  part-payment  to  take  the  case  out  of  the  statute. 
My  brother  Brett  ruled  that  the  contract  was  entire,  and  the  objection 
founded  upon  the  Statute  of  Frauds  was  thus  got  rid  of.  Then  came 
tlfe  question  whether  the  count  for  goods  sold  and  delivered  or  g 
bargained  and  sold  could  be  maintained,  the  property  in  the  goods  not 
having  passed.     Upon  this  my   brother  Brett  nonsuited  the  plaintiff 


164  JENNER   V.    SMITH.  [CHAP.  II. 

but  gave  leave  to  move  to  enter  a  verdict  for  the  plaintiff  for  the  price 
of  the  two  pockets  in  dispute,  reserving  power  to  the  court  to  draw 
such  inferences  as  a  jury  might  draw.  The  question  before  us,  there- 
fore, is,  whether,  upon  the  facts  proved,  we  can  see  that  the  property 
in  the  hops  passed  to  the  defendant  so  as  to  make  him  liable  in  this 
action.  The  general  rule  of  law  was  not  contested  on  the  part  of  the 
plaintiff,  that,  where  an  article  (not  specific)  is  sold,  but  something  re- 
mains to  be  done  by  the  vendor  before  it  is  despatched  to  the  vendee, 
no  property  passes  by  the  contract  of  sale.  It  was  contended  on  the 
part  of  the  defendant  that  much  remained  to  be  done  before  the  prop- 
erty could  pass,  —  that,  the  hops  having  been  sold  by  sample,  they 
would  require  to  be  inspected,  and  to  be  weighed,  in  order  to  ascertain 
the  price.  On  the  other  hand,  it  was  urged  that,  though  that  may  be 
so  as  a  general  rule,  Aldridge  v.  Johnson,  7  E.  &  B.  885,  26  L.  J.  (Q. 
B.)  296,  uud  other  cases,  show  that,  if  it  appears  from  the  contract  that 
the  vendee  has  made  the  vendor  his  agent,  for  the  purpose  of  weighing 
and  doing  all  the  other  acts  necessary  to  be  done  to  pass  the  property, 
the  property  in  the  goods  will  pass  so  soon  as  those  acts  are  done.  It 
is,  however,  observable  that  in  Aldridge  v.  Johnson  the  bulk  of  the 
barley  had  been  inspected  and  approved,  and  all  that  remained  to  be 
done  was  to  sever  and  measure  the  portion  to  be  appropriated  to  the 
vendee;  and  that  the  vendor  had  filled  a  number  of  sacks  which  had 
been  sent  by  the  vendee,  thereby  measuring  it.  The  barley  which  was 
to  be  appropriated  to  the  fulfilment  of  the  contract  was  therefore  sev- 
ered from  the  bulk  and  measured  with  the  assent  of  both  parties. 
There  could  be  no  doubt  that  the  property  in  the  barley  so  dealt  with 
passed.  Mr.  Lloyd  sought  to  bring  the  present  case  within  that  by 
Baying  that  a  similar  extensive  authority  was  conferred  by  the  defend- 
ant on  the  plaintiff  in  this  case.  I  cannot  draw  any  such  inference  from 
the  facts  proved  here;  on  the  contrary,  I  think  they  negative  it.  I 
cannot  suppose  that  the  defendant  meant  to  part  with  the  right  of  ob- 
jecting to  the  correspondence  of  the  hops  with  the  sample,  or  of  insist- 
ing on  the  weight  being  ascertained,  before  the  property  passed.  It  is 
true,  there  was  an  intimation  to  the  warehouse-keeper  that  the  two 
pockets  numbered  one  and  three  had  been  sold  to  the  defendant;  but 
no  transfer  was  made  in  his  books,  and  he  still  held  them  at  the  charge 
and  at  the  risk  of  the  vendor.  I  think  it  is  impossible  for  the  court  to 
draw  (he  inference  that  an  authority  such  as  was  given  in  Aldridge  v. 
Johnson,  7  E.  &  B.  885,  20  L.  J.  (Q.  B.)  296,  was  given  here;  and  if 
no  such  authority  was  given,  the  case  is  brought  within  the  multitude 
of  authorities  in  which  it  has  been  held  that,  where  there  is  a  sale  of 
unascertained  goods  with  reference  to  which  something  remains  to  be 
done  by  the  vendor  before  delivery  to  the  vendee,  no  property  passes 
until  that  has  been  done. 

Beett,  J.  At  the  trial  1  proposed  to  nonsuit  the  plaintiff,  on  tfic 
ground  that  there  was  no  evidence  to  go  to  the  jury  in  support  of  the 
count  for  goods  bargained  and  sold.     It  was  not  then  suggested  that 


SECT.  V.]  ANDERSON   V.   MOBICE.  1G5 

there  was  any  authority  from  the  defendant  to  the  plaintiff  to  select  the 
two  pockets  for  him.  If  it  had  been,  I  should  not  have  nonsuited 
the  plaintiff,  but  would  have  left  that  question  to  the  jury.  The  ques- 
tion now  is,  not  whether  there  was  an)-  evidence  for  the  jury,  but 
whether  the  court  can  infer  from  the  facts  proved  that  the  property  in 
the  two  pockets  of  Thorpe's  passed.  It  is  clear  that  no  property  passed 
by  the  contract  itself.  The  contract  was  for  a  sale  by  sample  of  un- 
ascertained bops,  the  price  depending  on  the  weight.  Then  comes  the 
ease  put  by  my  brother  Blackburn  in  the  passage  at  p.  127,  to  which 
I  referred  in  the  course  of  the  argument.  Here  there  was  no  pre- 
vious authority  given  to  the  plaintiff  to  appropriate  ;  and,  if  not,  what 
evidence  was  there  to  show  that  the  appropriation  of  the  two  pockets 
in  Prid  &  Son's  warehouse  was  ever  assented  to  by  the  defendant? 
The  defendant's  assent  might  have  been  given  in  either  of  two  ways,  — 
by  himself,  or  by  an  authorized  agent.  By  himself,  after  the  receipt  of 
the  letter  containing  the  invoice  ;  or  by  the  warehouse-keepers,  if  there 
had  been  any  evidence  of  agency  or  authority  in  them  to  accept,  and 
assent  by  them  to  hold  the  bops  for  him.  I  think  the  defendant's 
letter  refusing  to  accept  the  draft  was  strong,  if  not  conclusive,  to  show 
that  there  had  been  no  such  assent  by  the  defendant.  And,  as  to  Prid 
&  Son,  the  evidence  fails  on  both  points.  They  never  agreed  to  hold 
the  two  pockets  on  behalf  of  the  purchaser  ;  and,  if  they  did,  there  is 
no  evidence  of  any  authority  from  him  that  they  might  do  so.  Mr. 
Lloyd  has  strongly  put  forward  a  point  which  was  not  made  at  the 
trial,  viz.,  that  there  was  evidence  that,  by  agreement  between  the 
parties,  the  purchaser  gave  authority  to  the  seller  to  select  the  two 
pockets  for  him.  If  he  did  so,  he  gave  up  his  power  to  object  to  the 
weighing  and  to  the  goods  not  corresponding  with  the  sample  ;  for  he 
could  not  give  such  authority  and  reserve  his  right  so  to  object ;  and 
indeed  it  has  not  been  contended  that  he  gave  up  those  rights.  That 
seems  to  me  to  be  conclusive  to  show  that  the  defendant  never  nave  the 
plaintiff  authority  to  make  the  selection  so  as  to  bind  him.  Under  the 
circumstances,  therefore,  it  is  impossible  to  say  that  the  property  passed  ; 
consequently  the  plaintiff  cannot  recover  as  for  goods  bargained  and 
sold.  Mule  discharged. 


ANDERSON   v.    MORICE. 
In  the  Exchequer  Chamber,  June  26,  1875. 

[Reported  in  /.air  Reports,  10  Common  Pirns,  609.) 

The  judgment  of  Blackburn  and  Lush,  JJ.,  was  delivered  by 
Blackburn,  J.     In   this  case  the  defendant  is  an  underwriter  for 
£100  on  a  policy  in  the  ordinary  form   of  a   Lombard   Street  policy 
"at    and    from    Rangoon   to    any   port    or  place   of   discharge  in  the 
United  Kingdom  or  Continent,"  on  the  ship  "  Sunbeam." 


166  ANDERSON   V.    MORICE.  [CHAP.  II. 

The  subject-matter  of  the  insurance  is  described  as  "£5,500  (part 
of  £6,0<J0)  on  rice  as  interest  may  appear.  Amount  of  invoice  and 
15  per  cent  to  be  deemed  the  value  ;  average  payable  on  every  500 
bags." 

The  policy  contained  the  usual  printed  words,  "  Beginning  the 
adventure  upon  the  said  goods  and  merchandises  from  the  loading 
thereof  on  board  the  said  ship."  The  "Sunbeam,"  at  Rangoon, 
foundered  at  anchor  with  8,878  bags  of  rice  on  board.  And  this  rice 
was  totally  lost.  .   .   . 

The  first  question,  then,  to  be  determined  is,  whether  the  plaintiff 
was  so  situated  with  respect  to  the  rice  in  question  at  the  time  of  its 
loss  that  he  would,  if  uninsured,  have  suffered  any  loss  from  the 
destruction  of  the  rice  ;  and,  if  any  loss,  whether  that  loss  was  of 
such  a  nature  as  to  be  included  in  this  policy. 

The  facts  which  are  material  as  to  this  are  not  in  dispute.  The 
plaintiff,  Anderson,  had  made  a  contract  with  Messrs.  Borrodale,  con- 
tained in  a  bought  note  set  out  in  the  6th  paragraph  of  the  case.  The 
material  parts  are  these:  "  Bought  the  cargo  of  rice  per  'Sunbeam' 
at  9s.  \\d.  per  cwt.  cost  and  freight.  Payment  by  sellers'  draft  on 
purchasers  at  six  months'  sight,  with  documents  attached." 

The  "  Sunbeam,"  which  had  been  taken  up  by  Guben,  Christian, 
&  Co.,  the  sellers  of  the  cargo  to  Borrodale  &  Co.,  arrived  at  Rangoon 
within  the  time  mentioned  in  the  contract,  and  Guben,  Christian,  & 
Co.  proceeded  to  put  the  rice  on  board.  They  had,  by  the  31st  of 
March,  when  the  ship  was  lost,  put  8.878  bags  on  board  ;  but  this  was 
only  a  portion  of  what  they  intended  to  ship.  The  remainder  —  it 
does  not  distinctly  appear  whether  400  bags  or  1,600  bags,  but,  at  all 
events,  a  substantial  portion  of  what  they  intended  to  be  the  lading  of 
the  "Sunbeam"  —  was  in  lighters  or  on  the  shore,  intended  for  the 
"  Sunbeam,"  but  not  yet  on  board  of  her. 

The  time  for  preparing  the  shipping  documents  had  not  yet  arrived ; 
and  by  the  terms  of  the  bought  note,  Anderson  was  to  pay  by  accept- 
ing drafts  with  documents  attached. 

The  question  therefore  arises,  what  loss,  if  any,  did  Anderson  sus- 
tain by  the  perishing  of  this  rice  at  this  time?  It  was  admitted  by 
Mr.  Williams  in  the  argument,  and,  as  we  think,  could  not  be  dis- 
puted, that  if  the  rice  intended  for  the  "  Sunbeam,"  and  put  on  board 
the  lighter,  had  perished  before  it  was  put  on  board,  Anderson  would 
have  sustained  no  loss,  his  vendors  being  still  bound,  as  before,  to 
supply  him  with  rice,  though  that  which  they  had  intended  to  give  him 
had  perished  to  their  loss,  not  his,  because  it  was  then  at  their  risk, 
not  his. 

It  was  not  admitted  by  Mr.  Butt,  but  was  very  faintly  denied,  that 
as  soon  as  the  intended  lading  was  completed,  and  the  shipping  docu- 
ments were  either  prepared,  or  things  in  such  a  position  that  they 
could  be  prepared,  Anderson  would  have  been  bound  to  pay  for  the 
cargo,  though  from  subsequent  disaster  it  perished  either  at  Rangoon 


SECT.  V.]  ANDERSON    V.    MORICE.  167 

or  on  its  way  home.  We  all  think  it  is  the  plain  intention  of  the  par- 
ties to  this  contract  that,  from  the  time  the  lading  was  complete,  at 
least,  the  rice  was  to  be  at  the  risk  of  Anderson,  and  that  it  is  not 
material  to  consider  whether  he  would  have  had  the  full  property 
before  the  drafts  were  accepted.  But  there  remains  the  disputed  ques- 
tion whether  each  separate  bag  was  at  the  risk  of  Anderson  from  the 
time  it  was  put  on  board  the  "  Sunbeam,"  or  whether  it  remained  at  the 
risk  of  the  sellers  until  the  whole  intended  loading  was  complete,  and 
the  shipping  documents  were  ready,  or  at  least  everything  was  done 
to  enable  them  to  make  out  the  shipping  documents.  This,  we  think, 
depends  entirely  on  the  intention  of  the  parties  to  the  contract,  as 
appearing  from  it. 

There  is  nothing  to  prevent  the  parties  from  agreeing  that,  as 
the  goods  are  shipped  bag  by  bag,  each  bag  shall  be  at  the  risk  of 
Anderson,  though  the  payment  is  postponed  till  the  whole  is  on  board  ; 
and  if  they  have  sufficiently  expressed  such  an  intention,  then  Castle 
v.  Playford,  Law  Rep.  7  Ex.  98,  is  an  express  authority  in  this  court 
that  Anderson  must  bear  the  loss,  though  it  occurred  before  the  stipu- 
lated time  for  payment  had  arrived.  In  that  case  the  words  of  the 
contract  were  express,  and  left  no  doubt  that  the  intention  was  that 
the  buyer  was  to  bear  the  risk  ;  but  we  think  the  same  result  follows 
if  the  intention  sufficiently  appears,  though  it  is  not  in  express  terms. 

On  the  other  hand,  Appleby  v.  Myers,  Law  Rep.  2  C.  P.  651,  is  an 
express  authority  that,  if  from  the  contract  it  appears  that  the  inten- 
tion of  the  parties  is  that  the  payment  is  to  be  only  on  the  completion, 
nothing  can  be  recovered,  though  that  completion  is  prevented  by  an 
accident  for  which  neither  party  is  to  blame.  Both  decisions  are  bind- 
ing on  us,  even  if  we  disapproved  of  them  ;   but  we  agree  with  both. 

In  the  present  case  there  is  nothing  in  the  terms  of  the  contract  to 
indicate  that  the  parties  had  present  to  their  minds  the  possibility  of  a 
loss  happening  at  the  time  when  this  did,  and  consequently  there  are 
no  words  used  expressly  providing  for  it.  We  must  collect  the  inten- 
tion from  the  words  used,  applying  to  them  the  general  rules  which 
the  courts  have  from  time  to  time  adopted,  as  rules  to  enable  them  to 
ascertain  the  intention. 

The  cases  bearing  on  this  subject  are  collected  in  Mr.  Benjamin's 
book  on  Sales,  B.  2,  chaps.  2  to  6.  In  Gilmour  y.  Supple.  11  Moo. 
P.  C.  551,  5G6,  Sir  C.  Cresswell,  delivering  the  judgment  of  the  Privy 
Council,  says,  we  think  very  truly:  "  It  is  impossible  to  examine  the 
decisions  on  this  subject  without  being  struck  by  the  ingenuity  with 
which  sellers  have  contended  that  the  property  in  goods  contracted 
for  had  or  had  not  become  vested  in  the  buyers,  according  as  it  suited 
their  interest ;  and  buyers,  or  their  representatives,  have,  with  equal 
ingenuity,  endeavored  to  show  that  they  had  or  had  not  acquired  the 
property  in  that  for  which  they  had  contracted,  and  judges  have  not 
unnaturally  appeared  anxious  to  find  reasons  for  giving  a  judgment 
which  seemed  to  thorn  most  consistent  with  natural  justice.     Under 


168  ANDERSON   V.   MORICE.  [CHAP.  II. 

such  circumstances,  it  cannot  occasion  much  surprise  if  some  of  the 
numerous  reported  decisions  have  been  made  to  depend  upon  very 
nice  and  subtle  distinctions,  and  if  some  of  them  should  not  appear 
altogether  reconcilable  with  each  other.  Nevertheless,  we  think  that  in 
all  of  them  certain  rules  and  principles  have  been  recognized,  by  the 
application  of  which  to  this  case  we  may  be  enabled  to  arrive  at  a  cor- 
rect judgment  upon  it."  One  of  these  rules  is  thus  stated  in  Blackburn 
on  Sales,  p.  151  (see  Benjamin  on  Sales,  p.  235)  :  "  The  first  is,  that 
where  by  the  agreement  the  vendor  is  to  do  anything  to  the  goods  for 
the  purpose  of  putting  them  into  that  state  in  which  the  purchaser  is 
bound  to  accept  them,  or,  as  it  is  sometimes  worded,  into  a  deliverable 
state,  the  performance  of  these  things  shall  (in  the  absence  of  circum- 
stances indicating  a  contrary  intention)  be  taken  to  be  a  condition 
precedent  to  the  vesting  of  the  property."  This  is  in  effect  repeated 
in  the  judgment  in  Gilmour  v.  Supple,  11  Moo.  P.  C,  at  p.  568,  and 
is,  we  think,  consistent  with  all  the  cases. 

Now,  the  completing  the  lading  so  that  shipping  documents  could 
be  made  out  seems  to  us  a  thing  to  be  done  by  the  vendor  for  the 
purpose  of  putting  the  goods  into  a  deliverable  state,  or,  to  substitute 
the  language  of  Sir  C.  Cresswell,  an  act  to  be  done  by  the  seller  for 
the  benefit  of  the  buyer,  to  place  the  goods  in  a  state  to  be  delivered ; 
and,  therefore,  "  until  he  has  done  it  the  property  does  not  pass." 

But  we  agree  that  this  is  only  a  prima  facie  indication  of  the 
intention,  and  that  it  must  yield  to  anything  sufficiently  indicating  a 
contrary  intention.  We  must,  therefore,  look  to  the  contract  to  see 
if  there  are  any  indications  of  a  contrary  intention  in  this  case. 

It  may  be  observed  that  risk  and  property  generally  go  together,  and 
consequently  in  many  of  the  cases,  though  the  important  point  was,  at 
whose  risk  is  the  thing,  it  is  treated  as  if  the  sole  question  was,  whose 
property  is  it?  In  the  present  case,  however,  the  real  question  is,  at 
whose  risk  was  it?  and  we  do  not,  therefore,  attach  any  weight  to  the 
stipulation  that  the  seller  was  to  attach  the  shipping  documents  to  the 
drafts,  thereby  certainly  preserving  to  the  sellers  a  lien  on  the  goods 
till  the  drafts  were  accepted  and  the  bill  of  lading  handed  over,  and 
perhaps  preserving  in  them,  till  then,  the  property,  so  as  to  enable 
them  to  confer  a  title  on  a  purchaser  for  value  without  notice  as  good 
in  equity,  and  preferable  at  law  to  that  of  Anderson.  This  would  not 
prevent  the  risk  from  being  on  the  purchaser  from  the  time  the  load- 
ing was  complete.  Nor  do  we  proceed  on  the  ground  that  the  word 
"  cargo"  has  any  technical  sense  requiring  that  the  whole  ship  should 
be  filled  up.  But  we  do  proceed  on  the  ground  that  the  prima  facie 
rule  of  construction  is  that  the  parties  intended  that  the  risk  should 
become  that  of  the  buyer,  Anderson,  when,  and  not  till,  the  whole 
lading  was  complete,  so  as  to  enable  the  shippers,  by  getting  the  ship- 
ping  documents,  to  call  on  the  buyer  to  accept,  and  pay  for  the  cargo; 
and  that  there  is  nothing  in  this  contract  to  rebut  the  presumption 
that  such  was  the  intention.     "We  do  not  think  that  the  fact  that  the 


SECT.  V.]  HATCH   V.    OIL    CO.  109 

vessel  vvas  designated,  and  that,  unless  under  exceptional  circum- 
stances, the  seller  could  not,  without  the  consent  of  the  shipowner, 
take  any  goods  once  on  board  out  of  her,  affects  the  question  as 
between  the  vendor  and  purchaser. 

The  court  below  say  that  putting  any  rice  on  board  the  "  Sunbeam  " 
"  was  such  an  appropriation  of  the  rice  on  board  as  to  prevent  the 
sellers  from  withdrawing  that  rice  without  the  consent  of  the  buyer." 

If  we  could  see  anything  in  the  contract  to  give  the  buyer  a  right 
to  ohject,  we  should  think  it  indicated  an  intention  that  the  property 
so  put  on  board  should  be  at  the  buyer's  risk  ;  but  we  cannot  find 
anything  to  that  effect.  If  we  could  see  anything  to  indicate  an 
intention  that  as  each  bag  was  shipped  it  should  be  at  the  buyer's 
risk,  we  should  think  it  indicated  an  intention  that  it  should  not  be 
taken  out  without  his  consent.     But  we  cannot  reason  in  a  circle. 

We  have,  therefore,  come  to  the  conclusion  that  no  part  of  this 
rice  ever  was  at  the  plaintiff's  risk,  and  that  he  never  could  have  been 
called  upon  to  pay  for  it,  notwithstanding  its  loss. 

Judgment  reversed.1 


HATCH   v.   OIL   COMPANY. 

Supreme  Court  of  the  United  States,  October  Term,  1879. 

[100  United  States,  124.] 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  court. 

Contracts  for  the  purchase  and  sale  of  chattels,  if  complete  and  un- 
conditional and  not  within  the  Statute  of  Frauds,  are  sufficient,  as 
between  the  parties,  to  vest  the  property  in  the  purchaser,  even  with- 
out delivery  ;  the  rule  being  that  such  a  contract  constitutes  a  sale  of 
the  thing,  and  that  its  effect  is,  if  not  prejudicial  to  creditors,  to 
transfer  the  property  to  the  purchaser  against  every  person  not  hold- 
ing the  same  under  a  bona  fide  title  for  a  valuable  consideration  with- 
out notice.  The  Sarah  Ann,  2  Suinn.  211;  Gibson  v.  Stevens.  8 
How.  384,  399;  2  Kent,  Com.  (12th  ed.)  493;  Leonard  r.  Davis,  1 
Black,  476-483. 

Nine  hundred  and  forty-four  thousand  white-oak  barrel-stave-,  of 
the  value  of  $17,500,  were  attached  by  the  defendant  as  sheriff  of  the 
county  under  certain  processes  mesne  and  final,  which  he  held  for  ser- 
vice against  the  manufacturers  of  the  staves,  to  secure  certain  debts 
which  they  owed  to  their  creditors.  No  irregularity  in  the  proceed- 
ings is  suggested,  but  the  plaintiffs  claimed  to  be  the  owners  of  the 
staves  by  purchase  from  the  manufacturers,  and  they  brought  replevin 

1  Bramwell,  B.,  delivered  a  concurring  opinion  for  himself  and  Pollock  and 
Amphlett,  BR.  On  appeal  t<>  tin'  House  of  Lords,  the  decision  was  affirmed,  the 
Lords  being  equally  divided  in  opinion. 


170 


HATCH   V.   OIL   CO.  [CHAP.  II. 


to  recover  the  property.  Service  was  made,  and  the  defendant  ap- 
peared and  demanded  a  trial  of  the  matters  set  forth  in  the  declara- 
tion. Issue  having  been  joined  between  the  parties,  they  went  to 
trial,  and  the  verdict  and  judgment  were  in  favor  of  the  plaintiffs; 
Exceptions  were  filed  by  the  defendant,  and  he  sued  out  the  present 
writ  of  error. 

Errors  assigned  in  the  court  are  as  follows  :  1.  That  the  court  erred 
in  instructing  the  jury  that  as  soon  as  the  staves  were  piled  and 
counted,  as  provided  in  the  second  agreement,  the  title  to  the  same 
vested  in  the  plaintiff  company  as  vendee,  and  in  refusing  to  instruct 
the  jury  that  the  only  interest  the  plaintiffs  acquired  in  the  staves 
before  they  were  delivered  was  as  security  for  advances  in  the  nature 
of  a  mortgage  interest.  2.  That  the  court  erred  in  refusing  to  in- 
struct the  jury  that  if  there  was  no  actual  delivery  of  the  property 
and  change  of  possession  the  agreement  of  sale  was  void  as  against 
the  creditors  of  the  manufacturers,  because  not  recorded  as  required 
by  statute.  3.  That  the  court  erred  in  refusing  to  instruct  the  jury 
that  if  the  evidence  did  not  show  that  the  fifty  thousand  staves  not 
piled  on  the  leased  land  were  not  counted,  the  title  to  that  parcel  did 
not  pass  to  the  plaintiffs  for  any  purpose,  and  that  the  defendant,  as 
to  that  parcel,  was  entitled  to  their  verdict.  4.  That  the  court  erred 
in  refusing  to  instruct  the  jury  that  under  the  agreement  no  title  to 
any  of  the  staves  passed  to  the  plaintiffs  until  they  were  actually 
placed  upon  the  leased  land  and  were  counted  by  the  designated  per- 
son, and  in  instructing  the  jury  that  the  title  to  the  staves  piled  near 
the  leased  land  passed  to  the  plaintiffs.  5.  That  the  court  erred  in 
refusing  to  instruct  the  jury  that  no  title  to  any  staves  passed  to  the 
plaintiffs  other  than  those  contracted  to  be  sold  by  the  first  agreement, 
and  that  if  the  jury  find  that  there  was  any  portion  of  the  staves  re- 
plevied not  of  that  description,  that  as  to  such  portion  the  plaintiffs 
are  not  entitled  to  recover.  6.  That  the  court  erred  in  excluding  the 
testimony  offered  by  the  defendant,  as  set  forth  in  the  record. 

Sufficient  appears  to  show  that  the  manufacturers  of  the  staves,  on 
the  day  alleged,  contracted  with  the  plaintiffs  to  sell  them  one  million 
of  white-oak  barrel-staves  of  certain  described  dimensions,  to  be  de- 
livered as  therein  provided,  for  the  price  of  $30  per  thousand,  subject 
to  count  and  inspection  by  the  plaintiffs,  who  agreed  to  receive  and 
pay  for  the  same  as  fast  as  inspected.  But  before  the  staves  had 
been  furnished,  to  wit,  on  the  28th  of  August  in  the  same  year,  the 
parties  entered  into  a  new  agreement  in  regard  to  the  staves,  in  which 
they  refer  to  the  prior  one,  and  stipulate  that  it  is  to  continue  in 
operation,  subject  to  modifications  made  in  the  new  contract,  of  which 
the  following  are  very  material  to  the  present  investigation:  1.  That 
the  manufacturers  shall  make  and  deliver  the  staves  properly  piled  in 
some  convenient  place,  to  be  agreed  between  the  parties,  on  land  in 
Deerfield,  to  be  controlled  by  the  plaintiffs,  and  that  the  delivery  shall 
be  made  as  fast  as  the  staves  are  sawed.     2.  That  the  plaintiff  shall 


SECT.  V.]  HATCH   V.   OIL   CO.  171 

furnish  :i  man  to  count  the  staves  from  week  to  week  as  the  same 
shall  be  piled.  :;.  That  when  the  staves  shall  be  so  piled  and  counted, 
the  person  counting  the  same  shall  give  the  manufacturers  a  certificate 
of  the  amount,  which,  when  presented  to  the  plaintiffs,  shall  entitle 
the  party  to  a  payment  of  817  per  thousand  as  part  of  the  purchase 
price.  4.  That  upon  the  piling  and  counting  of  the  staves  as  pro- 
vided, 4t  the  delivery  of  the  same  shall  be  deemed  complete,  and  that 
said  staves  shall  then  become  and  thenceforth  be  the  property  of  the 
plaintiffs  absolutely  and   unconditionally." 

Other  material  modifications  of  the  first  agreement  were  made  by 
the  second,  some  of  which  it  is  not  deemed  necessary  to  consider  in 
disposing  of  the  case. 

Early  measures  were  adopted  to  perfect  the  arrangement,  as  ap- 
pears from  the  fact  that  the  manufacturers,  October  4  in  the  same 
year,  leased  to  the  plaintiffs  a  small  tract  of  land  to  be  used  for  piling 
and  storing  the  staves  ;  and  the  case  shows  that  all  the  staves  except 
fifty  thousand  were  piled  on  that  site,  the  fifty  thousand  staves  being 
piled  on  land  owned  by  the  manufacturers,  about  one  hundred  or 
one  hundred  and  fifty  feet  distant  from  the  pile  on  the  leased  tract, 
on  which  were  certain  buildings  owned  and  occupied  by  the  lessors^ 
the  mill  where  the  staves  were  manufactured  being  situated  on  the 
same  section  a  little  distant  from  the  other  buildings.  None  of  the 
staves  were  manufactured  when  the  contracts  were  made. 

It  was  admitted  by  the  plaintiffs  that  the  lease  was  never  filed  in 
the  clerk's  office  aud  that  it  was  never  recorded  in  the  office  of  the 
county  register  of  deeds.  Certain  admissions  were  also  made  by  the 
defendant,  as  follows:  That  the  parties  to  the  contracts  acted  in 
good  faith  in  making  the  same,  and  that  the  contracts  and  lease  were 
duly  executed  ;  that  all  the  staves  seized  were  manufactured  by  the 
said  contractors,  and  that  all  except  fifty  thousand  of  the  same  were 
piled  on  the  leased  tract. 

Nothing  was  required  at  common  law  to  give  validity  to  a  sale  of 
personal  property  except  the  mutual  assent  of  the  pjfcies  to  the  con- 
tract. As  soon  as  it  was  shown  by  competent  evidence  that  it  was 
agreed  by  mutual  assent  that  the  one  should  transfer  the  absolute  pro- 
perty in  the  thing  to  the  other  for  a  money  price,  the  contract  was 
considered  as  completely  proven  and  binding  on  both  parties.  If  the 
property  by  the  terms  of  the  agreement  passed  immediately  to  the 
buyer,  the. contract  was  deemed  a  bargain  and  sale  ;  but  if  the  pro- 
perty in  the  thing  sold  was  to  remain  for  a  time  in  the  seller,  and  only 
to  pass  to  the  buyer  at  a  future  time  or  on  certain  conditions  incon- 
sistent with  its  immediate  transfer,  the  contract  was  deemed  an  execu- 
tory agreement.  Contracts  of  the  kind  are  made  in  both  forms,  and 
both  are  equally  legal  and  valid  ;  but  the  rights  which  the  parties 
acquire  under  the  one  are  very  different  from  those  secured  under  the 
other.  Ambiguity  or  incompleteness  of  language  in  the  one  or  the 
other  frequently  leads  to  litigation  ;  but  it  is  ordinarily  correct  to  say, 


172  HATCH    V.    OIL    CO.  [CHAP.  II. 

that  whenever  a  controversy  arises  in  such  a  case  as  to  the  true  cha- 
racter of  the  agreement,  the  questiou  is  rather  one  of  iuteutiou  than 
of  strict  law,  the  general  rule  being  that  the  agreement  is  just  what 
the  parties  intended  to  make  it,  if  the  intent  can  be  collected  from 
the  language  employed,  the  subject-matter,  and  the  attendant 
circumstances. 

"Where  the  specific  goods  to  which  the  contract  is  to  attach  are  not 
specified,  the  ordinary  conclusion  is  that  the  parties  only  contemplated 
an  executory  agreement.  Reported  cases  illustrate  and  confirm  that 
proposition,  and  many  show  that  where  the  goods  to  be  transferred 
are  clearly  specified  and  the  terms  of  sale,  including  the  price,  are 
explicitly  given,  the  property,  as  between  the  parties,  passes  to  the 
buyer  even  without  actual  payment  or  delivery.  2  Kent,  Com.  (12th 
ed.)  492;  Tome  v.  Dubois,  *6  Wall.  548,  554;  Carpenter  v.  Hale,  8 
Gray  (Mass.),  157;  Martineau  v.  Kitching,  Law  Rep.  7  Q.  B.  436, 
449  ;  Story,  Sales  (4th  ed.),  sect.  300. 

Standard  authorities  also  show  that  where  there  is  no  manifestation 
of  intention,  except  what  arises  from  the  terms  of  sale,  the  presump- 
tion is,  if  the  thing  to  be  sold  is  specified  and  it  is  ready  for  the  imme- 
diate delivery,  that  the  contract  is  an  actual  sale,  unless  there  is 
something  In  the  subject-matter  or  attendant  circumstances  to  indicate 
a  different  intention.  Well-founded  doubt  upon  that  subject  cannot  be 
entertained  if  the  terms  of  bargain  and  sale,  including  the  price,  are 
explicit ;  but  when  the  thing  to  be  sold  is  not  specified,  or  if  when 
specified  something  remains  to  be  done  to  the  same  by  the  vendor, 
either  to  put  it  into  a  deliverable  state  or  to  ascertain  the  price,  the 
contract  is  only  executory.  In  the  former  case  there  is  no  reason  for 
imputing  to  the  parties  any  intention  to  suspend  the  transfer,  inas- 
much as  the  thing  to  be  sold  and  the  price  have  been  specified  and 
agreed  by  mutual  consent,  and  nothing  remains  to  be  done.  Quite 
unlike  that,  something  material  remains  to  be  done  by  the  seller  in  the 
latter  case  before  delivery,  from'  which  it  may  be  presumed  that 
the  parties  interfiled  to  make  the  transfer  dependent  upon  the  perfor- 
mance of  the  things  yet  to  be  done. 

Suppose  that  is  so,  still  every  presumption  of  the  kind  must  yield 
to  proof  of  a  contrary  intent,  and  it  may  safely  be  affirmed  that  the 
parties  may  effectually  agree  that  the  property  in  the  specific  thing 
sold,  if  ready  for  delivery,  shall*  pass  to  the  buyer  before  such  require- 
ments  are  fulfilled,  even  though  the  thing  remains  in  the  possession  of 

the.  seller. 

Where  a  bargain  is  made  for  the  purchase  of  goods,  and  nothing  is 
snid  about  payment  or  delivery,  Kailey,  J.,  said  the  property  passes 
immediately,  so  as  to  cast  upon  the  purchaser  all  future  risk,  if  noth- 
ing remains  to  be  done  to  the  goods,  although  he  cannot  take  them 
away  without  paving  the  price.     Simmons  '•.  Swift,  5  1>.  &  C.  857. 

Sales  of  goods  not  specified  stand  upon  a  different  footing,  the 
general  rule  being  that  no  property  in  such  goods  passes  until  delivery, 


SECT.  V.]  HATCH    V.    OIL   CO.  173 

because  until  then  the  very  goods  sold  are  not  ascertained.  But  where 
by  the  contract  itself  the  vendor  appropriates  to  the  vendee  a  specific 
chattel,  and  the  latter  thereby  agrees  to  take  the  same  and  to  pay  the 
stipulated  price,  the  parties,  says  Parke,  J.,  are  thus  in  the  same  situ- 
ation as  they  would  be  after  a  delivery  of  goods  under  a  general  con- 
tract, for  the  reason  that  the  very  appropriation  of  the  chattel  is 
equivalent  to  delivery  by  the  vendor,  and  the  assent  of  the  vendee  to 
take  the  specific  chattel  and  to  pay  the  price  is  equivalent  to  his  ac- 
cepting possession.  Dixon  v.  Yates,  5  Barn.  &  Adol.  313,  340  ;  Shep. 
Touch.  224. 

When  the  agreement  for  sale  is  of  a  thing  not  specified,  or  for  an 
article  not  manufactured,  or  of  a  certain  quantity  of  goods  in  general 
without  any  identification  of  them  or  an  appropriation  of  the  same  to 
the  contract,  or  when  something  remains  to  be  done  to  put  the  goods 
into  a  deliverable  state,  or  to  ascertain  the  price  to  be  paid  by  the 
buyer,  the  contract  is  merely  an  executory  agreement,  unless  it  con- 
tains words  warranting  a  different  construction,  or  there  be  something 
in  the  subject-matter  or  the  circumstances  to  indicate  a  different  inten- 
tion. Benjamin,  Sales  (2d  ed.),  257;  Blackburn,  Sales,  151  ;  Young 
v.  Matthews,  Law  Rep.  2  C.  P.  127-129;  Logan  v.  Le  Mesurier,  6 
Moore  P.  C.  C.  116;  Ogg  v.  Shuter,  Law  Rep.  10  C.  P.  159-162; 
Langton  v.  Higgins,  4  H.  &  N.  400  ;  Turley  v.  Bates,  2  H.  &  C.  200- 
208. 

Exactly  the  same  views  are  expressed  by  the  Supreme  Court  of  the 
State  as  those  maintained  in  the  preceding  cases.  Speaking  to  the 
same  point,  Cooley,  C.  J.,  says,  when,  under  a  contract  for  the  pur- 
chase of  personal  property,  something  remains  to  be  done  to  identify 
the  property  or  to  put  it  in  a  condition  for  delivery,  or  to  determine 
the  sum  that  shall  be  paid  for  it,  the  presumption  is  always  very 
strong,  that  by  the  understanding  of  the  parties  the  title  is  not  to  pass 
until  such  act  has  been  fully  accomplished.  Such  a  presumption, 
however,  is  by  no  means  conclusive  ;  for  if  one  bargains  with  another 
for  the  purchase  of  such  property,  and  the  parties  agree  that  what  they 
do  in  respect  to  its  transfer  shall  have  the  effect  to  vest  the  title  in  the 
buyer,  he  will  become  the  owner,  as  the  question  is  merely  one  of 
mutual  assent,  the  rule  being,  that  if  the  minds  of  the  parties  have 
met,  and  they  have  agreed  that  the  title  shall  pass,  nothing  further,  as 
between  themselves,  is  required,  unless  the  case  is  one  within  the 
Statute  of  Frauds.  Consequently,  it  was  held  by  the  same  court  that 
if  one  purchases  gold  bullion  by  weight,  and  receives  delivery  before  it 
becomes  convenient  to  weigh  it,  and  on  the  understanding  that  the  weigh- 
ing shall  be  done  afterwards,  the  bullion  would  become  the  property 
of  the  buyer  and  be  at  his  risk,  unless  there  were  some  qualifying  cir- 
cumstances in  the  case.  Wilkinson  v.  Holiday,  33  Mich.  386-388  ; 
Lingham  v.  Eggleston,  27  id.  324,  328  ;  Ortman  v.  Green,  26  id.  209, 
212. 

Decisions  of  other  States  are  to  the  same  effect,  of  which  the  fol- 
lowing are  examples :  Pacific  Iron  Works  v.   Long  Island  Railroad 


174  HATCH    V.    OIL   CO.  [CHAP.  II. 

Co.,  62  N.  Y.  272,  274  ;  Groff  v.  Belche,  62  Mo.  400-402  ;  Morse  v. 
Sherman.  IOC,  Mass.  430,  433;  Riddle  v.  Varnum,  20  Pick.  (Mass.) 
280,  283;  Chapman  v.  Shepard,  39  Conn.  413-419;  Fuller  v.  Bean, 
34  N.  H.  290-300. 

Modern  decisions  of  the  most  recent  date  support  the  proposition 
that  a  contract  for  the  sale  of  specific  ascertained  goods  vests  the 
property  immediately  in  the  buyer,  and  that  it  gives  to  the  seller  a 
right. to  the  price,  unless  it  is  shown  that  such  was  not  the  intention  of 
the  parties.  Gilmore  v.  Supple,  11  Moore  P.  C.  C.  551  ;  Benjamin, 
Sales  (2d  ed.),  280  ;  Dunlop  v.  Lambert  ,  6  CI.  &  Fin.  600  ;  Calcutta 
Co.  v.  De  Mattos,  32  Law  J.  Rep.  n.  s.  Q.  B.  322-338. 

"There  is  no  rule  of  law,"  says  Blackburn,  J.,  in  the  case  last 
cited,  "  to  prevent  the  parties  in  such  cases  from  making  whatever 
bargain  they  please.  If  they  use  words  in  the  contract  showing  that 
they  intend  that  the  goods  shall  be  shipped  by  the  person  who  is  to 
supply  the  same,  on  the  terms  that  when  shipped  they  shall  be  the 
consignee's  property  and  at  his  risk,  so  that  the  vendor  shall  be  paid 
for  them  whether  delivered  at  the  port  of  destination  or  not,  this  in- 
tention is  effectual."     s.  c.  33  id.  214  ;  11  W.  R.  1024,  1027. 

Support  in  some  of  the  cases  cited  is  found  to  the  theory  that  the 
terms  of  the  bargain  and  sale  in  this  case,  inasmuch  as  they  indicate 
that  the  intention  of  the  sellers  was  to  appropriate  the  staves  when 
manufactured  to  the  contract,  are  sufficient  to  vest  the  property  in  the 
buyer  when  the  agreed  sum  to  be  advanced  was  paid  even  without  any 
delivery  ;  but  it  is  quite  unnecessary  to  decide  that  question  in  view  of 
the  evidence  and  what  follows  in  the  second  contract  between  the 
parties. 

Provision  was  made  that  a  convenient  place  should  be  designated 
by  the  parties  where  the  staves  should  be  piled  as  fast  as  they  should 
be  sawed.  Such  a  place  was  provided  to  the  acceptance  of  both 
parties,  and  the  plaintiffs  furnished  a  man  as  agreed  to  count  the 
same  from  week  to  week  as  the  staves  were  piled.  Enough  appears 
to  show  that  all  the  staves,  except  as  aforesaid,  were  piled  and  de- 
livered at  that  agreed  place. 

In  a  contract  of  sale,  if  no  place  of  delivery  is  specified  in  the  con- 
tract, the  articles  sold  must,  in  general,  be  delivered  at  the  place 
where  they  are  at  the  time  of  the  sale,  unless  some  other  place  is  re- 
quired by  the  nature  of  the  article  or  by  the  usage  of  the  trade  or  the 
previous  course  of  dealing  between  the  parties,  or  is  to  be  inferred 
from  the  circumstances  of  the  case.  Decided  cases  to  that  effect  are 
numerous  ;  but  the  rule  is  universal,  that  if  a  place  of  delivery  is  pre- 
scribed  as  a  part  of  the  contract  the  vendee  is  not  bound  to  accept  a 
tender  of  the  goods  made  in  any  other  place,  nor  is  the  vendor  obliged 
to  make  a  tender  elsewhere.     Story,  Sales  (4th  ed.),  sect.  308. 

Where,  by  the  terms  of  the  contract,  the  article  is  to  be  delivered  at 
a  particular  place,  the  seller,  before  he  can  recover  his  pay,  is  bound 
to  prove  the  delivery  at  that  place.  Savage  Manuf.  Co.  v.  Armstrong, 
19  Me.  147. 


SECT.  V.]  HATCH   V.    OIL   CO.  175 

So  when  the  intention  of  the  parties  as  to  the  place  of  delivery  can 
be  collected  from  the  contract,  and  the  circumstances  proved  in  relation 
to  it,  the  delivery  should  be  made  at  such  place,  even  though  some 
alterations  have  been  made  in  the  place  designated.  Howard  v.  Miner, 
20  id.  325-330. 

Much  discussion  is  certainly  unnecessary  to  show  that,  where  the 
terms  of  bargain  and  sale  are  in  the  usual  form,  an  absolute  delivery 
of  the  articles  sold  vests  the  title  in  the  purchaser,  as  the  authorities 
upon  the  subject  to  that  effect  are  numerous,  unanimous,  and  decisive. 
Hyde  v.  Lathrop,  3  Keyes  (N.  Y.),  597;  Macomber  v.  Parker,  13 
Pick.  (Mass.)  175,  183. 

In  an  action  for  goods  sold  and  delivered,  if  the  plaintiff  proves  de- 
livery at  the  place  agreed  and  that  there  remained  nothing  further  for 
him  to  do,  he  need  not  show  an  acceptance  by  the  defendant.  Nichols 
v.  Morse,  100  Mass.  523. 

Even  when  a  place  of  delivery  is  specified,  it  does  not  necessarily 
follow  that  the  title  does  not  pass  before  they  reach  the  designated 
place,  as  that  may  depend  upon  the  intention  of  the  parties  ;  and 
whether  they  did  or  did  not  intend  that  the  title  should  vest  before 
that  is  a  question  for  the  jury,  to  be  determined  by  the  words,  acts, 
and  conduct  of  the  parties  and  all  the  circumstances.  Dyer  v.  Libbey, 
61  Me.  4;"). 

Where  it  appears  that  there  has  been  a  complete  delivery  of  the 
property  in  accordance  with  the  terms  of  a  sale,  the  title  passes,  al- 
though there  remains  something  to  be  done  in  order  to  ascertain  the 
total  value  of  the  goods  at  the  rates  specified  in  the  contract.  Bur- 
rows v.  Whitaker,  71  N.  Y.  291-296  ;  Graft  v.  Fitch,  58  111.  373  ; 
Russell  v.  Carrington,  42  N.  Y.  118,  1.25;  Terry  v.  Wheeler,  25  id. 
520,  525. 

Beyond  controversy,  such  must  be  the  rule  in  this  case,  because  the 
contract  provides  that  upon  the  piling  and  counting  the  staves  as  re- 
quired by  the  instrument  the  delivery  of  the  same  shall  be  deemed 
complete,  and  that  the  staves  shall  then  become  and  henceforth  be 
the  property  of  the  plaintiffs  absolutely  and  unconditionally. 

Except  the  fifty  thousand  before  named,  all  the  staves  were  so  piled 
and  counted  ;  and  the  case  shows  that  the  person  designated  to  count  the 
same  approved  fourteen  certificates  specifying  the  respective  amounts 
of  the  several  parcels  delivered,  and  that  the  plaintiffs  paid  on  each 
the  $17  per  thousand  advance  as  agreed,  amounting  in  all  to 
$15,1  t8. 

Personal  property  may  be  purchased  in  an  unfinished  condition,  and 
the  buyer  may  acquire  the  title  to  the  same,  though  the  possession  be 
retained  by  the  vendor  in  order  that  he  may  fit  it  for  delivery,  if  the 
intention  of  the  parties  to  that  effect  is  fully  proved.  El2,ee  Cotton 
Cases,  22  Wall.  180. 

After  an  executory  contract  has  been  made,  it  may  be  converted 
into  a  complete  bargain  and  sale  by  specifying  the  goods  to  which  the 


176  HATCH   V.    OIL   CO.  [CHAP.  II. 

contract  is  to  attach,  or,  in  legal  phrase,  by  the  appropriation  of  spe- 
cific goods  to  the  contract,  as  the  sole  element  deficient  in  a  perfect  sale 
is  thus  supplied.  Benjamin,  Sales  (2d  ed.),  263  ;  Rohde  v.  Thwaites, 
6  B.  &  C.  388. 

Examples  of  the  kind  are  numerous  in  cases  where  the  goods  are 
not  specified,  and  the  decided  cases  show  that  if  the  seller  subse- 
quently selects  the  goods  and  the  buyer  adopts  his  acts,  the  contract 
which  before  was  a  mere  agreement  is  converted  into  an  actual  sale 
and  the  property  passes  to  the  buyer.  One  hundred  quarters  of 
barley  out  of  a  bulk  in  a  granary  were  agreed  to  be  purchased  by  the 
plaintiff,  he  having  agreed  to  send  his  own  sacks,  in  which  the  same 
might  be  conveyed  to  an  agreed  place.  He  sent  sacks  enough  to  con- 
tain a  certain  part  of  the  barley,  which  the  seller  filled,  but,  being  on 
the  eve  of  bankruptcy,  he  refused  to  deliver  any  part  of  the  quantity 
sold,  and  emptied  the  barley  in  the  sacks  back  into  the  bulk  in  the 
granary.  Held,  in  an  action  brought  to  recover  the  whole  amount, 
that  the  quantity  placed  in  the  sacks  passed  to  the  purchaser,  as  that 
part  was  appropriated  by  the  bankrupt  to  the  plaintiff.  Aldridge  v. 
Johnson,  7  E.  &  B.  885  ;  Browne  v.  Hare,  3  H.  &  N.  484  ;  s.  c.  4  id. 
821  ;  Tregeles  v.  Sewell,  7  id.  573. 

Stipulations  in  respect  to  the  forwarding  and  shipping  the  staves 
are  also  contained  in  the  second  agreement ;  but  it  is  not  necessary 
to  enter  into  any  discussion  of  that  topic,  as  it  appears  that  the  manu- 
facturers, if  they  did  anything  in  that  regard,  were  to  act  as  the 
agents  of  the  plaintiffs,  and  if  they  failed  to  transport  the  same  to  the 
place  of  shipment  seasonably,  the  plaintiffs  were  authorized  to  do  it  at 
their  expense.  Nor  is  it  necessary  to  discuss  the  stipulations  as  to 
insurance,  as  it  is  clear  that  tli^y  contain  nothing  inconsistent  with  the 
theory  that  the  property  vested  in  the  plaintiffs  as  soon  as  the  staves 
were  piled  and  delivered  at  the  agreed  place  of  delivery. 

Proof  of  a  satisfactory  character  was  exhibited  that  much  the 
greater  portion  of  the  staves  were  piled  upon  the  leased  site,  and  that 
the  residue  were  piled  on  land  adjoining,  and  within  a  hundred  or  a 
hundred  and  fifty  feet  from  the  larger  pile.  Witnesses  examined  the 
staves  piled  there  several  times,  and  one  of  them  testified  that  he 
was  there  duly  10,  1875,  with  one  of  the  sellers,  and  made  a  thorough 
count  of  the  staves,  the  number  counted  being  780,000,  and  he  states 
Heii  he  counted  the  staves  in  both  piles,  and  that  there  were  no  other 
white-oak  staves  on  the  premises. 

Taken  as  a  whole,  the  evidence  shows  that  the  parties  treated  both 
piles  of  the  staves  as  delivered  under  the  contract,  the  one  as  much 
as  the  other,  and  that  they  regarded  both  as  properly  included  in  the 
adjustment  of  the  amounts  to  be  advanced.  When  the  agent  of  the 
plaintiffs  went  there,  as  before  explained,  with  one  of  the  sellers,  it  is 
certain  that,  they  counted  both  piles,  and  it  is  clear  that  in  view  of  the 
evidence  and  the  circumstances  the  jury  were  warranted  in  finding  that 
the  property  in  all  the  white-oak  staves  piled  there  passed  to  the  plain- 


SECT.  V.]  BEMENT   V.   SMITH.  177 

tiffs  when  they  were  piled  and  delivered  at  that  place,  neither  party 
having  objected  to  the  place  where  the  smaller  parcel  was  piled. 

Actual  delivery  of  the  staves  having  been  proved,  it  is  not  necessary 
to  make  any  reply  to  the  defence  set  up  under  the  State  statute  in  re- 
spect to  the  sale  of  goods  unaccompanied  by  a  change  of  possession. 
Objection  is  also-  made  that  the  lease  of  the  premises  designated  as 
the  place  of  delivery  was  not  recorded,  which  is  so  obviously  without 
merit  that  it  requires  no  consideration. 

Viewed  in  the  light  of  these  suggestions,  it  is  obvious  that  the  first 
five  assignments  of  error  must  be  overruled. 

.  Exception  was  also  taken  to  the  ruling  of  the  court  below  in  ex- 
cluding certain  testimony  offered  by  the  defendant  to  show  that  the 
staves  were  not  cut  and  made  at  the  time  some  of  the  certificates  were 
given  to  secure  the  advance,  and  to  show  that  the  staves  included  in 
the  small  pile  were  never  in  fact  counted,  and  that  no  certificate  spe- 
cially applicable  to  them  was  ever  given.  Responsive  to  the  objection 
of  the  defendant,  the  court  below  remarked,  that,  if  the  staves  were 
subsequently  piled  there  to  the  satisfaction  of  the  plaintiffs,  the  title 
passed,  it  appearing  that  the  certificates  were  given  and  the  advance 
paid,  which  is  all  that  need  be  said  upon  the  subject,  as  it  is  plain  that 
the  ruling  is  without  just  exception. 

Judgment  affirmed. 


BEMENT  v.   SMITH. 

Supreme  Court  of  New  York,  July  Term,  1836. 

[Reported  in  15   Wendell,  493.] 

This  was  an  action  of  assumpsit,  tried  at  the  Seneca  circuit  in 
November,  1  <s 3 4 ,  before  the  Hon.  Daniel  Moseley,  one  of  the  circuit 
judges. 

In  March,  1834,  the  defendant  employed  the  plaintiff,  a  carriage- 
maker,  to  build  a  sulky  for  him,  to  be  worth  ten  dollars  more  than  a 
sulky  made  for  a  Mr.  Putnam;  for  which  he  promised  to  pay  $80, 
part  in  a  note  against  one  Joseph  Bement,  a  brother  of  the  plaintiff, 
for  the  sum  of  ten  or  eleven  dollars,  and  the  residue  in  his  own  note, 
at  six  or  twelve  months,  or  in  the  notes  of  other  persons  as  good  as  his 
own.  In  June,  1834,  the  plaintiff  took  the  sulky  to  the  residence  of 
the  defendant,  and  told  him  that  he  delivered  it  to  him,  and  demanded 
payment,  in  pursuance  of  the  terms  of  the  contract.  The  defendant 
denied  having  agreed  to  receive  the  carriage.  Whereupon  the  plaintiff 
told  him  he  would  leave  it  with  a  Mr.  De  "Wolf,  residing  in  the  neigh- 
borhood;  which  he  accordingly  did,  and  in  July,  1834,  commenced  this 
suit.  It  was  proved  that  the  value  of  the  sulky  was  $80,  and  that  it 
was  worth  810  more  than  Putnam's.     The  declaration  contained  three 

12 


178  BEMENT   V.    SMITH.  [CHAP.  II. 

special  counts,  substantially  alike,  setting  forth  the  contract,  alleging 
performance  on  the  part  of  the  plaintiff,  by  a  delivery  of  the  sulky, 
and  stating  a  refusal  to  perform,  on  the  part  of  the  defendant.  The 
declaration  also  contained  a  general  count,  for  work  and  labor,  and 
goods  sold.  The  judge,  after  denying  a  motion  for  a  nonsuit,  made  on 
the  assumed  grounds  of  variance  between  the  declaration  and  proof, 
charged  the  jury  that  the  tender  of  the  carriage  was  substantially  a 
fulfilment  of  the  contract  on  the  part  of  the  plaintiff,  and  that  he  was 
entitled  to  sustain  his  action  for  the  price  agreed  upon  between  the 
parties.  The  defendant's  counsel  requested  the  judge  to  charge  the 
jury  that  the  measure  of  damages  was  not  the  value  of  the  sulky,  but 
only  the  expense  of  taking  it  to  the  residence  of  the  defendant,  delay, 
loss  of  sale,  &c.  The  judge  declined  so  to  charge,  and  reiterated  the 
instruction  that  the  value  of  the  article  was  the  measure  of  damages. 
The  jury  found  for  the  plaintiff,  with  883.26  damages.  The  defend- 
ant moved  for  a  new  trial.  The  cause  was  submitted  on  written 
arguments. 

W.  It.  Smith,  for  the  defendant. 

O.  II  Piatt  and  J.  F.  Stevens,  for  plaintiff. 

By  the  court,  Savage,  C.  J.  The  defendant  presents  no  defence 
upon  the  merits.  His  defence  is  entirely  technical,  and  raises  two 
questions:  1.  Whether  the  tender  of  the  sulky  was  equivalent  to  a 
delivery,  and  sustained  the  averment  in  the  declaration  that  the  sulky 
was  delivered;  and  2.  Whether  the  rule  of  damages  should  be  the 
value  of  the  sulky,  or  the  particular  damages  to  be  proved,  resulting 
from  the  breach  of  the  contract.  There  is  no  question  raised  here 
upon  the  Statute  of  Frauds.  The  contract  is  therefore  admitted  to  be 
a  valid  one  ;  and  relating  to  something  not  in  solido  at  the  time  of  the 
contract,  there  is  no  question  of  its  validity. 

The  plaintiff  agreed  to  make  and  deliver  the  article  in  question  at  a 
particular  time  and  place,  and  the  defendant  agreed  to  pay  for  it,  on 
delivery,  in  a  particular  manner.  The  plaintiff  made,  and  as  far  as 
was  in  his  power,  delivered  the  sulky.  He  offered  it  to  the  defendant 
at  the  place  and  within  the  time  agreed  upon.  It  was  not  the  plaintiff's 
fault  that  the  delivery  was  not  complete,  that  was  the  fault  of  the 
defendant.  There  are  many  cases  in  which  an  offer  to  perform  an 
executory  contract  is  tantamount  to  a  performance.  This,  I  apprehend, 
is  one  of  them.  The  case  of  Towers  v.  Osborne,  Strange,  50G,  was  like 
this.  The  question  here  presented  was  not  raised,  but  the  defendant 
there  sought  to  screen  himself  under  the  Statute  of  Frauds.  The 
defendant  bespoke  a  chariot,  and  when  it  was  made,  refused  to  take  it ; 
so  far  the  eases  are  parallel.  In  an  action  for  the  value,  it  was  objected 
that  the  contract  was  not  binding,  there  being  no  note  in  writing,  nor 
earnest  nor  delivery.  The  objection  was  overruled.  In  that  case  the 
action  was  brought  for  the  value,  not  for  damages  for  the  breach  of 
contract.  This  case  is  like  it  in  that  particular;  this  action  is  brought 
for  the  value,  that  is,  for  the  price  agreed  on  ;  and  it  is  shown  that  the 


SECT.  V.]  BEMENT   V.    SMITH.  179 

sulk}'  was  of  that  value.  The  case  of  Crookshank  v.  Burrell,  18 
Julius.  R.  58,  was  an  action  in  which  the  plaintiff  declared  against  the 
defendant  on  a  contract  whereby  the  plaintiff  was  to  make  the  wood- 
work of  a  wagon,  for  which  the  defendant  was  to  pay  in  lambs.  The 
defendant  was  to  come  for  the  wagon.  The  question  was  upon  the 
Statute  of  Frauds.  Spencer,  C.  J.,  states  what  had  been  held  in  some 
of  the  English  cases,  4  Burr.  2101,  and  7  T.  R.  14,  that  a  distinction 
existed  between  a  contract  to  sell  goods  then  in  existence,  and  an 
agreement  for  a  thing  not  yet  made.  The  latter  is  not  a  contract  for 
the  sale  and  purchase  of  goods,  but  a  contract  for  work  and  labor 
merely.  The  case  of  Crookshank  v.  Burrell  is  much  like  this,  with  this 
exception  :  there  the  purchaser  was  to  send  for  the  wagon  ;  here  the 
manufacturer  was  to  take  it  to  him.  There  it  was  held  that  the  manu- 
facturer was  entitled  to  recover,  on  proving  that  he  had  made  the 
wagon  according  to  the  contract :  here  it  is  proved  that  the  sulky  was 
made,  and  taken  to  the  place  of  delivery  according  to  contract.  The 
merits  of  the  two  cases  are  the  same.  It  seems  to  be  conceded  that  an 
averment  of  a  tender  of  the  sulky  by  the  plaintiff,  and  a  refusal  of  the 
defendant  to  receive  it,  would  have  been  sufficient ;  and  if  so,  it  seems 
rather  technical  to  turn  the  plaintiff  out  of  court,  when  he  has  proved 
all  that  would  have  been  required  of  him  to  sustain  his  action.  The 
plaintiff,  in  his  special  counts,  does  not  declare  for  the  sale  and  deliv- 
ery, but  upon  the  special  contract ;  and  herein  this  case  is  distinguish- 
able from  several  cases  cited  on  the  part  of  the  defendant,  and  shows 
that  it  was  not  necessaiy  to  have  declared  for  goods  bargained  and 
sold.  It  seems  to  me,  therefore,  that  the  judge  was  right  in  refusing 
the  nonsuit,  and  in  holding  that  the  evidence  showed  substantially  a 
fulfilment  of  the  contract.  The  variance  as  to  the  amount  of  Joseph 
Bement's  note,  I  think,  is  immaterial ;  but  if  otherwise,  it  ma}r  be 
amended.  The  alleged  variance  as  to  the  price  of  the  sulky  is  not 
sustained  by  the  facts  of  the  case. 

The  only  remaining  question,  therefore,  is  as  to  the  damages  which 
the  plaintiff  was  entitled  to  recover.  It  is  true  that  the  plaintiff  does 
not  recover  directly  as  for  goods  sold  ;  but  in  the  case  of  Towers  v. 
Osborne  the  plaintiff  recovered  the  value  of  the  chariot,  and  in  Crook- 
shank v.  Burrell  the  recovery  was  for  the  value  of  the  wagon.  The 
amount  of  damages  which  ought  to  be  recovered  was  not  the  question 
before  the  court  in  either  of  those  cases  ;  but  if  the  value  of  the  article 
was  not  the  true  measure,  we  may  infer  that  the  point  would  have  been 
raised.  Upon  principle,  I  may  ask,  what  should  be  the  rule?  A  me- 
chanic makes  an  article  to  order,  and  the  customer  refuses  to  receive  it : 
is  it  not  right  and  just  that  the  mechanic  should  be  paid  the  price 
agreed  upon,  and  the  customer  left  to  dispose  of  the  article  as  he  may? 
A  contrary  rule  might  be  found  a  gnat  embarrassment  to  trade.'  The 
mechanic  or  merchant,  upon  a  valid  contract  of  sale.  may.  after  refusal 
to  receive,  sell  the  article  to  another  _„nd  sue  for  the  difference  between 
the  contract  price  and  the  actual  sale.     Sands  and  Crump  v.  Taylor  and 


180  BEMENT   V.    SMITH.  [CHAP.  II. 

Lovetl,  5  Johns.  R.  395,  410,  411  ;  1  Salkeld,  113  ;  6  Modern,  162.  In  the 
first  of  these  cases,  the  plaintiffs  sold  the  defendants  a  cargo  of  wheat. 
The  defendants  received  part,  but  refused  to  receive  the  remainder. 
The  plaintiffs  tendered  the  remainder,  and  gave  notice  that  unless  it 
-was  received  and  paid  for,  it  would  be  sold  at  auction,  and  the  defend- 
ants held  responsible  for  any  deficiency  in  the  amount  of  sales.  It  was 
held,  upon  this  part  of  the  case,  that  the  subsequent  sale  of  the  residue 
was  not  a  waiver  of  the  contract,  the  vendor  being  at  liberty  to  dispose 
of  it  bona  fide,  in  consequence  of  the  refusal  of  the  purchaser  to  accept 
the  wheat.  This  case  shows  that  where  there  has  been  a  valid  contract 
of  sale,  the  vendor  is  entitled  to  the  full  price,  whether  the  vendee 
receive  the  goods  or  not.  I  cannot  see  why  the  same  principle  is  not 
applicable  in  this  case.  Here  was  a  valid  contract  to  make  and  deliver 
the  sulky.  The  plaintiff  performed  the  contract  on  his  part.  The 
defendant  refused  to  receive  the  sulky.  The  plaintiff  might,  upon 
notice,  have  sold  the  sulky  at  auction,  and  if  it  sold  for  less  than  $80, 
the  defendant  must  have  paid  the  balance.  The  reason  given  by  Kent, 
C.  J.,  5  Johns.  R.  411,  is,  that  it  would  be  unreasonable  to  oblige  him 
to  let  the  article  perish  on  his  hands,  and  run  the  risk  of  the  insolvency 
of  the  buyer.  But  if  after  tender  or  notice,  whichever  may  be  neces- 
sary, the  vendor  chooses  to  run  that  risk  and  permit  the  article  to 
perish,  or,  as  in  this  case,  if  he  deposit  it  with  a  third  person  for  the 
use  of  the  vendee,  he  certain^  must  have  a  right  to  do  so,  and  prose- 
cute for  the  whole  price.  Suppose  a  tailor  makes  a  garment,  or  a  shoe- 
maker a  pair  of  shoes,  to  order,  and  performs  his  part  of  the  contract, 
is  he  not  entitled  to  the  price  of  the  article  furnished?  I  think  he  is, 
and  that  the  plaintiff  in  this  case  was  entitled  to  his  verdict. 

The  question  upon  the  action  being  prematurely  brought  before  the 
expiration  of  the  credit  which  was  to  have  been  given,  cannot  properly 
arise  in  this  case,  as  the  plaintiff  recovers  upon  the  special  contract,  and 
not  upon  a  count  for  goods  sold  and  delivered. 

Neic  trial  denied} 

1  "The  vendor  of  personal  property,  in  a  suit  against  the  vendee  for  not  taking  and 
paying  for  the  property,  has  the  choice  ordinarily  of  either  one  of  three  methods  to  in- 
demnify himself :  (1 )  lie  may  store  or  retain  the  property  for  the  vendee,  and  sue  him 
for  the  entire  purchase  price;  (2)  lie  may  sell  the  property,  acting  as  the  agent  for 
this  pnrpose  of  the  vendee,  and  recover  the  difference  between  the  contract  juice  and 
the  price  obtained  on  snch  resale  ;  or,  (3)  he  may  keep  the  property  as  his  own,  and 
ver  the  difference  between  the  market  price  at  the  time  and  place  of  delivery, 
contract  price."  Dustan  v.  Mc  Andrew,  44  N.  Y.  72,  78,  per  Earl,  C.  Ann-  v. 
Moir,  130  111.  582,  591,  accord.  Cf  Gordon  v.  Norris,  40  X.  11.  370.  And  sec  Benja- 
min on  Sales  (ed.  1888),  716;  2  Sedgwick  on  Damages  (8th  ed.),  750  etseq. 


SECT.  V.J  DOWNEB   V.    THOMPSON.  181 


DOWNER  u.  THOMPSON. 
Supreme  Court  op  New  York,  October  Term,  1811. 

[Reported  in  2  Hill,  137.] 

Assumpsit,  tried  at  the  Oneida  circuit  on  the  8th  of  October,  1840, 
before  Gridley,  C.  J.  The  declaration  contained  counts  for  goods 
bargained  and  sold,  and  also  for  goods  sold  and  delivered.  The  facts 
appearing  on  the  trial  were  as  follows  :  — 

The  defendant,  who  resided  at  Hastings,  Westchester  Count}',  on  the 
21st  of  August,  1838,  addressed  an  order  to  the  plaintiff,  who  resided 
at  Chittenango,  Madison  County,  for  250  barrels  of  cement,  to  be  for- 
warded as  soon  as  practicable.  On  the  4th  of  September  following, 
the  plaintiff  shipped  on  board  a  canal-boat  260  barrels,  which  arrived 
at  Hastings  on  the  17th  of  the  same  month,  and  were  offered  to  the 
defendant.  He  objected,  among  other  things,  that  there  were  more 
barrels  than  he  had  ordered,  and  finally  refused  to  receive  any  of  the 
cement.  The  boatmen  having  it  in  charge  proceeded  to  New  York, 
and  there  stored  it. 

The  defendant's  counsel  insisted  at  the  trial  that  the  evidence  did 
not  sustain  either  the  count  for  goods  bargained  and  sold,  or  that  for 
goods  sold  and  delivered.  He  therefore  moved  for  a  nonsuit,  which 
was  granted,  and  the  plaintiff  excepted.  The  latter  now  moved  for 
a  new  trial  on  a  bill  of  exceptions. 

W.  McCall   and  S.  Beardsley,  for  plaintiff. 

C.  P.  Kirkland  and  J.  A.  Spencer,  for  defendant. 

By  the  court,  Cowen,  J.  The  difficulty  of  the  plaintiff  lies  in  his 
not  having  numerically  complied  with  the  order,  which  was  for  250, 
not  2G0  barrels.  Had  he  shipped  the  250  barrels,  no  doubt  the  prop- 
erty would  have  passed,  and  the  count  for  goods  sold  and  delivered 
been  well  sustained  ;  because  a  delivery  to  the  carrier  for  the  account 
and  risk  of  the  consignee,  is  in  law  a  delivery  to  the  latter.  Coxe  v. 
Harden,  4  East,  211.  But  neither  count  was  satisfied  by  the  shipment 
or  offer  of  the  250  barrels  from  among  a  larger  number,  the  true 
amount  being  neither  counted  nor  weighed  out.  The  property  yet 
remained  to  be  specified  before  the  defendant  could  know  what  to  call 
his  own  ;  and  it  is  entirely  settled,  that  where  any  act  yet  remains  to 
be  done  by  the  vendor,  such  as  weighing,  measuring,  or  counting  out 
of  a  common  parcel,  no  property  passes.  Short  of  this  there  is  no 
sale,  much  less  a  delivery.  Long  on  Sales,  267  et  seq.,  ed.  of  1839. 
The  exception  at  page  274.  mentioned  by  the  plaintiff's  counsel,  of  a 
certain  number  of  dollars  sent  in  a  barrel  among  others  not  intended 
for  the  consignee,  is  a  different  case.  It  went  on  the  ground  that  the 
dollars  were  all  of  the  same  value,  which  cannot  be  predicated  ol'  the 


182  ANDREWS   V.    DURANT.  [CHAP.  II. 

barrels  in  question.     Beside,  there  is  perhaps  some  difficulty  in  sustain- 
ing the  exception  without  running  foul  of  a  strong  current  of  cases. 

We  think  no  action  will  lie,  unless  it  be  a  special  assumpsit  for  not 
accepting  the  cement.  New  trial  denied. 


ANDREWS   and   Others  v.  DURANT   and   Others. 
New  York  Court  of  Appeals,  June  Term,   1854. 

[Reported  in  1 1  New  York,  35.] 

Appeal  from  a  judgment  of  the  general  term  of  the  Supreme  Court 
held  in  Albany  County.  The  plaintiffs  brought  an  action  in  the  nature 
of  trover  for  a  barge  in  an  unfinished  state,  which  they  alleged  the 
defendants  had  converted  to  their  own  use.  The  defendants  denied 
the  allegations  in  the  complaint,  and  set  up  title  to  the  barge  in  them- 
selves. The  cause  was  tried  before  the  Hon.  M.  Watson,  a  justice  of 
the  Supreme  Court,  in  April,  1850,  without  a  jury.  The  following 
facts  appeared  on  the  trial.  On  the  21th  April,  1849,  the  defendants 
entered  into  a  contract,  in  writing,  with  William  H.  Bridger  &  Co., 
ship-builders,  by  which  the  latter  agreed  "  to  build  "  for  the  defendants, 
for  the  sum  of  $5,000,  a  barge  of  certain  dimensions  and  with  a  certain 
size  and  description  of  timbers,  &c,  which  were  particularly  specified, 
except  the  rail,  which  was  to  be  "according  to  direction  of  superin- 
tendent." The  further  provisions  of  the  contract  were  as  follows  : 
"  All  the  materials  to  be  furnished  by  the  builder,  and  all  to  be  of  the 
first  quality,  and  the  work  subject  to  the  superintendent,  who  shall 
have  the  privilege  of  rejecting  any  timber  he  may  think  is  not  suitable, 
and  object  to  any  work  not  done  in  a  workmanlike  manner.  The 
model  of  the  boat  to  be  made  like  barge  I.  L.  Brown.  The  boat  to  be 
furnished  complete,  and  ready  for  the  ship  chandler  according  to  the 
above  specification  on  the  first  day  of  August  next,  and  delivered  to 
Durant,  Lathrop,  &  Co.,  the  defendants,  at  Kingston.  In  case  the 
barge  is  not  complete  by  the  time  specified  above,  or  within  ten  days 
of  that  time,  W.  H.  Bridger  &  Co.  agree  to  forfeit  two  hundred  and 
fifty  dollars  for  every  week's  delay.  Payment:  The  said  five  thousand 
dollars  to  be  paid  as  follows;  viz.,  one  thousand  dollars  when  keel  is 
laid,  one  thousand  dollars  when  frame  is  up,  one  thousand  dollars 
when  planked  and  calked,  and  two  thousand  dollars  when  completed 
and  delivered." 

Bridger  &  Co.  proceeded  in  the  construction  of  the  barge  until  the 
4th  day  of  August,  1849,  when,  having  stopped  payment,  they  assigned 
the  unfinished  vessel  with  their  other  property,  to  the  plaintiffs  as  trus- 
tees for  the  benefit  of  their  creditors,  according  to  certain  classes  of 
preference.  The  barge  had  been  so  far  advanced  in  its  construction  as 
to  be  planked,  and  the  defendants  had  paid  the  builders  $3,000  accord- 


SECT.  V.]  ANDREWS   V.   DURANT.  183 

ing  to  the  contract,  that  is  to  say,  $1,000  at  each  of  the  three  separate 
stages  of  the  work  first  referred  to  in  the  contract,  when  the  builders 
failed.  The  defendants,  having  obtained  possession  of  the  barge,  pro- 
posed to  the  plaintiffs  to  finish  it,  and  offered  in  that  event  to  pay  them 
the  balance  of  the  contract  price,  but  this  was  declined  ;  and  the  plain- 
tiffs demanded  the  barge  of  the  defendants,  who  would  not  give  it  up. 
The  defendants  then  procured  it  to  be  completed  on  their  own  account, 
at  an  expense  of  $700.  The  person  who  acted  as  superintendent  in 
the  building"  of  the  barge  was  sworn,  and  testified  that  he  was  em- 
ployed exclusively  by  the  defendants  and   was  paid  by  them. 

.Judgment  was  rendered  by  Justice  Watson  in  favor  of  the  defend- 
ants, and  the  plaintiffs  excepted  :  it  was  affirmed  at  the  general  term. 
The  plaintiffs  appealed  to  this  court. 

JV.  Hill,  Jun.,  for  the  appellants. 

S.  H.  Hammond,  for  the  respondents. 

Denio,  J.  In  general  a  contract  for  the  building  of  a  vessel  or  other 
thing  not  yet  in  esse  does  not  vest  any  property  in  the  party  for  whom 
it  is  agreed  to  be  constructed  during  the  progress  of  the  work,  nor 
until  it  is  finished  and  delivered,  or  at  least  ready  for  delivery  and 
approved  by  such  party.  All  the  authorities  agree  in  this.  Towers  v. 
Osborne,  1  Stra.  506;  Mucklow  v.  Mangles, -1  Taunt.  318;  Johnson 
v.  Hunt,  11  Wend.  139;  Crookshank  v.  Burrell,  18  John.  58  ;  Sewall 
v.  Fitch,  8  Cow.  215;  Mixer  v.  Howarth,  21  Pick.  205.  And  the 
law  is  the  same  though  it  be  agreed  that  payment  shall  be  made 
to  the  builder  during  the  progress  of  the  work,  and  such  payments 
are  made  accordingly.  In  Mucklow  v.  Mangles,  which  arose  out 
of  a  contract  for  building  a  barge,  the  whole  price  was  paid  in 
advance,  the  vessel  was  built,  and  the  name  of  the  person  who  con- 
tracted for  it  was  painted  on  the  stern,  yet  it  was  held  that  the  title 
remained  in  the  builder.  In  Merritt  v.  Johnson,  7  John.  473,  where  a 
sloop  was  agreed  to  be  built  and  one-third  of  the  price  was  to  be  paid 
when  one-third  of  the  work  was  done,  two-thirds  when  two-thirds 
were  done,  and  the  balance  when  it  was  completed,  and  before  it  was 
finished  it  was  sold  on  execution  against  the  builder  after  more  than  a 
third  had  been  done  and  more  than  that  proportion  of  the  price  had 
been  paid,  the  court  decided  that  the  vessel  was  the  property  of  the 
builder,  and  not  of  the  person  who  engaged  it  to  be  constructed. 

Where  during  the  course  of  the  transaction  the  vessel  or  other  thing 
agreed  to  be  built  is  identified  and  appropriated  so  that  the  mechanic 
would  be  bound  to  complete  and  deliver  that  particular  thing,  and 
could  not  without  violating  his  contract  substitute  another  similar 
article  though  otherwise  corresponding  with  the  agreement,  there 
would  seem  to  be  more  reason  for  holding  that  the  property  was  trans- 
ferred ;  still  it  has  never  been  held  that  this  was  enough  to  pass  the 
title.  In  Laidler  /•.  Burlinson,  2  Mees.  &  Welsb.  602,  the  vessel  was 
about  one-third  built  when  the  contract  was  made.  The  builder  and 
owners  agreed  to  finish  that  particular  vessel  in  a  manner    specially 


184  ANDREWS   V.    DURAXT.  [CHAP.  II. 

agreed  upon  for  a  price  which  was  the  equivalent  for  the  finished  ves- 
sel. Before  it  was  completed  the  builder  became  bankrupt,  and  the 
possession  passed  into  the  hands  of  his  assignee.  The  Court  of  Ex- 
chequer held  the  true  construction  of  the  contract  to  be  that  the  title 
was  to  pass  when  the  ship  was  completed,  and  not  before.  The  parties 
only  agreed  to  buy  a  particular  ship  when  complete,  and  although  the 
builder  could  not  comply  with  the  contract  by  delivering  another  ship, 
still  it  was  considered  an  executory  contract  merely.  In  Atkinson  v. 
Bell,  8  Barn.  &  Cress.  277,  the  same  principle  was  held  in  respect  to 
a  contract  for  making  spinning  machinery,  and  in  Clarke  v.  Spenee,  4 
Adolph.  &  El.  448,  which  is  the  case  principally  relied  on  by  the  de- 
fendants, it  was  admitted  b3*  the  court  that  the  appropriation  of  the 
particular  ship  to  the  contract  then  in  question,  by  the  approval  of 
the  materials  and  labor  by  the  superintendent,  did  not  of  itself  vest 
the  property  in  the  purchaser  until  the  whole  thing  contracted  for  had 
been  completed. 

In  the  case  before  us,  it  cannot  be  denied  but  that  the  barge,  as  fast 
as  its  several  parts  were  finished  with  the  approval  of  the  superinten- 
dent, became  specificall}*  appropriated  to  the  fulfilment  of  this  contract, 
so  that  Bridger  &  Co.  could  not  have  fulfilled  their  agreement  with 
the  defendants  in  any  other  way  than  by  completing  and  delivering 
that  identical  boat.  This  results  from  the  consideration  that  the  super- 
intendent could  not  be  called  upon  to  inspect  and  approve  of  the  work 
and  materials  of  another  barge,  after  having  performed  that  duty  as  to 
one  ;  so  that  the  contract  would  be.  broken  up  unless  it  applied  itself 
to  this  vessel.  But  it  is  clear  that  this  circumstance  alone  does  not 
operate  to  transfer  the  title.  The  precise  question  in  this  case  is 
whether  the  concurrence  of  both  particulars  —  the  payment  of  parts  of 
the  price  at  specified  stages  of  the  work,  and  the  intervention  of  a 
superintendent  to  inspect  and  approve  of  the  work  and  materials  — 
produces  a  result  which  neither  of  them  separately  would  effect.  It  is 
no  doubt  competent  for  the  parties  to  agree  when  and  upon  what  con- 
ditions the  property  in  the  subject  of  such  a  contract  shall  vest  in  the 
prospective  owner.  The  present  question  is  therefore  simply  one  of 
construction.  The  inquiry  is  whether  the  parties  intended  by  the  pro- 
visions which  they  have  inserted  in  their  contract,  that  as  soon  as  the 
first  payment  had  become  payable  and  had  been  paid,  the  property  in 
the  unfinished  barge  should  vest  in  the  defendants,  so  that  thereafter 
it  should  lie  at  their  risk  as  to  casualties,  and  be  liable  for  their  debts, 
and  pass  to  their  representatives  in  case  of  their  death.  Such  an  agree- 
ment would  be  lawful  if  made,  and  the  doubt  only  is  whether  the 
parties  have  so  contracted. 

The  courts  in  England,  under  contracts  in  all  material  respects  like 
this,  have  held  that  the  title  passed.  In  Woods  v.  Russell,  5  Barn.  & 
Aid.  '.M2,  the  finest  ion  came  before  the  Court  of  King's  Bench,  and 
Abbott,  C.  J.,  distinctly  declared  his  opinion  that  the  payment  of  the 
instalments  under  such  a  contract  vested  the  property  in  the  ship  in 


SECT.  V.]  ANDREWS   V.   DURANT.  185 

the  party  for  whom  it  was  to  have  been  constructed.  But  there  was 
another  feature  in  the  case  upon  which  it  was  finally  decided.  The 
builder  hud  signed  a  certificate  for  the  purpose  of  enabling  the  other 
party  to  procure  the  vessel  to  be  registered  in  his  name,  and  it  was  so 
registered  accordingly  while  it  was  yet  unfinished  and  before  the  ques- 
tion arose.  The  court  held  that  the  legal  effect  of  signing  the  certifi- 
cate for  the  purpose  of  procuring  the  registry  was,  from  the  time  the 
registry  was  complete,  to  vest  the  general  property  in  the  party  con- 
tracting to  have  the  ship  built.  This  case  was  decided  in  1822,  and  was 
the  first  announcement  of  the  principle  upon  which  the  defendants' 
counsel  rely  in  the  English  courts.  The  case  of  Clarke  v.  Spence  was 
decided  in  183G.  It  arose  out  of  a  contract  for  building  a  vessel, 
which  contained  both  the  features  of  superintendence  and  of  payments 
according  to  specific  stages  of  the  work,  as  in  Woods  v.  Russell,  and  as 
in  the  contract  now  before  the  court.  The  Court  of  King's  Bench  was 
clearly  of  opinion  that  as  fast  as  the  different  parts  of  the  vessel  were 
approved  and  added  to  the  fabric  they  became  appropriated  to  the 
purchaser  by  way  of  contract,  and  that  when  the  last  of  them  were  so 
added,  and  the  vessel  was  thereby  completed,  it  vested  in  the  purchaser. 
The  court,  conceded  that  by  the  general  rules  of  law,  until  the  last  of 
the  necessaiy  materials  was  added  the  thing  contracted  for  was  not  in 
existence  ;  and  the}'  said  they  had  not  been  able  to  find  any  authorit}' 
for  holding  that  while  the  article  did  not  exist  as  a  whole  and  was  in- 
complete, the  general  property  in  such  parts  of  it  as  had  been  from 
time  to  time  constructed  should  vest  in  the  purchaser,  except'  what 
was  said  in  the  case  of  Woods  v.  Russell :  and  that  was  admitted  to 
be  a  diction  merely,  and  not  the  point  on  which  the  case  was  decided. 
The  court,  however,  decided  upon  the  authorit}'  of  that  case,  though 
with  some  hesitation,  as  they  said,  that  the  rights  of  the  parties  in  the 
case  before  it,  after  the  making  of  the  first  payment,  were  the  same  as 
if  so  much  of  the  vessel  as  was  then  constructed  had  originally  be- 
longed to  the  party  contacting  for  its  construction  and  had  been 
delivered  by  him  to  the  builder  to  be  added  to  and  finished  ;  and  they 
said  it  would  follow  that  eveiw  plank  and  article  subsequently  added 
would,  as  added,  become  the  property  of  the  party  contracting  with 
the  builder.  The  dictum  in  Woods  v.  Russell  was  incidentally  referred 
to  as  the  law  in  Atkinson  v.  Bell,  8  Barn.  &  Cress.  277,  and  the  doc- 
trine there  stated,  and  confirmed  in  Clarke  v.  Spence,  was  assumed  to 
be  correct  in  Laidler  v.  Burlinson  before  referred  to.  It  has  also  been 
generally  adopted  by  systematic  writers  in  treatises  published  or  re- 
vised since  the  decision  of  Clarke  v.  Spence,  that  case  ami  Woods  v. 
Russell  being  always  referred  to  as  the  authority  on  which  it  rests. 
Story  on  Sales,  §§  315,  316;  Chit,  on  Cont.  378,  9  ;  Abbott  on  Ship. 
4,5: 

It  is  scarcely  necessaiy  to  say  that  the  English  cases  since  the  dev- 
olution are  not  regarded  as  authorit}'  in  our  courts.  Upon  disputed 
doctrines  of  the  common  law  the}'  are  entitled  to  respectful  consider- 


186  ANDREWS   V.    Dt'UANT.  [CHAP.  II. 

ation  ;  but  where  the  question  relates  to  the  construction  or  effect  of  a 
written  contract  they  have  no  greater  weight  than  may  be  due  to  the 
reasons  given  in  their  support.     Can  it,  then,  be  fairly  collected  from 
the  provisions  of  this  contract,  that  the  title  to  the  unfinished  barge 
was  to  be  transferred  from  the  builder  to  the  other   party    upon   the 
making  of  the  first  payment,  contrary   to   the   principle   well    settled 
and  generally  understood  that  a  contract  for  the  construction    of  an 
article  not  in  existence  is  executory  until  the  thing   is    finished   and 
ready  for  delivery?     In  the  first  place,  I  should  say  that  so  marked  a 
circumstance  would  be  stated   in  words   of    unequivocal   import,  and 
would  not  be  left  to  rest  upon  construction,  if  a  change  of  property 
was  really  intended.     The  provision  for  superintendence  by  the   agent 
of  the  intended  owner,  though  it  serves  to  identify  and  appropriate  the 
article  as  soon  as  its  construction  is  commenced,  does  not,  as  we  have 
seen,  work  any  change  of  property.     Such  would  not  ordinarily  be  the 
intention  to  be  deduced  from  such  a  circumstance.     Many  of  the  ma- 
terials of  which  a  vessel  is  composed  are  ultimately  covered  so  as  to 
be  concealed  from  the  eye  when  it  is  finished  ;  and  as  the  safety  of 
life  and  property  is  concerned  in  the  soundness  and  strength  of  these 
materials,  it  is  but  a  reasonable  precaution  to  be  taken  by  one  who 
engages  a  vessel  to  be  constructed,  to  ascertain  as  the  work  progresses 
that  everything  is  stanch  and  durable ;    and   such  a  provision,   as  it 
seems  to  me,  does  not  tend  to  show  a  design  that  there  shall  be    a 
change  of  property  as  fast  as  any  materials  or  work  are  inspected  and 
approved.     It  amounts  only  to  an  agreement  that  when  the   whole  is 
completed  the  party  will  receive  it  in  fulfilment  of  the  contract.     The 
provision  for  advances  at  particular  stages  of  the  work  is  a  very  usual 
one  where  an  expensive  undertaking  is    contracted    for,   and    it   only 
shows  that  the  party  advancing  is  willing  thus  to  assist   the    artisan 
provided  that  he  can  see  that  the  work  is  going  on  in  good  faith,  so  as 
to  afford  a  reasonable  prospect  that  he  will  realize  the  avails  of  his  ex- 
penditure in  a  reasonable  period.     The  argument  for  the   defendants 
would  be  somewhat  stronger  if  we  could  say  that  the  amount  to   be 
advanced  at  the  several  stages  mentioned  was  understood  by  the  par- 
ties to  be  the  price  or  equivalent  for  the  labor  and  materials  already 
expended.     This  by  no  means  appears,  but  on  the  contrary  there  is 
strong  reason  to  believe  that  in  this  case  a  considerable  portion  of  the 
price  was  to  be  at  all  times  kept  back  in  order  to  secure  the  speedy 
completion  of  the  contract.     When  I&dger   &  Co.  failed  only  $3,000 
of  the  $5,000  had  been  paid,  and  they  would  not  be  entitled  to  any  more 
until  tin-  barge  was  finished,  and  yet  it  cost  only  $700  to  complete  it. 
This  renders  it  improbable  that  the  parties  could  have  intended    the 
sale  and  purchase  of  so  much  as  was  done  at  the  several  stages  of  the 
work  at  which  payments  were  to  be   made,  if  indeed  such   a  contract 
were  not  in  itself  so  much  out  of  the  course  of  the  ordinary  conduct  of 
parties  us  not  to  be  assumed  without  unequivocal  language. 

The  decision  in  Clarke  v.  Spence  is  placed  very  much  upon  the  idea 


SECT.  V.]  ANDREWS    V.   DUIIANT.  187 

that  parties  may  have  contracted  in  reference  to  the  doctrine  an- 
nounced in  Woods  v.  Russell.  That  argument  can  have  no  force  here, 
but  on  the  contrary  the  inference  to  be  drawn  from  our  own  cases,  and 
particularly  from  Merritt  v.  Johnson,  would  be  that  the  title  remained 
in  the  builder  under  such  a  contract  until  the  completion  of  the  vessel. 

The  foregoing  considerations  have  led  me  to  the  conclusion  that  the 
modern  English  rule  is  not  founded  upon  sufficient  reasons,  and  that  it 
ought  not  to  be  followed.  The  judgment  of  the  Supreme  Court  should 
therefore  be  reversed,  and  a  new  trial  ordered. 

Parker,  J.  The  question  we  are  called  upon  to  decide  is,  whether, 
under  the  rules  of  law  applicable  to  the  contract,  the  barge,  at  the 
time  of  the  assignment  to  the  plaintiffs,  belonged  to  Bridger  &  Bishop, 
who  constructed  it,  or  to  the  defendants,  who  employed  them  to 
build  it. 

The  general  rule  is,  that  if  a  person  contract  with  another  for  a 
chattel  which  is  not  in  existence  at  the  time  of  the  contract,  though 
he  pay  him  the  whole  value  in  advance,  and  the  other  proceeds  to 
execute  the  order,  the  buyer  acquires  no  property  in  the  chattel  till 
it  is  finished  and  delivered  to  him.  The  case  of  Mucklow,  assignee  of 
Royland,  v.  Mangles,  decided  in  England  in  1808,  1  Taunt.  318,  recog- 
nized, to  the  fullest  extent,  the  general  rule  I  have  stated.  It  was  an 
action  of  trover  by  the  assignees  of  a  bankrupt  for  a  barge  and  other 
effects.  Royland,  who  was  a  barge-builder,  had  undertaken  to  build 
the  barge  in  question  for  Pocock.  Before  the  work  was  begun,  Po- 
cock  advanced  to  Royland  some  money  on  account,  and  as  it  proceeded 
he  paid  him  more,  to  the  amount  of  £190  in  all,  being  the  full  value  of 
the  barge.  When  it  was  nearly  finished,  Pocock's  name  was  painted 
on  the  stern.  Two  days  after  the  completion  of  the  work,  and  before 
a  commission  of  bankruptcy  had  issued,  the  defendant,  who  was  an 
officer  of  the  sheriff,  took  the  barge  under  an  execution  against  Roy- 
land, the  barge  at  the  time  of  the  levy  not  having  been  delivered  to 
Pocock.  It  was  held  that  the  title  to  the  barge  had  never  passed 
from  Royland  to  Pocock,  and  judgment  was  given  for  the  plaintiff. 
The  correctness  of  this  decision  has  never  been  questioned,  either  in 
England  or  this  country,  but  has  been  repeatedly  followed  in  both.  In 
this  State  the  more  prominent  cases  are  Merritt  v.  Johnson,  7  John. 
4  73;  Gregory  v.  Stryker,  2  Denio,  628;  and  Johnson  v.  Hunt,  11 
Wend.  139. 

But  it  is  sought  to  take  this  case  out  of  the  general  rule,  because 
the  work  was  to  be  performed  under  the  direction  of  a  superintendent 
employed  by  the  defendant,  and  was  to  be  paid  for  at  specific  stages 
of  the  work.  The  first  of  the  English  cases  relied  on  to  sustain  that 
position,  is  that  of  Woods,  assignee  of  Paton,  y.  Russell.  5  Barn.  &  Aid. 
942,  which  was  decided  in  1822.  Paton,  a  ship-builder,  had  con- 
tracted with  Russell  to  build  a  ship  for  him  and  complete  it  in  April 
1819  ;  lbissell  to  pay  in  four  instalments.  The  first  and  second  instal- 
ments were  duly  paid.     In  March.  1819,  Russell  appointed  a  master, 


183  ANDREWS   V.    DUKANT.  [CHAP.  IL 

who  superintended  the  building.  On  Paton's  signing  the  usual  cer- 
tificate of  her  build,  the  ship  was  registered  in  Russell's  name,  and  on 
that  day  he  paid  Paton  the  third  instalment.  It  was  held  that  the 
general  property  was  vested  in  Russell  from  the  time  the  registry  was 
completed,  but  that  the  plaintiff  had  a  lien  for  the  work  done  after 
payment  of  the  third  instalment.  There  seems  to  me  to  be  enough  in 
that  case  to  sustain  the  judgment,  independent  of  the  circumstances 
relied  upon  by  the  defendants  in  this  action.  The  registry  of  the  ves- 
sel in  the  name  of  Russell  on  the  certificate,  and  by  the  aid  and  pro- 
curement of  Paton,  was  equivalent  to  a  delivery,  and  was  conclusive  to 
show  that  the  parties  to  the  contract  agreed  that  from  that  time  the 
property  belonged  to  Russell. 

In  delivering  the  opinion  of  the  court,  Abbott,  C.  J.,  said:  "It  is 
part  of  the  terms  of  the  contract,  that  given  portions  of  the  price 
should  be  paid  according  to  the  progress  of  the  work  ;  part  when  the 
keel  is  laid,  and  part  when  they  are  at  the  light  plank.  The  payment 
of  these  instalments  appears  to  us  to  appropriate  specifically  to  the  de- 
fendant the  very  ship  so  in  progress,  and  to  vest  in  the  defendant  a 
property  in  that  ship  ;  and  that  as  between  him  and  the  builder,  he  is 
entitled  to  insist  upon  the  completion  of  that  very  ship,  and  that  the 
builder  is  not  entitled  to  require  him  to  accept  any  other.  But  this 
case  does  not  depend  merely  upon  the  payment  of  the  instalments  ; 
so  that  we  are  not  called  upon  to  decide  how  far  that  payment  vests 
the  property  in  the  defendant,  because  here  Paton  signed  the  certifi- 
cate to  enable  the  defendant  to  have  the  ship  registered  in  his  (the 
defendant's)  name,  and  by  that  act  consented,  as  it  seems  to  us,  that 
the  general  property  in  the  ship  should  be  considered  from  that  time 
as  being  in  the  defendant." 

The  decision  in  Woods  v.  Russell  seems  very  improperly  to  have 
been  considered  as  resting  on  the  ground  first  stated  in  the  extract  I 
have  made.  Atkinson  v.  Bell,  8  Barn.  &  Cress.  277  ;  15  Eng.  Com.  L. 
216.  And  so  far  it  has  evidently  been  looked  upon  with  distrust  and 
followed  with  reluctance  in  the  later  decisions  of  the  English  courts. 

In  Clarke  et  al.  v.  Spence  et  al.,  4  Adol.  &  Ellis,  448,  31  Eng.  Com. 
L.  107,  the  plaintiff  contracted  with  a  ship-builder  to  build  him  a  ship 
for  a  certain  sum,  to  be  paid  in  instalments,  as  the  work  proceeded. 
An  agent  of  the  plaintiff  was  to  superintend  the  building.  The  builder 
became  bankrupt  before  the  ship  was  completed.  Afterwards  the  as- 
signees  completed  the  ship,  and  all  the  instalments  were  paid  or  tendered. 
In  trover,  by  the  plaintiff  against  the  assignees,  for  the  ship,  it  was 
held  that  on  the  first  instalment  being  paid,  the  property  in  the  por- 
tion then  finished  became  vested  in  the  plaintiff,  subject  to  the  right  of 
(In-  builder  to  retain  such  portion  for  the  purpose  of  completing  the 
work  and  earning  the  rest  of  the  price,  and  that  each  material,  subse- 
quently  added,  became,  as  it  was  added,  the  property  of  the  general 
owner.  This  decision  was  made,  as  was  said  by  Williams,  J.,  who 
delivered  the  judgment  of  the  court,  "with  some  hesitation,"  and  en- 


SECT.  V.]  ANDREWS   V.   DUEANT.  189 

tirely  upon  the  authority  of  the  expression  in  the  opinion  of  the  court 
in  Woods  v.  Russell,  first  above  quoted.  Williams,  J.,  conceded  that 
the  facts  in  the  case  of  Woods  v.  Russell  did  not  make  it  necessary  to 
determine  (he  point  whether  the  building  of  the  vessel  under  the 
superintendence  of  a  person  appointed  by  the  purchaser,  and  the  pay- 
ment of  instalments  at  particular  stages  of  the  work,  vested  the  gen- 
eral property  in  the  purchaser,  and  added:  "Neither  did  the  decision 
of  the  court  proceed  ultimately  on  any  such  point,  hut  on  the  ground 
that  the  vessel  by  virtue  of  the  certificate  of  the  builder  had  been 
registered  in  the  name  of  the  purchaser,  and  that  the  builder  had  by 
his  own  act  declared  the  general  property  to  be  in  the  purchaser." 
And  he  proceeded  in  a  very  full  and  able  opinion  to  show  that  the 
opinion,  thus  extra-judicially  expressed  in  Woods  v.  Russell,  was  in 
conflict  with  well-established  rules  of  law.  Williams,  J.,  said:  "Until 
the  last  of  the  necessary  materials  be  added,  the  vessel  is  not  com- 
plete ;  the  thing  contracted  for  is  not  in  existence  ;  for  the  contract  is 
for  a  complete  vessel,  and  not  for  parts  of  a  vessel ;  and  we  have  not 
been  able  to  find  any  authority  for  saying  that  whilst  the  thing  con- 
tracted for  is  not  in  existence  as  a  whole,  and  is  incomplete,  the  gen- 
eral property  in  such  parts  of  it  as  are  from  time  to  time  constructed 
shall  vest  in  the  purchaser,  except  the  above  passage  in  the  case  of 
Woods  v.  Russell."  And  he  followed  the  authority  of  Woods  v.  Rus- 
sell on  the  ground  that  it  had  been  subsequently  recognized  and  that 
such  construction  had  probably  been  acted  upon  since  the  decision, 
by  persons  engaged  in  ship-building. 

The  cases  of  Woods  v.  Russell  and  Clarke  v.  Spence  were  recognized 
in  Laidler  v.  Burlinson,  2  Mees.  &  Welsb.  602,  though  the}-  were  not 
followed,  being  inapplicable  to  the  case  then  before  the  court. 

It  cannot  be  denied  but  the  decision  in  Clarke  v.  Spence  covers  the 
whole  ground  assumed  by  the  defendant's  counsel  in  this  case,  but  it 
has  never  yet  been  followed  in  this  country.  In  Moody  v.  Brown,  34 
Maine  R.  107,  allusion  is  made  to  such  an  exception  to  the  general  rule, 
but  it  was  unnecessarily  made,  inasmuch  as  it  was  adjudged  that  the 
case  did  not  come  within  such  an  exception.  It  has  also  been  stated 
in  the  elementary  books  as  resting  on  the  English  decisions  I  have 
cited.  Story  on  Sales,  §§  315,  316;  Chitty  on  Cont.  378;  Long  on 
Sales,  288.  I  find  no  adjudged  case  in  which  the  exception  claimed 
has  been  applied  in  this  country,  and  the  case  of  Clarke  v.  Spence,  not 
being  authority  of  itself,  ought  not  to  be  followed  here  if  it  is  in  con- 
flict with  well-settled  principles  of  law,  or  inconsistent  with  decisions 
mode  in  our  own  State.  We  are  not  placed  in  a  situation  to  feel  any 
of  the  embarrassment  from  a  supposed  precedent  under  which  the 
court  felt  compelled  in  the  case  of  Clarke  v.  Spence  to  make  a  decision 
inconsistent  with  their  own  reasoning  and  against  their  own  good 
judgment.  A  well-established  general  rule,  if  founded  upon  principle, 
should  not  be  invaded  by  an  exception  without  good  reason. 

The  question  is  simply  what  was  the  contract  of  the    parties.      2 


190  ANDREWS   V.   DURANT.  [CHAP.  II. 

Mees.  &  "Welsh.  602.  If  it  was  intended  that  certain  parts  of  the  ves- 
sel should  pass  to  the  defendants,  as  the  work  progressed  and  was  paid 
for,  it  was  very  easy  for  the  parties  to  have  so  provided  in  the  contract 
in  express  terms.  As  they  did  not  do  this,  we  must  gather  the  intent 
from  the  contract  as  expressed.  It  is  not  a  contract  to  purchase  parts 
of  a  barge,  but  an  entire  vessel ;  and  the  general  rule  that  the  title 
does  not  pass  till  completion  and  delivery,  must  control  the  construc- 
tion unless  a  different  contract  is  to  be  implied  from  the  fact  that  the 
barge  was  built  under  the  superintendence  of  a  person  employed  and 
paid  by  the  defendants,  and  was  paid  for  by  instalments  at  certain 
stages  of  the  work. 

It  cannot  be  claimed  that  the  employment  of  a  superintendent  who 
decided  upon  the  quality  of  the  materials  and  approved  the  work, 
amounted  to  a  delivery  of  the  parts  as  the  work  progressed  ;  but  it  is 
supposed  that  inasmuch  as  it  bound  the  builders  to  deliver  that  par- 
ticular barge  and  took  awa}*  from  them  the  right  to  substitute  another 
in  its  place,  it  amounted,  together  with  the  payments,  to  a  transfer  of 
the  general  property  to  the  purchaser.  The  mere  payment  by  instal- 
ments at  specific  stages  does  not  of  itself  imply  anything  further 
towards  a  change  of  title  to  property  than  the  payment  of  instalments 
at  fixed  periods  of  time.  Now,  conceding  that  the  effect  of  both  these 
circumstances  combined  is  to  place  the  builder  in  a  situation  in  which 
he  would  be  bound  to  finish  and  deliver  the  specific  vessel  begun,  it  by 
no  means  follows  that  the}'  vest  the  title  to  the  vessel  in  the  purchaser 
before  its  completion.  It  becomes,  in  such  case,  simply  a  contract  for 
the  finishing  and  delivery  of  that  particular  vessel ;  and  the  obligations 
upon  the  parties  are  the  same  as  if  the  builder  had  contracted  to  finish 
and  deliver  a  particular  vessel  partly  constructed  at  the  time  of  the 
contract. 

Merritt  v.  Johnson,  7  John.  473,  was  a  case  in  which  it  was  adjudged 
that  the  property  to  the  vessel  remained  in  the  builder  until  comple- 
tion and  delivery,  though  some  of  the  materials  employed  had  been 
furnished  by  the  purchaser. 

The  question  of  ownership  by  no  means  depends  upon  the  right  that 
a  particular  article  in  preference  to  another  shall  be  finished  for  the 
purchaser.  In  Merritt  v.  Johnson,  supra,  Travis  agreed  to  build  a 
ship  for  E.  Merritt  and  to  furnish  the  timber  for  the  frame,  and  E. 
Merritt  was  to  pay  in  instalments  and  furnish  the  materials  for  the 
joiner's  work.  E.  Merritt  furnished  various  materials  and  advanced 
money  to  Travis  with  which  to  purchase  other  materials,  and  after- 
wards assigned  the  contract  to  D.  Merritt,  who  continued  to  furnish 
materials  and  advance  money  to  Travis  on  the  contract,  until  about 
one-third  the  vessel  was  finished,  Travis  having  furnished  the  materials 
he  was  bound  to  supply  under  the  contract,  when  it  was  levied  on 
under  an  execution  against  Travis  and  sold  by  the  sheriff  to  C,  who 
afterwards  completed  the  vessel  and  sold  her  to  Johnson.  An  action 
of  trover  being  brought  by   I).    Merritt  against  Johnson,  it  was  held 


SECT.  V.]  MOODY   V.    BROWN.  191 

that  the  property  in  the  vessel  was  in  Johnson,  and  that  I).  Merritt 
could  not  have  any  property  in  the  vessel  under  the  contract  until  she 
was  completed  and  delivered  to  him.  This  was  therefore  a  ease  where 
the  ownership  remained  in  the  builder,  though  he  would  have  no  right 
to  have  substituted  another  vessel  in  its  place,  part  of  the  materials 
having  been  furnished  by  the  purchaser.  It  appeared  in  Merritt  v. 
Johnson  that  the  ship  was  built  upon  ground  hired  by  Travis,  and  in 
this  suit  the  barge  remained  at  the  yard  of  the  builders.  It  is  said, 
however,  in  Johnson  v.  Hunt,  11  Wend.  139,  that  had  the  fact  been 
different  in  Merritt  v.  Johnson  it  would  not  have  changed  the  result. 
See  also  Blackburn  on  Sales,  158  ;  2  Denio,  628  ;  21  Pick.  205. 

I  think  the  legal  title  to  the  barge  remained  in  the  builders  at  the 
time  of  their  assignment  to  the  plaintiffs,  and  the  judgment  of  the 
Supreme  Court  should  be  reversed,  and  a  new  trial  ordered. 

Judgment  reversed,  and  new  trial  ordered.1 


MOODY  v.  BROWN. 
Supreme  Judicial  Court  of  Maine,  1852. 

[Reported  in  34  Maine  Reports,  107.] 

On  exceptions  from  the  district  court,  Hathaway,  J. 

Assumpsit,  on  account  for  materials  and  labor  furnished,  and  one  on 
an  account  for  articles  sold  and  delivered.  The  account  was  for  stereo- 
type plates,  $18;  alteration  of  same,  $4;  and  some  interest  and  ex- 
pressage,  making  in  all  825.04. 

A  witness  for  the  plaintiff  testified  that  in  behalf  of  the  plaintiff  he 
presented  the  bill  and  requested  payment,  to  which  the  defendant 
replied  that  he  had  ordered  the  plates,  but  did  not  feel  able  to  take 
them  ;  that  there  was  a  mistake  in  them,  which  the  plaintiff  was  to  correct 
at  his  own  expense  ;  that  he  afterwards  carried  the  plates  to  the  store 
of  the  defendant,  who  refused  to  take  them  ;  that  he  left  them  there, 
against  the  remonstrance  of  the  defendant ;  that  the  defendant  afterwards 
offered  to  pay  820  for  the  whole  bill ;  that  at  a  still  subsequent  period, 
the  witness  asked  the  defendant  when  he  would  pay  the  $20,  who 
replied  that  he  would  do  it  in  a  few  days  ;  and  that  the  defendant 
afterwards  repeatedly  said  he  would  pay  the  twenty  dollars. 

The  judge  instructed  the  jury,  that,  if  defendant  contracted  for  the 
plates  to  be  made  for  him,  and  refused  to  accept  them  when  made, 

1  Clarkson  v.  Stevens,  106  U.  S.  505;  Green  v.  Hall,  1  Ilousf  506;  Williams  v. 
Jackman,  16  Gray,  514;  Brings  v.  A  Life  Boat,  7  Allen,  287;  Wright  v.  Tetlow,  99 
Mass.  397  ;  Elliott  v.  Edwards,  35  X.  J.  L.  265;  Edwards  <:  Elliott,  36  X.  J.  L.  449  ; 
Stevens  v.  Shippen,  29  N.  J.  Eq.  602;  Derbyshire's  Est.  81  Pa.  18,  accord  Sandford 
v  Wiggins  Ferry,  27  Ind.  522.  contra.  See  also  SeiuMer  v.  Calais  Steamboat  Co. 
1  Cliff.  370. 


192  MOODY  V.    BROWN.  [CHAP.  II. 

although  he  might  be  liable  to  plaintiff  in  an  action  for  damages  for  not 
ful tilling  his  contract,  yet  he  would  not  be  liable  in  this  action  for  their 
value,  as  for  goods  sold  and  delivered  ;  that  if  the}'  were  left  at  de- 
fendant's store  against  his  consent  and  remonstrance,  such  a  proceeding 
on  the  part  of  the  plaintiff  could  have  no  effect  to  vary  the  liabilities  of 
defendant. 

But  if  afterwards  defendant  offered  to  pay  the  twenty  dollars  in  full 
for  the  bill,  and  if  that  offer  was  accepted,  the  plaintiff  would  be  en- 
titled to  recover  the  twenty  dollars  and  interest  thereon  from  the  time 
such  offer  was  accepted,  but  that  the  defendant  would  not  be  bound  by 
that  offer,  unless  it  was  accepted. 

J.  E.  Godfrey,  for  the  plaintiff. 

/Slmjjson,  for  the  defendant. 

The  opinion  of  the  court,  Shepley,  C.  J.,  Wells,  Rice,  and  Apple- 
ton,  JJ.,  was  drawn  up  by 

Shepley,  C.  J.  There  is  not  a  perfect  agreement  of  the  decided 
cases  upon  the  question  presented  by  the  exceptions. 

The  law  appears  to  be  entirely  settled  in  England  in  accordance  with 
the  instructions.  Atkinson  v.  Bell,  8  B.  &  C.  277  ;  Elliott  v.  Pybus, 
10  Bing.  512  ;  Clarke  v.  Spence,  4  Ad.  &  El.  448. 

The  case  of  Bement  v.  Smith,  15  Wend.  493,  decides  the  law  to  be 
otherwise  in  the  State  of  New  York.  The  case  of  Towers  v.  Osborne, 
Stra.  506,  was  referred  to  as  an  authority  for  it.  The  plaintiff  in  that 
case  does  appear  to  have  recovered  for  the  value  of  a  chariot,  which  the 
defendant  had  refused  to  take.  No  question  appears  to  have  been 
made  respecting  his  right  to  do  so,  if  he  was  entitled  to  maintain  an 
action.  The  only  question  decided  was,  whether  the  case  was  within 
the  Statute  of  Frauds. 

In  the  case  of  Bement  v.  Smith,  C.  J.  Savage  appears  to  have  con- 
sidered the  plaintiff  entitled  upon  principle  to  recover  for  the  value  of 
an  article  manufactured  according  to  order  and  tendered  to  a  customer 
refusing  to  receive  it. 

This  can  only  be  correct  upon  the  ground  that  by  a  tender  the  prop- 
erty passes  from  the  manufacturer  to  the  customer  against  his  will. 
This  is  not  the  ordinary  effect  of  a  tender.  If  the  property  does  not 
pass,  and  the  manufacturer  may  commence  an  action  and  recover  for 
its  value,  while  his  action  is  pending  it  may  be  seized  and  sold  by  one 
of  his  creditors,  and  his  legal  rights  be  thereby  varied,  or  he  may 
receive  benefit  of  its  value  twice,  while  the  customer  loses  the  value. 

The  correct  principle  appears  to  have  been  stated  by  Tindal,  C.  J., 
in  the  case  of  Elliott  v.  Pybus,  that  the  manufacturer's  right  to  recover 
for  the  value  depends  upon  the  question,  whether  the  property  has 
passed  from  him  to  the  customer.  The  value  should  not  be  recovered 
of  the  customer,  unless  he  has  become  the  owner  of  the  property,  and 
can  protect  it  against  any  assignee  or  creditor  of  the  manufacturer. 

To  effect  a  change  in  the  property  there  must  be  an  assent  of  both 
parties.     It  is  admitted  that  the  mere  order  given  for  the  manufacture 


SECT.  V.]  SMITH   V.    EDWARDS.  193 

of  the  article  does  not  affect  the  title.  It  will  continue  to  be  the  prop- 
ert}'  of  the  manufacturer  until  completed  and  tendered.  There  is  no 
assent  of  the  other  party  to  a  change  of  the  title  exhibited  by  a  tender 
and  refusal.  There  must  be  proof  of  an  acceptance  or  of  acts  or  words 
respecting  it,  from  which  an  acceptance  may  be  inferred,  to  pass  the 
property. 

This  appears  to  be  the  result  of  the  best-considered  cases. 

There  is  a  particular  class  of  cases  to  which  this  rule  does  not  apply, 
where  the  customer  employs  a  superintendent  and  pays  for  the  prop- 
erty manufactured  by  instalments  as  the  work  is  performed. 

Exceptions  overruled. 


SMITH  v.  EDWARDS. 
Supreme  Judicial  Court  of  Massachusetts,  March  2-May  6, 1892. 

[Reported  in  156  Massachusetts,  221.] 

Holmes,  J.  This  case  comes  before  us  on  the  exception  of  the  Old 
Colony  Railroad  Company  to  a  ruling  of  the  court  below,  that  it  should 
be  charged  as  trustee  of  the  defendants.  The  defendants  have  been 
defaulted.  The  bill  of  exceptions  purports  to  state  the  evidence  intro- 
duced on  the  motion  to  charge  the  trustee,  but  does  not  disclose  the 
findings  of  the  judge.  We  assume  them  to  have  been  the  most  favor- 
able for  the  ruling  which  the  bill  of  exceptions  warrants.  The  defend- 
ants in  Ohio  ordered  of  the  plaintiffs,  who  are  manufacturers  of  boots 
and  shoes  in  Massachusetts,  through  the  plaintiffs'  travelling  salesman, 
certain  calf  and  buff  shoes,  to  be  made  according  to  a  sample  shown  to 
the  defendants.  It  was  assumed  at  the  argument,  and  we  assume, 
that  the  contract  bound  the  defendants,  that  there  is  no  question  under 
the  Statute  of  Frauds,  and  that  the  shoes  were  made  according  to 
sample.  They  were  forwarded  over  the  Old  Colony  Railroad,  we  must 
assume,  if  it  be  material,  at  the  defendants'  expense,  and  were  delivered 
to  the  defendants.  This  mode  of  forwarding  undoubtedly  was  author- 
ized by  the  contract.  The  defendants  accepted  the  buff  shoes,  but 
refused  to  accept  the  calf  shoes,  and  shipped  the  latter  back  to  the 
plaintiffs  by  the  same  railroad.  The  plaintiffs  refused  to  accept  them, 
sued  the  defendants  for  the  price  of  the  shoes,  and  trusteed  the  railroad 
company.  The  calf  shoes  mentioned  are  the  goods  for  which  the  rail- 
road company  was  charged. 

It  is  argued  for  the  trustees,  that,  although  the  defendants  were 
guilty  of  a  breach  of  contract  in  refusing  to  accept  the  calf  shoes,  yet, 
as  the  shoes  were  not.  in  existence  at  the  date  of  the  contract,  they  did 
not  become  the  defendants'  property  until  tendered  to  and  accepted  by 
the  defendants  after  they  were  made. 

Of  course  the  title  to  the  shoes  could  not  be  vested  in  the  defendants 

13 


194  SMITH   V.    EDWARDS.  [CHAP.  II. 

without  their  consent.  But  in  the  present  state  of  the  law  it  does  not 
need  argument  to  show  that  a  contract  can  be  made  in  such  a  way 
as  subsequently  to  pass  the  title,  as  between  the  parties,  to  goods  un- 
ascertained at  the  time  when  the  contract  is  made,  without  a  subse- 
quent acceptance  by  the  buyer,  if  the  contract  commits  the  buyer  in 
advance  to  the  acceptance  of  goods  determined  b}'  other  marks.  Mid- 
dlesex Co.  v.  Osgood,  4  Gray,  447,  449  ;  Nichols  v.  Morse,  100  Mass. 
523;  Brewer  v.  Housatonic  Railroad,  104  Mass.  593,  595;  Rodman  v. 
Guilford,  112  Mass.  405,  407;  Goddard  v.  Binney,  115  Mass.  450; 
Blanchard  v.  Cooke,  144  Mass.  207,  227;  Aldridge  v.  Johnson,  7  El. 
&  Bl.  885,  899. 

In  the  case  of  goods  to  be  manufactured,  the  seller,  as  he  has  to  ten- 
der them,  generally  has  the  right  to  appropriate  goods  to  the  contract 
so  far  that,  if  he  tenders  goods  conformable  to  it,  the  buyer's  refusal  to 
accept  them  is  a  breach.  The  buyer  cannot  sa}-  that  he  would  have 
accepted  some  other  goods  had  the}-  been  tendered.  When  goods  are 
to  be  manufactured  and  forwarded  by  a  carrier \o  a  buyer  at  a  distance, 
the  seller's  delivery  of  such  goods  to  the  carrier  as  bailee  for  the  pur- 
chaser passes  the  title.  The  seller  cannot  forward  them  until  they  are 
specified.  The  deliver}'  is  an  overt  dealing  with  the  goods  as  those  to 
which  the  contract  applies,  and  puts  them  into  a  possession  adverse 
to  the  seller.  Although  not  strictly  a  delivery,  it  is  an  act  having  the 
legal  effect  of  a  true  delivery,  which  in  common  legal  language  it  is 
said  to  be.  Orcutt  v.  Nelson,  1  Gray,  53G,  543  ;  Merchant  v.  Chap- 
man, 4  Allen,  362,  3G4  ;  Kline  v.  Baker,  99  Mass.  253,  254;  Hallgar- 
ten  v.  Oldham,  135  Mass.  1,  9.  The  act  is  required  of  the  seller  by 
the  terms  of  the  contract,  and  thus  is  assented  to  in  advance  by  the 
buyer,  on  the  condition  that,  as  supposed,  the  goods  answer  the  require- 
ments of  the  contract.  Therefore  it  is  a  binding  appropriation  of  the 
goods  to  the  contract,  and  passes  the  title  as  we  have  said.  Putnam  v. 
Tillotson,  13  Met.  517,  520  ;  Merchant  v.  Chapman,  4  Allen,  3G2,  364  ; 
Odell  v.  Boston  &  Maine  Railroad,  109  Mass.  50;  Wigton  v.  Bowley, 
130  Mass.  252,  254  ;  Fragano  v.  Long,  4  B.  &  C.  219  ;  Wait  v.  Baker, 
2  Exch.  1,  7. 

The  present  case  could  be  disposed  of  upon  a  narrower  ground.  It 
would  be  enough  to  say  that,  so  far  as  we  can  see,  the  judge  who  heard 
the  motion  to  charge  the  trustee  was  warranted  in  finding  as  a  fact  that 
the  defendants  authorized  the  plaintiffs  to  appropriate  the  shoes  to  the 
contract,  even  if  the  inference  was  not  necessary  as  matter  of  law.  The 
question  always  is  what  intent  the  parties  have  expressed,  either  in 
terms  or  by  reasonable  implication.  Anderson  v.  Morice,  1  App.  Cas. 
713  ;  Calcutta  &  Burmah  Steam  Navigation  Co.  v.  De  Mattos,  32  L.  J. 
Q.  15.  322,  328  ;  s.  c.  33  L.  J.  Q.  B.  214. 

Exceptions  overruled. 

W.  F.  Kimball,  for  the  plaintiffs. 

C  F.  Choate,  Jr.,  for  the  trustee. 


SECT.  V.]  McNEAL   V.    BRAUN.  195 


McNEAL  v.  BRAUN. 
New  Jersey  Court  of  Errors  and  Appeals,  June  Term,  1891. 

[Reported  in  53  New  Jersey  Law,  G17.] 

On  error  to  the  Supreme  Court. 

For  the  plaintiff  in  error,  Samuel  II.  Grey. 

Contra,   Charles  E.  Hend rick son. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  Brau n,  the  plaintiff  below,  in  1883  was  a  wholesale 
dealer  in  coal  at  Philadelphia.  McNeal,  who  is  now  plaintiff  in  error, 
was  engaged  in  the  foundry  business  at  Burlington,  in  this  State. 

On  the  14th  of  June,  1883,  McNeal  ordered  from  the  plaintiff  ninety- 
eight  tons  of  lump  and  steamboat  coal,  to  be  delivered  at  Burlington, 
at  $4.10  a  ton  delivered.  The  coal  was  shipped  in  a  barge  called  iL  The 
Wayward,"  on  the  21st  of  June.  The  barge  arrived  at  Burlington  on 
the  23d,  but  it  was  not  until  the  26th  that  she  was  laid  alongside  of 
the  wharf.  On  the  afternoon  of  that  day  the  defendant's  foreman  noti- 
fied the  captain  of  the  barge  to  place  it  alongside  of  the  defendant's 
wharf  In  order  that  the  boat  might  be  so  placed  that  the  steam- 
hoist  could  be  used  for  unloading,  the  boat  was  separated  into  its  two 
parts.  The  forward  part  was  made  fast  to  the  wharf,  being  separated 
from  the  wharf  by  a  float  about  three  feet  wide,  furnished  by  the  de- 
fendant, for  the  purpose  of  steadying  the  boat  in  a  position  that  was 
necessary  for  the  working  of  the  iron  buckets  on  the  steam  elevator. 
The  after  part  of  the  boat  was  moored  on  the  river  side  of  the  other 
part. 

When  the  forward  compartment  of  the  boat  was  placed  in  position, 
the  buckets  of  the  hoisting-works  were  lowered  upon  the  boat,  and 
preparations  were  made  by  the  defendant's  servants  for  unloading  the 
coal.  They  completed  their  preparations  about  ten  minutes  before  six 
o'clock,  and  stopped  work  at  six,  the  usual  time  for  quitting  work. 
During  the  night  this  compartment  of  the  boat  sank  with  the  coal  that 
was  in  it. 

The  compartment  that  was  moored  in  the  river  remained  in  safety. 
After  the  sinking  of  the  forward  compartment,  the  coal  that  was  in  the 
other  compartment,  was  unloaded  and  taken  by  the  defendant.  The 
suit  was  for  the  whole  quantity  of  coal  sold,  but  the  controversy  at  the 
trial  was  with  respect  to  the  coal  that  was  sunk  and  entirely  lost.  Un- 
der the  charge  of  the  court,  the  jury  found  for  the  plaintiff  the  full  con- 
tract price  for  the  entire  shipment. 

The  order  for  the  coal  was  given  by  the  defendant  to  Arkless,  the 
agent  of  the  plaintiff,  at  the  plaintiffs  place  of  business  in  Philadelphia. 
The  order  was  for  a  cargo  of  coal  of  an  approved  size  and  quality.  The 
coal  was  not,  at  that  time,  separated  from  the  plaintiff's  stock  on  hand. 
The  price  to  be  paid  was  $4.10  per  ton  delivered  at  Burlington.     The 


196  McNEAL   V.   BRAUN.  [CHAP.  II. 

carrier  was  selected  by  the  plaintiff,  and  be  took  from  him  a  bill  of  lad- 
ing, signed  by  the  master,  in  these  words  :  "Shipped  by  Charles  Brann, 
in  good  order,  on  board  the  boat  called  '  Wayward,'  now  lying  at  Phila- 
delphia, and  bound  for  Burlington,  N.  J.,  ninety-eight  tons  of  Thomas 
Lehigh  coal,  which  I  promise  to  deliver  at  the  aforesaid  port  of  Bur- 
lington, in  like  good  order,  the  dangers  of  the  seas  only  excepted,  unto 

A.  H.  McNeal  or assigns,  he  or  they  paying  freight  for  the  same 

at  the  rate  of  twenty  one- hundredths  dollars  per  ton. 

25  tons  lump. 

73  tons  steamboat. 

98  Captain  to  tend  guy." 

The  contract  price  of  $4.10  a  ton  was  the  price  of  the  coal  delivered 
at  Burlington.  Jf  the  defendant  paid  freight  pursuant  to  the  direction 
in  the  bill  of  lading,  the  freight  paid  was  to  be  deducted  from  the 
contract  price. 

Responsibility  for  loss  in  transportation,  in  carriage  by  sea,  has  oc- 
casioned considerable  discussion  in  the  English  courts.  The  rules  on 
this  subject  are  stated  by  Lord  Cottenliam  in  Dunlop  v.  Lambert,  6  CI. 
&  F.  600,  619,  620,  621,  and  by  the  Court  of  Queen's  Bench  and  the 
Exchequer  Chamber  in  The  Calcutta  Company  v.  De  Mattos,  32  Law 
Jour.  Q.  B.  332  ;  33  id.  214  ;  and  particularly  by  Mr.  Justice  Black- 
burn, whose  opinion  in  that  case  is  quoted  at  considerable  length  in 
1  Benj.  Sales  (Corbin's  ed.),  §  503,  and  more  fully  in  Blackb.  Sales 
(Blackstone  ed.),  *234. 

It  is  sometimes  stated,  as  a  general  rule,  that  delivery  to  the  carrier 
is  delivery  to  the  consignee,  and  that  the  goods  are  to  be  carried  to  their 
destination  at  his  risk.  But  an  examination  of  the  decisions  to  that 
effect  will  show  that  this  doctrine  prevails  only  where  the  contract  of 
sale,  as  between  the  consignor  and  consignee,  Mas  concluded  at  the 
place  of  shipment,  and  the  undertaking  to  ship  was  collateral  to  the 
contract  of  sale,  as  in  Tregelles  v.  Sewell,  7  Hurlst.  &  N.  573.  It  will 
also  be  found  that  the  rule,  uniformly  adopted  in  the  line  of  decisions, 
is  that  the  risk  of  loss  in  transportation  depends  upon  the  nature  of  the 
transaction,  the  terms  of  the  contract  and  the  intention  of  the  parties. 
In  Dunlop  o.  Lambert,  Lord  Cottenliam  said:  "When  the  party  un- 
dertaking to  consign  undertakes  to  deliver  at  a  particular  place,  the 
property  till  it  reaches  that  place,  and  is  delivered  according  to  the 
terms  of  the  contract,  is  at  the  risk  of  the  consignor."  In  Calcutta 
Company  v.  De  Mattos,  Mr.  Justice  Blackburn  said  :  "  There  is  no  rule 
of  law  to  prevent  the  parties  from  making  whatever  bargain  they  please. 
If  they  use  words  in  the  contract  showing  that  they  intend  that  the 
goods  shall  be  shipped  by  the  person  who  is  to  supply  them,  on  terms 
that  when  shipped  they' shall  be  the  consignee's  property  and  at  his 
risk,  so  that  the  vendor  shall  be  paid  for  them  whether  they  are  deliv- 
ered at  the  port  of  destination  or  not,  this  intention  is  effectual.  .  .  . 


SECT.  V.J  McNEAL   V.   BIUUX.  197 

If  the  parties  intend  that  the  vendor  shall  not  only  deliver  them  to  the 
carrier,  but  also  undertake  that  they  shall  actually  be  delivered  at  their 
destination,  and  express  such  intention,  this  is  also  effectual.  In  such 
a  case,  if  the  goods  perish  in  the  hands  of  the  carrier,  the  vendor  is 
not  only  not  entitled  to  the  price,  but  he  is  liable  for  whatever  damage 
may  have  been  sustained  by  the  purchaser  in  consequence  of  the  breach 
of  the  vendor's  contract  to  deliver  at  the  place  of  destination." 

The  De  Mattos  Case,  above  cited,  was  decided  in  the  Queen's  Bench  \ 
by  an  equally  divided  court,  and  in  the  Exchequer  Chamber  there  was 
a  diversity  of  opinion  among  the  judges.  But  on  the  question  of  law 
pertinent  to  this  case  there  was  entire  unanimity  of  opinion  among  the 
judges  in  both  courts.  The  contract  of  sale  had  been  negotiated  by 
correspondence,  and  the  material  facts  were  briefly  these  :  DeMattos 
contracted  to  deliver  the  company  one  thousand  tons  of  coals,  delivered 
at  Rangoon,  alongside,  &c,  at  forty-five  shillings  a  ton  —  payment,  one- 
half  by  bill  at  three  months  on  handing  over  bill  of  lading  and  policy 
of  insurance  on  the  cargo  to  cover  the  payment,  and  the  balance  in  cash 
on  delivery  at  Rangoon.  De  Mattos  chartered  a  ship,  and  shipped  on 
board  eleven  hundred  and  sixty-six  tons  of  coal  and  delivered  to  the 
company  the  bill  of  lading  and  the  policy  of  insurance,  and  the  com- 
pany paid  the  half  of  the  invoice  price.  On  the  voyage  the  ship  became 
disabled,  and,  in  fact,  the  coals  were  not  delivered  under  the  contract. 
Cross  suits  were  brought  —  the  one  by  De  Mattos  to  recover  the  unpaid 
contract  price,  the  other  by  the  company  to  recover  back  the  money 
paid  on  the  contract.  The  Queen's  Bench  (Cockburn,  C.  J.,  anil 
Wightman,  J.)  decided  that  DeMattos  could  not  recover  the  residue  of 
the  contract  price,  and  that  the  company  was  entitled  to  recover  back 
the  money  paid  as  damages  arising  from  the  breach  of  contract.  Black- 
burn and  Mellor,  JJ.,  concurred  in  the  view  that  De  Mattos  could  not 
recover,  but  held  that  the  company  was  not  entitled  to  recover  hack 
the  half  contract  price  it  paid,  for  the  reason  that,  by  their  construc- 
tion of  the  contract,  the  portion  of  money  paid  to  De  Mattos  was  to  be 
absolutely  his  on  handing  over  the  policy  and  the  bill  of  lading.  In 
delivering  his  opinion,  Cockburn,  C.  J.,  said  :  tk  In  every  contract  of 
sale,  there  is,  on  the  part  of  the  vendor,  an  obligation  not  only  to 
transfer  the  property  in  the  thing  sold,  but  also  to  deliver  possession 
to  the  buyer.  When  and  how  that  delivery  of  possession  shall  take 
place,  whether  in  the  interval  the  thing  sold  shall  be  at  the  risk  of  the 
buyer  or  of  the  seller,  so  that  if  it  be  lost  without  default  on  the  part 
of  the  latter,  he  shall  nevertheless  be  entitled  to  demand  the  price  or 
to  retain  it  if  already  paid,  must  depend  on  the  agreement  of  the  par- 
ties as  expressed  or  to  be  gathered  from  the  contract.  If.  by  the  terms 
of  the  contract,  the  seller  engages  to  deliver  the  thing  sold  at  a  given 
place,  and  there  be  nothing  to  show  that  the  thing  sold  was  in  the 
meantime  to  be  at  the  risk  of  the  buyer,  the  contract  is  not  fulfilled  by 
the  seller  unless  he  delivers  it  accordingly." 

In  the  Exchequer  Chamber  the  majority  of  the  court  concurred  in  the 


198  McNEAL   V.    BRAUN.  [CHAP.  II. 

views  of  Blackburn  and  Mellor,  JJ.,  in  the  company's  case,  by  a  divided 
court,  but  all  the  judges  concurred  in  the  judgment  of  the  Queen's 
Bench,  that  De  Mattos'  action  could  not  be  maintained.  It  will  be  ob- 
served, that  of  the  ten  judges  who  sat  in  both  courts,  Cockburn,  C.  J., 
and  Wightman,  Blackburn,  and  Mellor,  JJ.,  in  the  Queen's  Bench,  and 
Erie,  C.  J.,  Willes,  J.,  Channell,  B.,  and  Williams,  J.,  held  that  the 
property  in  the  coals  passed  to  the  company  by  force  of  those  terms 
of  the  contract  in  relation  to  insurance  of  the  cargo  and  the  transfer  of 
the  policy  and  the  delivery  of  the  bill  of  hiding,  but  that  the  vendor 
was  nevertheless  debarred  from  recovering  the  unpaid  contract  price  as 
a  consequence  of  his  failure  to  deliver  the  coals  according  to  contract. 

It  was  undisputed  in  the  case  now  before  the  court,  and,  in  fact,  was 
conceded  by  the  plaintiff's  counsel,  that  delivery  of  the  coal  by  the 
plaintiff,  at  Burlington,  at  his  own  expense,  was  a  material  term  in  the 
contract  of  sale.  Under  a  contract  of  this  sort,  delivery  of  the  coal  on 
board  the  barge  was  delivery  to  the  master  as  the  plaintiff's  bailee  or 
agent  to  perform  for  him  the  act  of  delivery  in  execution  of  his  con- 
tract. 1  Benj.  Sales  (Corbin's  ed.),  §  566.  Meanwhile,  and  until  de- 
livery was  consummated  in  such  a  manner  as  to  be  effectual  as  between 
vendor  and  purchaser,  the  coal  was  at  the  plaintiff's  risk. 

On  the  main  issue,  which  the  learned  judge  declared  to  be  the  ques- 
tion whose  loss  was  the  coal  which  sank,  his  instruction  was  that  this 
issue  would  depend  upon  whether  the  sale  had  been  completed  before 
the  loss  occurred;  that  where  parties  have  bargained,  the  one  that  he 
will  sell  and  the  other  that  he  will  buy,  the  duty  rests  upon  the  seller 
to  deliver  the  article  in  pursuance  of  the  agreement  he  has  made,  and 
that  to  complete  the  sale  there  must  be  an  acceptance  by  the  purchaser 
of  the  article  which  he  purchased,  in  accordance  with  that  agreement; 
that  when  that  has  been  done  "  the  sale  is  completed,  and  any  loss 
after  that  time  falls  upon  the  man  who  bought.  I  mean  any  loss  which 
is  the  result  of  no  wrongful  or  intentional  negligence  of  the  parties." 

The  court  also  instructed  the  jury  that  if  there  was  an  acceptance  by 
the  defendant,  then  the  position  of  the  captain  became  changed,  and 
his  duty  as  the  agent  of  the  plaintiff  was  at  an  end.  And  this  ques- 
tion was  left  to  the  jury  upon  the  acts  and  conduct  of  the  defendant's 
servants  before  they  stopped  work  that  night,  with  the  instruction  that 
if  the  jury  should  determine  from  the  testimony  "  that  the  defendant  or 
his  employes  so  acted  that  they  recognized  that  that  coal  was  there  at 
their  disposal,  under  their  dominion,  within  their  power,  and  that  they 
so  acted  as  to  show  that  they  were  dealing  witli  it  as  if  it  were  McNeal's, 
from  those  acts  you  may  determine  that  there  was  an  acceptance  of  the 
coal  as  being  the  coal  which  had  been  bought  under  that  bargain." 

The  transaction  between  the  parties  was  an  order  for  a  certain  quan- 
tity of  coal,  part  lump  coal  and  part  steamboat  coal,  of  an  approved 
quality.  It  was  in  effect  a  contract  of  sale  by  sample.  On  such  a  sale 
of -oods  it  is  a  condition  implied  by  law  that  the  buyer  shall  have  a 
fair  opportunity,  by  examining  the  goods,  to  satisfy  himself  that  they 


SECT.  V.]  McNEAL   V.    BRAUN.  199 

are  in  accordance  with  the  contract.  2  Benj.  Sales  (Corbin's  ed.), 
§§  910,  1025,  1042;  Ishevwood  v.  Whitinore,  11  Mees.  &  W.  347; 
Startup  v.  McDonald,  G  Man.  &  G.  593  ;  Croninger  v.  Crocker,  62 
N.  Y.  152.  And  under  a  shipment  of  goods  by  a  carrier  the  consignee 
is  entitled  to  inspect  and  examine  the  goods  to  ascertain  whether  they 
correspond  with  the  invoice,  and  to  a  reasonable  time  within  which  to 
receive  and  remove  the  goods.  For  that  purpose  a  reasonable  time 
within  usual  business  hours  must  be  allowed,  and  during  that  period 
the  liability  of  the  carrier  as  carrier  remains  undischarged.  Bradstreet 
v.  Heron,  Abb.  Adm.  209,  214;  Salmon  Falls  Manufacturing  Co.  v. 
The  Bark  Tangier,  1  Cliff.  396;  Dibble  v.  Morgan,  1  Wood,  406;  The 
Tybee,  id.  358,  363  ;  The  Barque  Idd  v.  Kemball,  8  Ben.  Adm.  Pr.  2'J 7  ; 

5  Myer  Fed.  Dec,  "  Carriers,"  §§  802,  803,  846,  852,  1009  ;  The 
Eddy,  5  Wall.  481,  493  ;  Price  v.  Powell,  3  Comst.  322  ;  Dunham  v.  B. 

6  A.  R.  R.  Co.,  46  Hun,  245  ;  Miller  v.  Steam  Navigation  Co.,  6  Seld. 
431 ;  Hedges  v.  H.  R.  R.  Co.,  6  Robt.  119  ;  reversed  in  Court  of  Ap- 
peals, but  not  on  this  point,  49  N.  Y.  223  ;  Moses  v.  B.  &  M.  R.  R. 
Co.,  32  N.  H.  523 ;  Graves  v.  The  H.  &  N.  Y.  Steamboat  Co.,  38  Conn. 
143,  152  ;  Richardson  v.  Goddard,  23  How.  28,  39  ;  Bourne  v.  Gatliffe, 
3  Man.  &  G.  643,  687;  s.  c,  11  CI.  &  F.  45,  70;  3  Lew.  Annot. 
R.  R.  &  Corp.  Rep.  54 ;  note  to  Columbus  &  Western  R.  R.  Co.  v. 
Luddem. 

The  acts  done  by  the  defendant's  servants  before  they  quit  work  were 
of  a  twofold  character.  First.  In  directing  the  barge  to  be  laid  along- 
side of  the  wharf  for  unloading.  The  captain  made  the  boat  fast  to  the 
wharf  and  remained  in  charge  during  the  night.  The  designation  by 
the  defendant  of  his  wharf  as  the  place  for  unloading,  was  an  act  in 
performance  of  the  defendant's  duty  as  consignee  to  provide  a  place  for 
the  discharge  of  the  cargo.  Second.  In  the  preparations  for  unloading. 
The  barge  was  laid  alongside  the  float  about  ten  minutes  before  six. 
The  buckets  were  lowered  down  upon  the  barge,  and  possibly  a  small 
quantity  of  coal  was  unloaded.  The  hands  quit  work  at  six,  and 
replaced  the  buckets  on  the  wharf.  In  these  acts  there  was  no  evidence 
of  an  acceptance  of  the  entire  cargo,  nor  of  a  discharge  of  the  carrier 
from  his  responsibility.  Under  the  rules  of  law  I  have  stated,  the 
defendant  was  entitled  to  a  reasonable  opportunity  to  unload  the  entire 
cargo  for  examination,  to  ascertain  whether  the  coal  corresponded  with 
his  order  and  had  arrived  in  good  condition.  By  law  he  was  secured 
these  rights  without  discharging  the  liability  of  the  carrier.  Even  if 
the  goods  had  been  accepted  so  as  to  pass  title  as  between  vendor  and 
purchaser,  the  defendant,  under  the  plaintiff's  undertaking  to  deliver 
them  at  Burlington,  still  had  a  right  to  a  reasonable  time  to  unload 
them  under  the  plaintiff's  contract  to  transport  and  deliver  the  goods. 

For  affirmance  —  None. 

For  reversal  —  The  Chancellor,  Chief  Justice,  Depue,  Dixon, 
Knapp,  Magie,  Reed,  Van  Syckel,  Brown,  Clement,  Smith.     II.1 
1  A  portion  of  the  opinion  is  omitted. 


200  SNEE   V.   PKESCOTT.  [CHAP.  IL 


SECTION  VI. 

Transfer  of  Property  by  Bills  of  Lading  and  Reservation  of 
jus  dlspunendi  by  the  vendor. 

EVANS   v.   MARLETT. 

In  The  King's   Bench,  Michaelmas  Term,  1697. 

[Reported  in  1  Lord  Raymond,  271.] 

If  goods  by  bill  of  lading  are  consigned  to  A,  A  is  the  owner,  and 
must  bring  the  action  against  the  master  of  the  ship  if  they  are  lost. 
But  if  the  bill  be  special,  to  be  delivered  to  A  to  the  use  of  B,  B  ought 
to  bring  the  action.  But  if  the  bill  be  general  to  A  and  the  invoice 
only  shows  that  they  are  upon  the  account  of  B,  A  ought  always  to 
bring  the  action,  for  the  property  is  in  him,  and  B  has  onby  a  trust,  per 
totam  curiam.  And  per  Holt,  Chief  Justice,  the  consignee  of  a  bill  of 
lading  has  such  a  propert}'  as  that  he  may  assign  it  over.  And  Shower 
said  that  it  had  been  adjudged  so  in  the  Exchequer. 


SNEE  et  al.   v.   PRESCOTT  et  als. 
In  Chancery,  February  23,  1743. 

[Reported  in  I  Atkins,  245.] 

The  plaintiffs  made  the  following  case  by  their  bill :  That  Toilet  in 
1740  consigned  to  Ragueneau  and  Company,  residing  at  Leghorn,  Ger- 
man serges  amounting  to  £2,062  lis.  besides  the  insurance  made  by 
Toilet,  with  directions  to  the  partners  to  sell  the  goods  as  soon  as 
they  could  ;  and  also  consigned  to  them  other  goods  to  the  value  of 
£181  14s.  %d.  The  partners  not  being  able  to  sell  all  the  goods,  Toilet 
gave  orders  to  barter  them  for  Italian  goods,  and  the  copartners  agreed 
that  part  of  the  goods  should  be  disposed  of  for  those  of  the  growth  of 
Italy  to  half  the  value  of  the  Italian  goods,  and  the  other  to  be  paid  for 
in  money;  and  afterwards,  by  letter  of  the  18th  of  November,  1741, 
they  advised  Toilet  thereof,  and  that  they  should  load  the  goods,  which 
were  silks,  on  board  the  "  Prince  Edward,"  and  inclose  a  bill  of  lading 
for  12  bales.  Toilet  in  1741  received  the  bills  of  lading  indorsed  by  the 
said  partners,  but  intended  for  the  use  of  Toilet  only. 

Toilet,  in  1741,  borrowed  of  the  defendants,  Julian  and  Le  Blon, 
£ 505,  and  by  way  of  security  assigned  the  bills  of  lading  for  the  12 
hales.    Toilet  being  also  indebted  to  the  other  defendants  the  Thomases 


SECT.  VI.]  SNEE   V.    PEESCOTT.  201 

in  several  sums,  for  securing  thereof  he  assigned  invoices  for  five  bales 
and  three  hales,  and  delivered  the  same  to  the  Thomases. 

Soon  after  a  commission  of  bankruptcy  issued  against  Toilet,  and  the 
plaintiffs  were  chosen  assignees,  and  received  a  letter,  directed  to  Toilet 
from  Raguenean  and  Company,  mentioning  that  they  had  bought  four 
bales  of  silk  more  for  him,  and  had  given  in  payment  for  it  four  bales 
of  serges,  and  sent  him  the  invoice  of  2448  dollars,  which  they  had 
placed  to  Toilet's  debt. 

On  the  10th  of  February,  1741,  Dawson,  the  captain  of  the  lt  Mer- 
maid," on  board  of  whose  ship  were  the  bales  of  silk,  arrived,  and  these 
goods  were  consigned  to  Toilet,  and  were  shipped  at  the  risk  and  in 
the  name  of  Toilet;  the  defendants,  Julian  and  Le  Blon,  and  the 
Thomases  showed  Dawson  the  bills  of  lading,  and  demanded  the  goods, 
but  he  refused  to  deliver  them,  and  Prescott,  partner  of  Raguenean,  who 
lived  in  London,  on  Toilet's  being  a  bankrupt,  wrote  to  his  partners, 
desiring  them  to  send  the  bills  of  lading  that  Dawson  had  signed  and 
left  with  them,  which  they  sent  to  him  accordingly,  and  at  the  same 
time  sent  an  order  to  Dawson  to  deliver  the  goods  to  Prescott,  who  sets 
up  a  right  thereto. 

But  the  plaintiffs  insist,  that  the  bills  of  lading,  though  made  to  the 
order  of  Raguenean  and  Company,  yet  being  indorsed  by  them  in  blank 
and  sent  to  Toilet,  it  did,  according  to  the  custom  of  merchants,  vest 
the  property  in  Toilet;  and  further,  that  it  is  the  custom  of  merchants 
at  Leghorn,  to  send  bills  here  filled  up  as  aforesaid,  in  order  to  conceal 
the  persons'  names  to  whom  the  goods  are  sent,  that  the  public  may  not 
know  the  persons  in  England  with  whom  such  houses  deal,  or  to  whom 
the  property  belongs. 

That  at  the  instant  the  goods  were  loaded  on  board  the  "  Prince  Ed- 
ward." the  property  vested  in  Toilet,  who  was  then  in  good  circumstances, 
and  the  reason  of  the  master  of  the  ship's  signing  several  bills  of  lading 
is  for  fear  of  losing  one  :  that  it  is  the  custom  of  merchants  to  borrow 
money  upon  bills  of  lading,  which  have  been  looked  upon  as  a  good 
security  ;  that  Toilet  was  made  debtor  for  the  goods  in  Raguenean  and 
Company's  books,  and  the  delivery  to  Dawson  was  for  the  use  of  Toilet. 
whose  loss  it  would  have  been,  if  lost  in  the  voyage. 

That  the  defendants  Le  Lion  and  the  Thomases,  notwithstanding  they 
have  an  assignment  of  the  bills  from  Toilet,  yet  do  admit  they  were 
only  pledged  to  them  for  what  was  owing  on  the  sums  they  had  lent, 
ami  upon  payment  of  that,  and  the  expense  of  the  insurance,  they  are 
willing  the  goods  should  be  delivered  to  the  plaintiffs,  who  pray  by  their 
bill,  that  the  goods  brought  by  Dawson,  and  delivered  to  Prescott,  may 
be  sold,  and  after  paying  what  shall  appear  to  be  due  to  Le  Blon  and 
the  Thomases,  that  the  remainder  may  be  paid  to  plaintiffs  for  the  bene- 
fit of  Toilet's  creditors  ;  and  also,  that  the  bills  of  lading  for  the  four 
bales  sent  in  the  "  Mermaid,"  may  be  delivered  to  the  plaintiffs. 

The  defendant  Prescott  insisted  that  the  bills  of  lading  in  the  "  Prince 
Edward"  were  not  to  deliver  the  goods  to  Tollett,  but  to  the  order  of 


202  SNEE   V.   PRESCOTT.  [CHAP.  II. 

Ragueneau  and  Company,  and  that  it  is  usual  among  merchants,  to 
require  the  master  of  the  ship,  by  which  the  goods  are  consigned,  to 
subscribe  his  name  to  three  parts  of  every  bill  of  lading,  and  that  there 
is  a  clause  in  each,  that  one  being  accomplished  the  other  two  shall  be 
void,  and  says,  on  the  delivery  of  the  goods,  he  wrote  a  receipt  for 
them,  by  indorsement  of  the  bills  of  lading  transmitted  to  him,  and  de- 
livered the  same  to  Dawson. 

That  it  is  usual  among  merchants  and  factors  at  Leghorn,  when  the}' 
ship  goods  for  persons  who  have  not  remitted  them  the  money  before- 
hand, or  for  which  they  draw  bills  of  exchange  or  where  they  run  a 
risk,  not  to  till  up  the  bill  of  lading  directly  to  the  order  of  such  person, 
but  to  the  order  of  the  shippers  or  factors  ;  so  that  if  any  accident 
happen  to  their  principal,  before  the  delivery  of  the  goods,  they  may  get 
back  the  same,  and  thereby  reimburse  themselves,  and  that  there  was 
the  greater  reason  for  such  precaution,  in  regard  Ragueneau  and  Com- 
pany had,  and  were  to  draw  on  Toilet  for  £2757  19s.  3d.  for  money 
advanced  on  the  barter  of  the  woollen  goods  for  silk. 

That  being  informed  Toilet  had  stopped  payment,  and  was  in  danger 
of  failing,  and  that  the  silk  was  about  to  be  shipped  by  the  partners  at 
Leghorn,  for  the  account  of  Toilet,  he  resolved  to  prevent  the  silk  falling 
into  Toilet's  hands  till  satisfaction  was  made,  and  thereupon  wrote  by 
the  next  post  to  his  partners,  who  in  their  answer  sent  the  two  parts  of 
the  bill  of  lading  to  be  delivered  to  Dawson,  and  an  order  for  him  to 
deliver  the  silks  to  Prescott,  according  to  the  bills  of  lading,  in  prefer- 
ence to  any  other  claim. 

That  his  partners  at  Leghorn  having  notice  of  Toilet's  circumstances 
soon  after  shipping  the  four  bales  of  goods,  applied  to  the  person  with 
whom  they  made  the  barter,  and  prevailed  with  him  to  relinquish  the 
bargain,  and  they  took  the  serges  back  again,  and  the  silks  to  their  own 
account,  and  paid  for  them  in  money,  and  then  sent  them  to  the  defend- 
ant Prescott  in  London,  who  insists  he  hath  a  right  to  claim  the  same  for 
himself  and  his  partners. 

By  his  answer  he  saith  he  is  willing  to  sell  the  silks  he  received  of 
1  >awson  as  the  court  shall  direct,  but  submits  that  the  delivery  of  the  silks 
to  Dawson  was  not  a  delivery  to  the  use  of  Toilet. 

The  defendants  the  pawnees  insisted  that  Ragueneau  and  Company's 
indorsement  on  the  bills  of  lading  was,  according  to  the  usage  of  mer- 
chants, as  much  a  transfer  of  all  their  right  to  Toilet,  as  if  the  same 
had  been  sold  in  an  open  exchange,  and  that  the  subsequent  assignment 
made  by  Toilet  to  them,  vested  the  property  of  the  goods  in  the  defend- 
ants for  repayment  of  the  money  so  lent. 

Lord  Chancellor.  This  is  as  harsh  a  demand  against  Ragueneau 
and  Company,  as  can  possibly  come  into  a  court  of  equity:  to  insist 
on  taking  their  goods  for  which  they  have  paid  half  the  price,  without 
reimbursing  them  what  they  are  out  of  pocket,  and  then  telling  them 
that  they  shall  come  in  as  creditors,  perhaps  for  half  a  crown  in  the 
pound  only,  under  the  commission  of  bankruptcy  against  Toilet,  not- 


SECT.  VI. J  SNEE   V.   PRESCOTT.  203 

withstanding  they  have  the  goods  now  in  their  own  custody,  and  a 
specific  lien  upon  them  ;  and  to  be  sure,  in  such  a  case,  a  court  of 
equity  will  lay  hold  on  anything  to  save  this  advantage  to  Prescott 
and  the  partnership, 

If  Toilet  the  bankrupt  had  gained  any  legal  property  in  the  silks,  it 
was  gone  by  his  assignment,  or  pledge  or  pawn  to  the  defendants  Le 
Blon,  &c,  call  it  which  you  will,  and  if  it  had  not  been  lor  this  circum- 
stance of  their  being  so  pledged,  the  assignees'  bill  ought  to  have  been 
dismissed  with  costs. 

But,  this  court  is  obliged  to  retain  bills  for  redemption,  because  the 
parties  have  no  other  way  of  coining  at  justice. 

There  are  twelve  parcels  or  bales  for  which  bills  of  lading  are  sent. 
and  four  parcels  or  bales  for  which  no  bills  of  lading  were  sent,  and 
therefore  I  will  deliver  the  case  from  the  latter,  as  there  can  be  no  pre- 
tence that  Toilet  had  a  legal  property  in  these,  for  a  promise  to  send  a 
bill  of  lading,  if  it  amounted  to  anything,  would  be  only  to  be  carried 
into  execution  in  equity. 

As  to  the  twelve  bales,  they  will  fall  under  a  different  consideration. 

Ragueneau  and  Company  having  advanced  a  moiety  of  the  price  for 
the  silks,  there  can  be  no  question,  while  the  goods  remained  in  their 
hands,  but  they  wrere  liable  to  this  debt,  and  Toilet  could  never  have 
compelled  them  to  deliver  the  goods,  without  paying  the  money  so 
advanced. 

If  a  factor  sells  goods  for  a  principal,  he  ma}'  bring  an  action  in  his 
own  name,  or  an  action  may  be  brought  in  the  name  of  the  principal 
against  the  vendee,  and  the  factor  may  make  himself  a  witness. 

On  the  other  hand,  a  vendor  of  goods  to  a  factor  for  the  use  of  his 
principal,  may  maintain  an  action  against  the  principal  for  goods  sold, 
and  the  factor  may  be  made  a  witness  for  the  vendor  ;  it  has  been  often 
so  settled  at  Guildhall. 

Therefore  while  the  goods  remained  in  the  hands  of  Ragueneau  and 
Company,  no  doubt  but  they  hail  a  lien  upon  them,  for  the  rnoiet\'  of 
the  price  advanced  by  them  ;  and  he  who  would  have  equity,  must  do 
equity,  by  reimbursing  them  first,  before  he  can  entitle  himself  to  the 
silks,  and  thus  it  would  have  stood,  if  there  had  been  no  consignment, 
which  it  is  insisted  makes  a  considerable  alteration;  and  vests  the  prop- 
erty in  Toilet. 

I  admit  the  case  mentioned  by  the  plaintiff's  counsel,  of  inland  deal- 
ers in  England,  that  if  goods  are  delivered  to  a  carrier  or  hoy  man  to 
be  delivered  to  A  and  the  goods  are  lost  by  the  carrier  or  hoy  man,  the 
consignee  can  onl}'  bring  the  action,  which  shows  the  property  to  be 
in  him,  and  it  is  the  same  where  goods  are  delivered  to  a  master  of  a 
vessel. 

lint  suppose  such  goods  are  actually  delivered  to  a  carrier  to  be 
delivered  to  A,  and  while  the  carrier  is  upon  the  road,  and  before 
actual  delivery  to  A  by  the  carrier,  the  consignor  hears  A,  his  con- 
signee, is  likely  to  become  a  bankrupt,  or  is  actually  one,  and  counter- 


204  SNEE   V.   PRESCOTT.  [CHAP.  II. 

mands  the  delivery,  and  gets  them  back  into  his  own  possession  again, 
1  am  of  opinion  that  no  action  of  trover  would  lie  for  the  assignees 
of  A,  because  the  goods,  while  they  were  in  transitu,  might  be  so 
countermanded. 

In  the  present  case  there  was  no  consignment  to  any  particular 
person,  but  bills  of  lading  indorsed  in  blank  to  the  order  of  consignor, 
and  therefore  rather  in  the  nature  of  an  authority  than  anything  more. 

Promissory  notes  and  bills  of  exchange  are  frequently  indorsed  in  this 
manner,  "  Pray  pay  the  money  to  my  use,"  in  order  to  prevent  their  being 
filled  up  with  such  an  indorsement  as  passes  the  interest.  Mr.  Lutwych, 
who  was  an  experienced  practiser  in  this  court,  always  did  so  in  his  bills 
of  exchange. 

The  question  of  law  is,  Whether  before  the  actual  delivery  of  the  goods 
it  was  not  in  the  power  of  the  consignor  to  countermand  it  ? 

This  must  depend  upon  the  custom  of  merchants,  and  here  indeed 
there  is  a  contrariety  of  evidence.  For  the  defendant  Prescott  the  evi- 
dence is,  that  if  agents  are  in  disburse  for  the  goods  bought  for  their' 
principal,  they  generally  make  bills  of  lading  to  their  own  order,  indorsed 
in  blank,  especially  where  they  are  in  doubt  of  the  principal's  circum- 
stances, that  they  may  by  this  means  have  it  in  their  power,  if  they  should 
see  occasion,  to  vary  the  consignment. 

The  evidence  for  the  plaintiff  is,  that  indorsing  bills  of  lading  in  blank 
does  not  retain  the  property  in  the  consignor,  any  more  than  if  they 
were  indorsed  to  the  consignee  by  name,  but  is  done  only  to  conceal  the 
amount  of  the  quantity  of  the  goods  consigned,  it  being  detrimental  to 
the  consignee  that  it  should  be  known. 

But  then  the  proof  on  the  part  of  the  plaintiff  does  not  speak  as  to  the 
particular  circumstances,  where  the  agents  suspect  their  principals  to  be 
failing. 

The  question  is,  On  which  side  the  evidence  is  strongest? 

The  strongest  proofs  are  certainly  on  the  part  of  the  defendants,  and 
there  is  no  occasion  to  send  it  to  law  on  this  account. 

Though  goods  are  even  delivered  to  the  principal,  I  could  never  see 
any  substantial  reason  why  the  original  proprietor,  who  never  received 
a  farthing,  should  be  obliged  to  quit  all  claim  to  them,  and  come  in  as 
a  creditor  only  for  a  shilling  perhaps  in  the  pound,  unless  the  law  goes 
upon  the  general  credit  the  bankrupt  has  gained  by  having  them  in  his 
custody. 

But  while  goods  remain  in  the  hands  of  the  original  proprietor,  I 
see  no  reason  why  he  should  not  be  said  to  have  a  lien  upon  them  till 
he  is  paid,  and  reimbursed  what  he  so  advanced  ;  and  therefore  I  am 
<>f  opinion  the  defendant  Prescott  had  a  right  to  retain  them  for  himself 
ami  company. 

It  has  been  objected,  that  in  case  of  any  loss  or  accident  to  the  goods, 
it  was  Toilet's  risk  only. 

But  suppose  any  damage  had  happened  to  these  goods  during  the  voy- 
age, and  in  transitu,  there  had  been  an  alteration  of  the  consignment,  the 
loss  clearly  must  have  been  borne  by  the  consignor. 


SECT.  VI.]  SXEE   V.    PBESCOTT.  205 

Consider  this  case  in  the  next  place,  under  the  act  of  parliament  of 
the  5  Geo.  2,  upon  the  clause  of  mutual  credit. 

11  Where  it  shall  appear  to  the  commissioners  that  there  hath  been 
mutual  credit  given  by  the  bankrupt  and  any  other  person,  or  mutual 
debts  between  the  bankrupt  and  any  other  person,  at  any  time  before 
such  person  became  bankrupt,  the  commissioners  or  the  assignees 
Shall  state  the  account  between  them,  and  one  debt  may  be  set  against 
another,  and  what  shall  appear  to  be  due  on  either  side  on  the  balance 
of  such  account,  and  on  setting  such  debts  against  one  another,  and 
no  more,  shall  be  claimed  or  paid  on  either  side  respectively." 

The  construction  of  this  clause  has  always  been  that  an  account  must 
be  taken  of  their  respective  demands,  and  that  the  balance  only,  if  in 
favor  of  the  bankrupt,  shall  be  proved  under  the  commission. 

Suppose  Toilet  had  never  assigned  these  goods  and  the  assignees 
under  the  commission  of  bankruptcy  had  brought  an  action  of  trover  in 
his  right,  and  by  strictness  of  law  had  recovered,  would  even  the 
courts  of  law  have  suffered  execution  to  be  taken  upon  the  whole  goods? 
I  think  they  would  not,  and  in  that  case  I  would  have  directed  that  out 
of  the  damages,  upon  a  writ  of  inquiry,  there  should  have  been  deducted 
the  half  price,  paid  by  Ragueneau  and  Company  for  the  silks  ;  a  fortiori 
this  ought  to  be  done  in  a  court  of  equity. 

As  to  the  cases  cited,  Wiseman  v.  Vandeput,  2  Vern.  203,  is  much 
stronger  than  the  present.  There  ;tA,  being  beyond  sea,  consigns 
goods  to  B,  then  in  good  circumstances  in  London,  but  before  the  ship 
sets  sail  news  came  that  B  was  failed,  and  thereupon  A  alters  the 
consignment  of  the  goods,  and  consigns  them  to  the  defendant ;  the 
court  held,  that  if  A  could  by  any  means  prevent  the  goods  coming  into 
the  hands  of  B  or  his  assignees,  it  is  allowable  in  equity,  and  B  or  his 
assignees  shall  have  no  relief  in  equity."  And  so  is  the  case  ex  parte 
Clare,  before  Lord  Chancellor  King,  for  the  goods  there  had  been 
actually  delivered. 

If  the  defendant  Prescott  had  got  the  goods  back  again  by  anv 
means,  provided  he  did  not  steal  them,  I  would  not  blame  him ; 
and  I  am  of  opinion  that  to  take  them  from  him  would  be  extremely 
unequitable. 

In  the  case  ex  parte  Frank,  before  Lord  Talbot  the  goods  were  ac- 
tually delivered,  here  they  are  not. 

Upon  the  whole,  from  the  justice  of  the  case,  and  from  the  evidence 
on  the  custom  of  merchants,  I  declare  as  to  the  four  bales  of  silk,  that 
the  same  being  in  the  possession  of  Prescott  and  his  partners,  the  said 
bales  or  the  value  ought  not  to  be  taken  from  them,  without  satisfac- 
tion made  them  for  the  money  laid  out  by  them  on  the  last  mentioned 
bales  and  charges  incident  thereto,  and  for  their  commission  thereon. 

Let  the  Master  take  an  account  of  the  money  received  by  Prescott 
by  sale  of  the  silks,  and  he  and  his  partners  to  be  charged  with  the 
same.  Let  the  silk  remaining  in  specie  be  sold,  and  the  Master  is  to 
distinguish  what  is  the  produce  of  the  silk  comprised  in  the  pledges  to 


206  CALDWELL  V.    BALL.  [CHAP.  II. 

the  several  pawnees,  let  the  same  be  ratably  applied  to  pa}*  what 
shall  be  due  to  Prescott  and  partners,  for  the  mone}'  advanced  for  the 
last  mentioned  bales,  charges,  and  commission,  according  to  the  propor- 
tion which  the  same  bears  to  the  respective  values  of  the  particular 
bales  of  silk  comprised  in  each  of  the  pledges,  and  after  such  proportion 
as  is  to  be  borne  out  of  the  value,  the  residue  to  go  towards  paying 
Julian  and  Le  Blon  for  their  principal  and  interest,  and  also  after 
the  like  deduction  to  Prescott  for  the  silks  pledged  to  the  Thomases, 
the  residue  to  be  applied  towards  payment  of  principal  and  interest  to  the 
Thomases,  and  if  not  enough  to  pay  Julian  and  Le  Blon  and  the 
Thomases,  the}-  to  come  in  as  creditors  under  the  commission  in  propor- 
tion ;  and  if  any  overplus  by  the  sales  of  the  silk,  the  same  to  go  to- 
wards paying  the  costs  of  Prescott  and  partners,  Julian,  Le  Blon,  and 
the  Thomases;  if  no  overplus,  the  Master 'to  rate  the  costs  between 
them  ;  and  if  any  overplus  after  payment  of  the  said  debts  and  costs, 
the  same  to  be  paid  to  the  assignees  of  the  bankrupt,  for  the  use  of  the 
other  creditors. 


CALDWELL   v.   BALL. 
In  the  King's  Bench,  May  17,   1786. 

[Reported  in  1  Term  Reports,  205.] 

Trover  for  fifty  hogsheads  and  one  hundred  and  twenty  tierces  of 
sugar,  and  thirty  puncheons  of  rum. 

On  a  motion  to  set  aside  the  verdict  which  had  been  given  for  the 
defendant  in  this  cause,  and  to  grant  a  new  trial,  Willes,  J.  before 
whom  this  cause  was  tried  at  the  last  Assizes  at  Lancaster,  made  the 
following  report :  — 

The  question  arises  upon  two  bills  of  lading,  signed  by  the  defendant 
who  was  captain  of  the  ship  Tyger,  under  one  of  which  bills  of  lading 
the  plaintiffs  claim. 

Thompson,  the  shipper  of  the  goods  in  question,  was  a  considerable 
planter  in  the  island  of  Jamaica,  and  corresponded  with  Fairbrother, 
a  merchant  residing  at  Liverpool.  Previous  to  the  19th  of  August, 
1784,  Fairbrother  had  acted  as  the  general  agent  or  consignee  of 
Thompson,  but  from  that  time  his  general  agency  ceased  in  conse- 
quence  of  a  power  of  attorney  to  Dorothy  Thompson  and  Brom  field. 
which  superseded  his  authority.  From  that  time,  whatever  act  was 
done  by  Fairbrother  on  behalf  of  Thompson  was  by  virtue  of  a  special 
order  or  commission  for  that  specific  purpose. 

The  above-mentioned  power  of  attorney  to  Dorothy  Thompson  and 
Bromfield  authorized  them  to  raise  money  for  the  use  of  Thompson, 
whose  affaire  were  then  much  involved,  and  to  make  a  mortgage  upon 
his  estate  in  Jamaica.     It  likewise  empowered  them  to  enter  into  any 


SECT.  VI.]  CALDWELL   V.    BALL.  207 

contract  that  they  should   think  fit  for  consigning  and  shipping  any 
sugar  or  produce  made  on  an}'  of  the  plantations. 

At  the  time  that  this  power  arrived  in  England,  Thompson  was  in- 
debted to  the  house  of  Caldwell  and  Company,  the  present  plaintiffs, 
who  were  merchants  of  Liverpool,  in  the  sum  of  £4,000.  By  way  of 
a  security  for  this  debt,  Dorothy  Thompson  and  Bromfield  gave  the 
plaintiffs  a  mortgage  dated  the  20th  of  March  178.3,  for  £7.000  upon 
the  plantations  in  Jamaica,  and  likewise  entered  into  a  covenant  for 
the  future  consignment  of  Thompson's  sugars  to  them. 

By  a  subsequent  indenture,  dated  10th  of  May,  1785,  and  executed 
between  the  same  parties,  after  reciting  the  above-mentioned  mortgage, 
it  was  declared,  "that  whereas  the  sum  of  £4,000  or  thereabouts,  part 
of  the  said  sum  of  £7,000  at  the  time  of  the  execution  of  the  said  inden- 
ture, was  actually  owing  b}*  the  said  T.  P.  Thompson  to  the  said  C. 
Caldwell  and  Company,  for  which  they  have  the  bond  of  the  said  T. 
P.  Thompson  and  others,  and  the  further  sum  of  £100  has  been  also 
advanced  to  the  said  T.  Brom field,  as  the  attorney  of  the  said  T.  P. 
Thompson,  and  the  remainder  of  the  said  sum  of  £7,000  was  intended 
to  have  been  so  advanced  ;  but  doubts  having  arisen  as  to  the  force 
and  validity  of  the  power  of  the  said  T.  Bromfield  to  charge  with  effect 
the  said  plantation  and  premises,  and  it  being  uncertain  what  sum  of 
money  the  said  plantation  and  premises  are  already  mortgaged  for, 
and  what  other  circumstances  affect  the  same,  it  has  been  agreed  that 
the  said  indentures  of  lease  and  release  (meaning  the  before-mentioned 
mortgage)  shall  be  sent  out  to  Jamaica,  to  the  correspondent  of  the 
said  Charles  Caldwell  and  Thomas  Smyth,  to  be  recorded  in  the  said 
island,  and  for  information  how  the  said  estate  is  affected  by  former 
incumbrances ;  and  that  so  soon  as  the  said  plantation,  lands,  and 
premises  are  effectually  made  liable  to  the  payment  of  the  said  sum  of 
£7,000  and  interest,  according  to  the  terms  of  the  said  indenture  of 
release,  and  the  said  Charles  Caldwell  and  Thomas  Smyth  are  well 
satisfied  that  the  same  are  a  good  and  sufficient  security  for  the  said 
sum  of  £7,000  and  interest,  and  are  also  satisfied  that  the  said  Thomas 
Pepper  Thompson  will  consign  the  produce  of  the  said  plantation  to 
the  said  Charles  Caldwell  and  Thomas  Smyth  according  to  the  terms 
of  the  said  indenture  of  release,  then  and  not  until  then,  the  said 
Charles  Caldwell  and  Thomas  Smyth  are  to  advance  unto  the  said 
Thomas  Bromfield,  as  attorney  for  the  said  Thomas  Pepper  Thompson, 
the  remainder  of  the  said  sum  of  £7,000  ;  and  in  the  mean  time  no 
interest  for  more  than  is  or  may  be  actually  advanced  is  to  be  charged 
or  payable.  But  it  is  fully  understood  amongst  the  parties,  that  the 
said  Charles  Caldwell  and  Thomas  Smyth  are  not  to  be  under  any 
obligation  of  advancing  any  more  money  than  they  have  done  already, 
until  they  are  fully  satisfied  with  the  propriety  thereof,  and  are  content 
to  do  so." 

At  the  time  this  indenture  bore  date  the  house  of  France  and  Com- 
pany, merchants  at  Liverpool,  were  also  creditors  of  Thompson  to  the 


208  CALDWELL   V.    BALL.  [CHAP.  II. 

amount  of  £3,000  for  money  advanced  to  him  some  time  before  through 
the  hands  of  their  agents  in  Jamaica,  Messrs.  Coppell  and  Goldwin  ; 
and  Thompson,  to  discharge  this  demand,  had  drawn  two  bills  of  ex- 
change, bearing  date  the  28th  July,  1784,  upon  Dorothy  Thompson 
and  Thomas  Bromfield,  payable  at  ninety  days'  sight,  in  favor  of 
Messrs.  Coppell  and  Goldwin,  who  indorsed  the  same  to  the  order  of 
Fiance  and  Company. 

Extract  of  a  Letter  from  Thompson  to  Fairbr  other,  dated  the  6th  of 
December,  1784,  from  Jamaica. 

I  have  now  the  pleasure  to  inform  you  that  I  have  the  most  pleas- 
ing prospect  of  a  crop,  which,  avoiding  accidents,  I  hope  will  enable 
me  to  take  up  those  heavy  bills  when  due,  which  my  sister  (Dorothy 
Thompson)  will  inform  you  of,  and  for  which  1  shall  ship  200  casks  on 
the  "Tyger,"  Captain  Ball,  who  expects  to  sail  in  all  next  month. 

Extract  of  a  Letter  from  Thompson  to  Fairbr  other,  dated  Jamaica, 
23d  January,  1785. 

I  shall  wait  upon  Messrs.  Coppell  and  Goldwin,  to  desire  them  to 
write  to  Messrs.  France  and  Company,  relative  to  the  bills  drawn  in 
their  favor.  We  are  making  fine  sugar,  and  a  large  quantity  of  it.  I 
hope  you  will  make  Messrs.  Caldwell  and  Company  satisiied,  until  I 
have  the  pleasure  of  seeing  them,  which  will  be  soon,  as  I  am,  please 
God,  determined  to  leave  this  island  in  all  July  next  in  the  packet. 

Extract  of  a  Tetter  from   Thompson  to  Fairbrother,  dated  Jamaica, 

lbth  March,  1785. 

I  shall  have  on  board  the  "  Tyger"  one  hundred  and  seventy  hogs- 
heads and  tierces,  and  thirty  puncheons,  most  of  which  are  already  on 
board.     She  will  sail  the  beginning  of  April. 

N.  B.  With  respect  to  insuring  what  I  shall  have  on  board  the 
"  Tvger,"  I  shall  leave  it  to  your  own  option.  Should  she  be  long  on  her 
passage  you  might  get  insurance  for  £2,000,  as  we  could  not  well  bear 
a  loss  just  now. 

On  the  same  day  on  which  the  last  mentioned  letter  from  Jamaica 
was  written  to  Fairbrother,  he,  being  applied  to  by  Messrs.  Caldwell 
and  Company  for  payment  of  Thompson's  debt,  wrote  the  following 
answer  to  them  :  — 

Messrs.  Caldwell  and  Company. 

In  consequence  of  your  application  to  me  for  money  on  account  of 
Mr.  Thompson,  I  am  sorry  to  inform  you  that  I  have  nothing  where- 
with to  pay.  A  letter  from  that  gentleman  acquaints  me  that  he  will 
ship  two  hundred  casks  of  sugar  and  rum  on  board  the  "  Tyger,"  Captain 


SECT.  VI.J  CALDWELL  V.    BALL.  209 

Ball.     I  will  be  obliged  to  you  if  you  will  order  insurance  on  these 
goods.  T.  Fairbrother. 

Liverpool,  15th  March,  1785. 

On  the  18th  of  March,  1785,  the  defendant  signed  the  bills  of  lading 
in  question. 

One  of  these  bills  of  lading  for  the  whole  cargo,  which  was  acknowl- 
edged to  have  been  the  first  signed  by  the  defendant,  was  to  deliver  to 
Messrs.  Thompson  and  Fairbrother,  or  their  assigns  ;  this  was  indorsed 
by  Thompson  in  Jamaica,  and  sent  by  him  to  Fairbrother  in  England, 
where  it  arrived  on  the  20th  of  May,  enclosed  in  the  following  letter: 

Jamaica,  18th  March,  1785. 
I  send  you  enclosed  a  bill  of  lading  for  what  goods  I  have  got  on 
board  the  "  Tyger."     This  will  acquaint  you  of  my  being  obliged  to 
assign  the  other  bills  of  lading  to  Coppefi  and  Company  for  the  security 
of  the  payment  of  the  bills  drawn  in  their  favor,  etc. 

A  short  time  after  the  receipt  of  this  letter,  Fairbrother  indorsed 
the  bill  of  hiding  above  mentioned  to  Messrs.  Caldwell  and  Company, 
the  present  plaintiffs  ;  who,  after  they  were  in  possession  of  it,  ad- 
vanced two  sums  amounting  together  to  £219  13s.  8d.  for  the  use  of 
Thompson. 

The  other  two  bills  of  lading  for  different  parts  of  the  cargo,  making 
up  the  whole  together,  were  to  deliver  to  the  order  of  the  shipper  or 
his  assigns,  and  indorsed  by  Thompson  as  follows:  "Deliver  the 
within  to  Messrs.  Thompson  and  Fairbrother,  provided  the}"  engage  to 
pay  the  net  proceeds  to  Messrs.  France  and  nephew,  otherwise  deliver 
them  to  the  order  of  James  France  nephew  on  account  of  Coppell  and 
Goldwin." 

These  last  bills  of  lading  had  been  delivered  into  the  hands  of  Cop- 
pell and  Goldwin  by  Thompson  at  the  time  when  he  wrote  the  letter 
of  the  18th  of  March,  1785,  to  Fairbrother,  as  appeared  by  that  letter, 
and  were  afterwards  received  by  France  and  Company  on  the  6th  June, 
1785,  in  a  letter  from  Messrs.  Coppell  and  Goldwin,  dated  10th  April. 

Captain  Ball,  the  defendant,  arrived  at  Liverpool  on  the  19th  June, 
17*.">,  having  on  board  his  ship  the  goods  in  question. 

The  day  alter  his  arrival  the  plaintiffs  demanded  the  goods  of  him, 
when  he  acknowledged  the  bill  of  lading,  but  said  that  he  could  not 
deliver  the  goods  without  the  consent  of  the  owners  of  the  ship,  who 
were  France  and  Company. 

On  the  next  day  the  plaintiffs  saw  France,  and  repeated  their  de- 
mands, tendering  at  the  same  time  all  charges  of  freight,  etc.  France 
said,  that  neither  he  nor  the  Captain  would  deliver  the  goods,  unless 
upon  a  promise  that  the  net  proceeds  should  be  paid  to  him.  This  was 
refused  by  the  plaintiffs. 

Willes,  J.,  then  observed,  that  on  the  trial  several  points  had  been 
made  by  the  plaintiffs:  — 

14 


210  CALDWELL  V.    BALL.  [CHAP.  II. 

1st.  That  the  Captain  had  no  right  to  retain  the  goods  in  question, 
for  that  he  was  liable  in  an  action  of  trover  on  the  bill  of  lading  signed 
by  hini. 

But  in  answer  to  it,  he  had  considered  this  in  reality  as  an  action 
between  the  plaintiffs  and  France  and  Company,  and  that  the  defend- 
ant who  was  captain  of  the  ship  was  merely  a  trustee  for  one  or  the 
other,  and  was  indemnified  in  the  mean  time.  That  he  was  in  a  simi- 
lar situatiou  to  a  sheriff,  when  contrary  demands  are  made  by  the 
assignees  of  the  bankrupt  and  a  creditor  claiming  under  an  execution. 

2dh/.  It  was  insisted  that  the  defendant  had  done  wrong,  in  refusing 
to  deliver  the  goods  according  to  the  first  bill  of  lading  signed,  by 
which  he  had  bound  himself. 

As  to  this  point,  he  had  left  it  to  the  jury  to  consider  under  the  par- 
ticular circumstances  in  which  all  the  parties  stood.  He  had  repre- 
sented to  them  that  the  defendant  was  master  of  France  and  Compan}''s 
ship,  and  was  charged  to  deliver  the  goods  to  them  b}T  Coppell  and 
Gold  win. 

That  the  conduct  of  Fairbrother  was  in  some  degree  culpable,  in 
assigning  the  bill  of  lading  over  to  the  plaintiffs  immediately  after  he 
had  received  it,  against  what  he  knew  to  be  the  design  of  his  principal. 

And  that  as  the  plaintiffs,  and  France  and  Company,  were  both  fair 
creditors,  and  bond  fide  holders  of  the  bills,  he  who  had  first  got  pos- 
session by  a  legal  title  ought  to  be  preferred  ;  and  that  for  this  purpose 
the  possession  of  Coppell  and  Goldwin  was  to  be  considered  as  the 
possession  of  France  and  Company. 

3dly.  It  was  objected  that  France  and  Company  were  not  creditors 
of  Thompson,  because  the  bills  of  exchange  were  not  due,  and  there- 
lore  that  they  had  no  equitable  lien  on  the  goods. 

But  that  was  answered  by  saying,  that  the  consideration  for  these 
bills  had  actually  been  advanced  by  France  and  Company. 

It  lily.  It  was  insisted  that  the  consignment  of  these  goods  was 
bound  by  the  mortgage  to  the  plaintiffs,  executed  by  Broinfield  under 
the  power  of  attorney. 

This  was  answered,  by  saying  that  the  mortgage  did  not  affect  this 
transaction,  being  subsequent  in  point  of  time.  That  at,  all  events  it 
was  only  a  covenant  which  bound  the  covenantor  personally. 

Under  these  directions  the  jury  had  given  their  verdict  for  the  de- 
fendant, of  which  he  had  no  reason  to  disapprove. 

Scott,   Wood,  and  Lom  showed  cause  against  the  rule. 

Wilson,  Chambre,  and  S.  Heywood,  contra. 

Willes,  .1.,  gave  no  further  opinion,  but  declared  himself  satisfied 
with  the  verdict. 

Ashhi  rst,  -I.  I  do  not  think  upon  the  whole  of  this  transaction  that 
this  can  lie  considered  as  a  verdict  either  against  evidence  or  law,  and 
therefore  there  ought  not  to  be  a  new  trial. 

There  is  no  reason  for  saying  that  either  the  plaintiffs  or  France 
and  Company  are  not  equitable  holders  of  the  several  bills  of  lading. 


SECT.  VI.]  CALDWELL   V.    BALL.  211 

When  equity  is  equal  between  the  parties,  a  legal  title  must  prevail. 
This  reduces  the  question  to  :i  mere  point  of  law.  I  shall  put  out  of 
the  question  all  the  letters,  which  ought  not  to  prejudice  the  plaintiffs, 
because  they  were  not  proved  to  have  had  actual  notice  of  them  ; 
neither  are  they  guilty  of  negligence  in  not  having  endeavored  to  learn 
their  contents.  They  knew  that  Fairbrother  acted  as  the  agent  of 
Thompson,  and  had  no  reason  to  be  suspicious  of  his  authority. 

fjpon  the  merits  of  the  case,  the  leaning  of  my  inclination  would 
rather  be  in  favor  of  the  defendant,  whom  I  consider  as  the  servant  of 
France  and  Company,  than  in  favor  of  the  plaintiffs,  because  they  have 
got  another  security. 

But  in  point  of  law  also  the  plaintiffs  are  not  entitled  to  recover. 
Three  bills  of  lading  were  signed  by  the  captain  :  the  first  is  a  general 
one,  consigning  the  whole  cargo  to  the  order  of  Thompson  and  Fair- 
brother;  the  other  two  arc  partial  consignments  of  different  parts  of 
the  same  cargo  to  the  order  of  the  shipper.  If  it  could  be  proved,  or 
there  was  any  reason  to  infer  that  the  defendant  meditated  a  fraud  on 
any  person,  that  would  afford  an  argument  as  against  hi  in  ;  but  no 
fraud  can  be  presumed  here. 

I  do  not  see  indeed  the  reason  of  making  these  bills  of  lading  in  a 
different  form,  but  the  captain  might  suppose  them  to  be  the  same  in 
effect;  for  he  knew  that  Fairbrother  was  merely  an  agent  for  Thomp- 
son. Therefore  I  do  not  think  that  they  can  be  said  to  be  inconsistent ; 
they  are  all  of  them  in  substance  to  the  order  of  the  shipper.  Whoever 
then  was  first  in  possession  of  either  of  these  bills  of  lading  had  the 
legal  title  vested  in  him. 

It  appeared  by  the  letter  of  the  18th  of  March,  that  at  that  timtT 
Thompson  had  indorsed  two  of  the  bills  of  lading  to  the  agents  of 
France  and  Company.  In  my  opinion,  that  was  an  immediate  transfer 
of  the  legal  interest  in  the  cargo,  and  that  same  letter,  which  also  con- 
veyed the  other  bill  of  lading  to  Fairbrother,  gave  him  notice  of  this 
indorsement. 

It  was  argued  that  the  defendant  was  bound  to  deliver  the  cargo 
according  to  his  undertaking;  but,  as  he  knew  of  this  indorsement  to 
Coppell  and  Goldwin,  he  considered  himself  bound  to  deliver  the  cargo 
according  to  that  bill  of  lading,  which  was  first  possessed  by  oue  of 
the  parties.  He  then  concluded  that  he  should  fulfil  his  undertaking 
by  delivering  to  the  order  of  the  shipper.  As  to  the  plaintiffs  being  in 
possession  of  the  bill  of  lading  under  which  they  claim,  before  the 
other  two  arrived  in  England,  the  time  of  their  arrival  cannot  vary  the 
case,  for  the  legal  title  was  vested  in  Coppell  and  Goldwin  by  their 
being  indorsed  to  them. 

Buller,  J.  Several  objections  have  been  made  to  this  verdict;  but 
the  case  is  confined  to  a  very  narrow  compass. 

The  first  objection  was,  that  the  defendant  had  no  right  to  withhold 
the  goods  after  demand  made  by  the  holder  of  the  bill  of  lading.  The 
answer  given  to  it  was,  that  he  was  indemnified,  and  that  it  ought  to 


212  CALDWELL  V.    BALL.  [CHAP.  II. 

be  considered  as  an  action  between  the  plaintiffs  and  France  and 
Company.  But  I  do  not  think  that  the  doctrine  of  indemnity  applies 
to  such  cases  as  these.  Besides,  it  always  applies  against  a  defendant, 
and  not  for  him.  If  it  appear  that  a  defendant  stands  in  the  place  of  a 
third  person,  he  shall  not  be  permitted  to  avail  himself  of  any  objection 
against  the  merits  of  the  case,  which  such  third  person  could  not  have 
availed  himself  of. 

The  2d  objection  was,  that,  as  there  were  different  bills  of  lading, 
the  defendant  was  bound  to  deliver  the  cargo  according  to  the  first  bill 
of  lading  actually  signed. 

This  being  the  real  point  of  the  case,  I  shall  reserve  it  till  last. 
3d  Objection.     That  as  the  plaintiffs  and  France  and  Company  were 
bond  fide  holders  of  these  bills  of  lading,  they  who  first  got  possession, 
as  between  these  parties,  were  to  be  preferred. 

But  bare  possession  conveys  no  title,  as  between  persons  claiming 
under  different  rights.  The  question  here  is,  who  has  the  legal  title? 
For  the  person  who  first  gets  possession  under  the  legal  title  must 
prevail.  . 

4thly.  That  France  and  Company  were  not  creditors  to  Thompson 
at  the  time  that  the  bills  were  indorsed  to  them.  Hut  that  is  not  so. 
For  they  stood  in  the  situation  of  payees  of  the  bills  of  exchange,  for 
which  they  had  given  a  valuable  consideration. 

The  last  objection  was,  that  the  plaintiffs  were  entitled  under  the 
covenant  contained  in  the  mortgage  to  consign  to  them.  The  answer 
given  to  that  was  right;  that  the  mortgage  had  nothing  to  do  with 
this  question.  It  was  subsequent  to  the  transaction  ;  and  besides,  it 
was  only  a  covenant  to  consign,  which  could  not  bind  third  persons. 

Now  as  to  the  principal  point,  it  is  material  to  consider  the  nature 
of  a  bill  of  lading.  It  is  an  acknowledgment  under  the  hand  of  the 
captain,  that  he  has  received  such  goods,  which  he  undertakes  to  de- 
liver to  the  person  named  in  that  bill  of  lading.  It  is  assignable  in  its 
I  nature;  and  by  indorsement  the  property  is  vested  in  the  assignee. 
It  is  now  clearly  settled  that  goods  at  sea  may  be  so  assigned.  This 
doctrine  is  laid  down  in  Evans  and  Marlett,  1  Lord  Ray.  271,  and  is 
recognized  by  Lord  Mansfield  in  Wright  and  Another  v.  Campbell 
and  Another.     4  Burr.  2051, 

It  is  argued  that  the  captain  must  be  answerable  at  all  events  in 
this  action,  because  he  signed  the  first  bill  of  lading  to  the  order  of 
Thompson  and  Fairbrother,  who  indorsed  it  to  the  plaintiffs.  I  think 
it  very  material  to  consider  who  Fairbrother  was.  He  had  no  interest 
in  these  goods  ;  and  he  was  known  to  all  the  parties  to  be  the  agent  of 
Thompson.  Then  Fairbrother  must  be  considered  as  Thompson  him- 
self. The  bills  of  lading  were  all  to  the  order  of  Thompson ;  he  had 
then  the  absolute  control  over  the  goods,  and  might  have  unshipped 
them  if  lie  had  so  pleased.  So  that  they  are  not  like  goods  consigned 
to  a  third  person,  for  they  remained  under  the  power  of  Thompson  all 
the  time  till  he  indorsed  the  bills  of  lading.     If  Thompson   and  Fair- 


SECT.  VI.]  WAI.LEY   V.    MONTGOMERY.  213 

brother  are  to  be  considered  as  the  same  person,  it  is  the  same  as  if 
the  bills  of  lading  were  to  the  order  of  Thompson  alone.  Then  the 
question  is,  who  has  the  prior  right  under  him? 

It  was  said  by  the  plaintiff's  counsel,  that  the  defendant  was  the 
agent  of  France  and  Company,  and  that  they  must  be  taken  to  know 
what  he  did  ;  but  that  makes  against  the  plaintiffs  ;  for  at  the  time 
when  Thompson  assigned  the  two  bills  of  lading  to  Coppell  and  Gold- 
win,  the  defendant  knew  that  lie  had  the  other  in  his  hands,  and  could 
not  therefore  have  assigned  it  to  any  other  person.  The  defendant 
then  acted  fairly,  and  it  could  only  happen  by  the  subsequent  miseon- 
duet  of  Thompson,  namely,  by  his  afterwards  indorsing  one  of  the 
bills  of  lading  to  another  party,  that  any  difficulty  could  arise. 

Then  the  question  is,  whether  this  bill  of  lading,  being  made  in  favor 
of  Thompson  and  Fairbrother  jointly,  can  be  distinguished  from  one 
made  in  favor  of  Thompson  only?  I  think  it  cannot,  because  Fair- 
brother  was  known  to  the  parties  to  be  the  agent  of  Thompson. 

As  therefore  this  transaction  is  to  be  considered  in  the  same  light  as 
if  all  the  bills  of  lading  had  been  made  to  the  order  of  Thompson  alone, 
how  does  the  question  stand  as  between  the  plaintiffs  and  France  and 
Company?  Both  parties  claim  under  Thompson:  but  France  and 
Company  have  the  first  legal  right ;  for  two  bills  of  lading  were  first 
indorsed  to  them,  and  the  letter  which  conveyed  the  other  bill 
of  lading  to  Fairbrother  apprised  him  at  the  same  time  of  this 
indorsement.  Rule  discharged. 


WALLEY   v.  MONTGOMERY. 

Ix  the  King's  Bench,  May  21,  1803. 

[Reported  in  3  East,  585.] 

In  trover  for  a  cargo  of  timber  of  the  value  of  above  £800  ;  it  appeared 
in  evidence  at  the  trial  before  Lord  Ellenborough,  C.  J.,  at  the  sittings 
in  London  after  last  term,  that  the  plaintiff,  a  merchant  at  Liverpool, 
gave  an  order  for  the  timber  to  Schumann  &  Co.,  merchants,  residing 
at  Memel  ;  in  pursuance  of  which  Schumann  &  Co.  informed  the  plain- 
tiff by  letter  of  the  1st  of  May,  1802,  that  they  had  chartered  on  his 
account  the  ship  "  Esther,''  Captain  Rose,  of  Liverpool  ;  and  on  the  loth 
of  May  they  wrote  him  another  letter,  enclosing  him  the  bill  of  lading 
and  invoice  of  the  timber  after  mentioned,  and  saying  that  they  had 
sent  the  charter-party  in  a  letter  which  Captain  Rose  would  deliver, 
and  advising  the  plaintiff  further  that  they  had  drawn  on  him  certain 
bills  at  three  months  for  the  value  of  the  timber.  The  invoice  enclosed 
was  of  this  tenor  :  — 

Mi: mi: i..  4th  May.  1S02. 

Invoice  of  a  cargo  of  timber  shipped  by  order  and  for  account  and 
risk  of  Mr.  T.  Walley  at  Liverpool,  in  the  "  Esther,"  Captain  Rose. 


214  WALLEY    V.    MONTGOMERY.  [CHAP.  II. 

And  the  bill  of  lading  was  dated  14th  of  May,  1802,  and  mentioned 
the  shipping  of  the  caigo  in  the  usual  form:  "to  be  delivered   unto 
order  or  assigns,  he  or  they  paying  freight  for  the  said  goods  according 
to  charter-party  ;"  which  was  signed  by  Rose,  the  captain,  and  indorsed 
in  blank  by  Schumann   &  Co.     The  charter-party,  though  produced, 
could  not  be  proved  at  the  trial  for  want  of  the  subscribing  witness. 
Schumann  &  Co.  sent  another  bill  of  lading  of  the  timber  to  the  defend- 
ant at  the  same  time,  who  appeared  from  the  circumstances  to  have 
acted  as  their  agent,  though  he  did  not  avow  himself  to  be  acting  in 
that  character  at  the  time  ;  by  virtue  of  which  bill  of  lading  the  defend- 
ant obtained  the  delivery  of  the  timber  from  the  captain  before  the 
plaintiff  was  apprised  of  the  circumstance,  or  had  made  any  demand 
of  the  same  under  his  own  bill  of  lading  ;  but  on  the  21st  of  June,  two 
days  after  the  arrival  of  the  timber,  finding  that  the  defendant  had  ob- 
tained possession  of  it,  he  applied  to  him,  offering  to  accept  the  bills 
drawn  on  him  by  Schumann  &  Co.  and  demanding  the  timber,  which 
the  defendant  refused,  unless  the  plaintiff  would  pay  for  it  immediately. 
The  plaintiff,  however,  declined  such  a  mode  of  payment,  insisting  on 
the  mode  stipulated  for  by  Schumann  &  Co.  in  their  letter  to  him,  by 
giving  his  acceptances  at  three  months;  in  consequence  of  which  the 
defendant  retained  possession,  and  afterwards  sold  the  cargo  under  the 
authority  of  Schumann    &   Co.      Upon   the   refusal  of  the  defendant, 
the  plaintiff  demanded  the  cargo  from  the  captain,  telling  him  that  he 
was  readv  to  perform  his  part  of  the  contract ;  but  the  captain  said  that 
he  had  before  delivered  it  to  the  defendant,  conceiving  that  he  acted  by 
the  authority  of  the  shippers:   but  there  was  no  proof  of  any  tender  of 
the  freight  having  been  made  to  the  captain,  for  want  of  which  the  plain- 
tiff was  nonsuited. 

Gibbs  and  Park  showed  cause  against  a  rule  for  setting  aside  the 
nonsuit  and  granting  a  new  trial. 

Erskine,  Garrow,  and  Scarlett,  contra. 

Lord  Ellenborough,  C.  J.  If  it  were  not  for  one  piece  of  evidence 
which  was  mentioned  late  in  the  cause,  and  to  which  my  attention  was 
not  before  particularly  directed,  I  should  still  be  inclined  to  think  that 
the  plaintiff  was  not  entitled  to  recover;  and  that  is  the  invoice,  by 
which  it  appears  that  the  goods  were  shipped  for  account  and  at  the 
risk  of  the  plaintiff:  that  is  a  material  piece  of  evidence  on  a  question, 
in  whom  was  the  property  of  the  goods  at  the  time  of  their  arrival 
here  ;  whether  then  vested  in  the  plaintiff,  subject  to  a  defeasance  in 
case  of  the  non-performance  by  him  of  certain  conditions  on  which  the 
consignment  was  made,  or  whether  to  vest  in  him  nt  a  subsequent  time 
on  performance  of  those  conditions?  Laying  the  invoice  out  of  the 
question,  1  should  still  have  been  of  the  same  opinion  as  before  upon 
the  letter  of  advice  and  the  bill  of  lading,  that  they  were  conditional. 
Two  things  were  required  of  the  plaintiff  to  be  done:  first,  the  accept- 
ance of  the  bills  drawn  on  him  at  three  months,  which  having  been 
tendered  to  be  performed  on  his  part  must  be  taken  as  done  ;  secondly, 


SECT.  VI.]  OGLE   V.    ATKINSON.  215 

the  payment  of  the  freight,  which  was  neither  made  nor  tendered.  I 
will  nut  consider  whether  the  defendant  were  the  agent  of  Schumann 
&  Co.  :  for  whether  so  or  not.  he  cannot  he  considered  as  a  wrong-doer 
if  he  have  obtained  possession  of  the  cargo  under  a  competent  hill  of 
lading  and  upon  a  performance  of  the  conditions,  which  the  plaintiff 
neglected  to  perform.  If,  having  no  notice  of  a  better  title,  he  were 
not  a  wrong-doer  when  he  received  the  goods,  and  he  has  paid  the 
freight  and  performed  the  conditions  required  of  him,  the  goods  cannot 
he  taken  out  of  his  hands  without  paving  those  charges.  But  taking 
him  to  he  the  agent  of  Schumann  &  Co.  ami  bound  by  their  engagement, 
yet  lie  had  a  right  in  their  name  to  stipulate  for  the  performance  of  the 
two  conditions  on  which  the  shipment  and  delivery  of  the  goods  were 
to  be  made  to  the  plaintiff,  namely,  the  acceptance  of  the  bills,  and  the 
payment  of  the  freight.  And  though  the  defendant  cannot  object  to  the 
non-acceptance  of  the  bills  which  was  offered  to  be  done  by  the  plaintiff, 
yet  he  may  make  his  stand  in  point  of  law  on  the  non-performance  of 
the  other  condition,  without  which  the  plaintiff  could  not  be  entitled  to 
recover  if  the  question  rested  there.  But  here  I  think  the  invoice  vested 
the  property  in  the  plaintiff;  for  if  there  had  been  a  loss  at  sea,  that 
loss  must  have  been  borne  by  him.  Then  if  the  property  were  vested 
in  him,  subject  only  to  a  defeasance  if  he  did  not  perform  the  conditions 
required  of  him,  I  think  the  plaintiff  would  be  entitled  to  recover.  The 
doctrine  in  the  case  of  Lempriere  v.  Pasley  only  applies  to  the  case  of 
a  mere  wrong-doer  possessing  himself  of  the  goods  of  another  without 
authority,  and  paying  freight  for  them  :  but  without  the  invoice  in  this 
case  the  act  of  the  defendant  even  as  the  agent  of  Schumann  &  Co. 
would  not  have  been  tortious,  the  plaintiff  not  having  performed  the 
conditions  required  by  the  letter  of  advice  and  the  bill  of  lading:  the 
invoice,  however,  vested  the  property  in  him. 

Hide  absolutt.1 


OGLE   v.    ATKINSON    and   Another. 
In  the  Common  Pleas,  November  15,  1814. 

[Reported  in  5  Taunton,  759.] 

Trover  for  a  quantity  of  hemp  and  flax.  The  cause  was  tried  before 
Mansfield,  C.  J.,  at  the  sittings  after  Michaelmas  term,  1813.  and  a 
verdict  was  found  for  the  plaintiff,  subject  to  a  case.  In  1809.  the  plain- 
tiff consigned  wines  to  Smidt  &  Co.  at  Riga,  for  sale  on  his  account, 
and  next  year  ordered  them  to  purchase  for  him  the  hemp  and  flax  in 
question.  In  April,  1810,  the  plaintiff  sent  his  own  ship,  the  Bremen 
packet,  to  receive  the  goods  so  ordered.  On  her  arrival  at  Riga,  the 
captain  received  from  Smidt  &  Co.  the  goods  in  question,  with  others. 

1  Grose,  J.,  delivered  a  concurring  opinion,  and  Lawbence  and  Le  Blanc,  JJ., 
also  concurred. 


216  OGLE   V.    ATKINSON.  [CHAP.  II. 

on  behalf  of  the  plaintiff,  and  as  the  plaintiff's  own  goods,  which  Smidt 
&  Co.   stated   to  the  captain   that  they  were.     These  goods  not  fully 
loading  the  ship,  Smidt  &  Co.  procured  other  goods  to  be  shipped  on 
freight;  the  captain,  by  agreement  with  the  plaintiff  (his  owner),  was 
to  have  £15  per  cent  primage  upon  the  ship's  homeward  freight,  to  be 
estimated  as  well  upon  the  plaintiff's  own  goods  as  upon  those  which 
were  actually  to  pay  freight,  the  rate  of  which  last  was  £10  per  ton,  but 
Smidt  &  Co.  required  the  captain  to  estimate  the  freight  upon  the  goods 
received  for  the  plaintiff  at  £8  per  ton  only.     The  captain  objected  to 
this  distinction,  but  Smidt  &  Co.  insisted  that  his  owner  was  entitled, 
that  the  freight  upon  the  goods  belonging  to  the  plaintiff  should  not  be 
estimated  at  the  same  rate  which  the  other  goods  were  to  pay  ;  at  length 
the  captain  consented.     Before  the  ship  left  Riga,  Smidt  &  Co.  wrote  a 
letter  without  date  to  the  plaintiff,  apprising  him  of  having  shipped  the 
hemp  and  flax  in  question  by  the  Bremen  packet,  and  stating  that  they 
enclosed  the  bills  of  lading  and  invoices  of  that  shipment,  for  which  they 
debited  the  plaintiff's  account,  and  requested  that,  being  found  right, 
the  plaintiff  would  have  them  noted  in  conformity  therewith.     In  that 
letter  were  enclosed  four  invoices,  dated  18-30  June,  expressing  the  flax 
to  be  shipped  on  board  the  Bremen  packet,  for  the  account  and  the  risk 
of  the  plaintiff;  and  Smidt  &  Co.,  after  enumerating  all  the  charges  on 
the  cargo  and  ship,  therein  charged  to  the  plaintiff  a  commission  of  two 
and  a  half  per  cent  on  the  amount  of  the  goods  and  charges.     In  a  letter 
of  15-27  June,  they  promised  to  furnish  the  plaintiff  with  the  vouchers 
of  the  whole  shipment ;    and  in  another  mentioned  having  before  sent 
him  the  bill  of  lading  and  invoices  of  those  shipments,  performed  on  the 
plaintiff's  account  on  board  the  Bremen  packet,  and  the_y  annexed  the 
duplicate  of  the  vouchers.     After  the  captain  had  received  the  goods, 
he  was  requested  by  Smidt  &  Co.  to  sign  a  bill  of  lading  for  them,  de- 
liverable to or  his  order,  for  which  he  was  to  receive  freight  at  the 

rates  therein  specified.  The  captain  objected  to  sign  the  bills  of  lading 
with  a  blank  for  the  name  of  the  consignee,  until  Smidt  &  Co.  assured 
him  that  was  of  no  consequence,  as  the  goods  were  to  be  delivered  to 
his  owner,  upon  which  he  signed  it.  The  first-mentioned  letter  to  the 
plaintiff,  which  contained  the  invoices  and  bill  of  lading,  was  sent  by 
Smidt  &  Co.  to  Lehr,  their  agent  in  this  country,  in  a  letter  dated  Riga, 
4-16  June,  wherein  they  stated  respecting  the  Bremen  packet,  that  they 
should  make  out  Ogle's  lulls  of  lading  to  order,  that  in  case  of  his  not 
accepting  the  drafts,  Ruckers  might  become  possessors  of  the  bills  of 
lading  ;  and  after  stating  the  amount  of  the  goods  loaded  for  the  plain- 
tiff, and  charges,  and  that  there  would  be  very  little  of  the  proceeds  of 
his  wines  remaining  at  his  disposal,  they  added  that  they  drew  on  him 
only  £2,500,  which  hills  they  remitted  to  Messrs.  Ruckers.  They  con- 
ceived that  sum  to  be  the  balance  due  to  them,  which  the  plaintiff  dis- 
puted. In  a  letter  2-14  July,  Smidt  &  Co.  instructed  Lehr  to  take  the 
necessary  measure,  that  in  case  Smidt  &  Co.'s  drafts  of  £1,300  and 
£1,200  at  three  months,  drawn  on  the  4-16  June,  were  not  accepted,  he 


SECT.  VI.]  OGLE   V.    ATKINSON.  217 

should  otherwise  dispose  of  the  lulls  of  lading  lie  had  in  hand,  ami  let 
Messrs.  Ruckers  receive  the  goods  and  dispose  of  them.  Lehr,  in  pur- 
suance of  these  instructions,  called  upon  the  plaintiff  before  the  ship 
arrived,  and  delivered  to  him  the  letter  enclosing  the  four  invoices,  and 
stated  that  Smidt  &  Co.  had  drawn  two  bills  upon  him,  the  one  for 
£1.200,  the  other  for  £1,300,  which  were  in  the  hands  of  .Messrs.  Ruck- 
ers, and  requested  the  plaintiff  would  accept  them  ;  the  plaintiff  refused, 
and  Lehr  in  consequence  indorsed  the  bill  of  lading  to  Messrs.  Ruck 
On  the  ship's  arrival  in  England,  before  any  of  the  goods  had  been 
livered  to  the  plaintiff,  Messrs.  Ruckers  claimed  the  goods  as  indorsi  - 
of  the  bill  of  lading,  but  the  captain  refused  to  deliver  to  them,  and  de- 
livered the  goods  to  the  plaintiff,  who  deposited  them  with  the  defend- 
ants as  warehouse-keepers  on  his  account,  lie  had  since  demanded 
them  hack  from  the  defendants,  and  tendered  them  the  amount  of  tin  ii 
charges,  but  they  had  refused  to  deliver  them.  There  was  no  tender  of 
any  freight  for  the  goods.  Smidt  &  Co.  were  alien  enemies  at  the  time 
of  the  shipment  and  trial.  The  plaintiff  had  obtained  a  license  from 
the  crown  to  import  these  goods,  upon  which  license  Smidt  &  Co.  had, 
before  the  ship  left  Riga,  indorsed  that  the  goods  were  shipped  on  Brit- 
ish account.  If  the  plaintiff  were  not  entitled  to  recover  the  value  of 
the  goods  so  deposited  with  the  defendants,  a  nonsuit  was  to  be  entered. 

Vauffhan,  Serjt.,  for  the  plaintiff. 

Zens,  Serjt.,  for  the  defendant. 

Gibbs,  C.  J.     This  is  an  action  by  Ogle  against  Atkinson,  into  whose 
hands  Ogle  had  delivered  goods,  brought  for  the  purpose  of  recovering 
from  them  the  value  of  the  goods,  which  they  refuse  to  re-deliver,  insist- 
ing that  the  property  of  the  goods  is  in  Smidt  &  Co.,  from  whom  they 
have  had   notice  to  detain  them.      There  are   two  preliminary    points 
made  by  tiie  plaintiff:   first,  that  the  defendants  cannot  refuse  to  deliv   r 
up  the  goods  to  the  plaintiff  from  whom  they  received  them  ;   but.  if  the 
property  is  in  others,  I  think  they  may  set  up  this  defence.      Secondly, 
it  is  said,  Ogle  has  a  lien  for  freight;   he  might  have  had  such  a  lien, 
but  if  he  wrongfully  gets  the  goods  into  his  hands  on  a  claim  of  prop- 
erty, he  cannot  afterwards  set  up  a  lien  for  freight.     This  brings  us  to 
the  true  question,  which  is,  in  whom  the  property  is  vested.      It  is  true 
that  the  goods  might  have  been  delivered  aboard  the  ship  on  the  terms 
on  which  the  defendant  contends  they  were  delivered  ;  and  if  they  had 
been,  no  doubt  the  plaintiff  could  not  have  obtained  the  goods,  with 
accepting  the  bills  ;   but  were  they  so  delivered?     Smidt  &  Co..  in  tii 
letter  to  Ogle,  never  make  mention  of  any  bills  to  be  accepted  by  Ogl 
No  doubt,   a  delivery  on  board  this  ship  was  an   absolute  delivery 
Ogle,  unless  qualified.     Does  the  case,  therefore,  state  any  such  quali- 
fication?    The  case  states  that  the  captain  received  them  as  the  plain- 
tiff's own  goods,  which  means  his  own  goods  absolutely;  not  with  any 
qualification;   and  Smidt  &  Co.  represent  them  to  the  captain  to 
goods  of  Ogle,  and  as  such  they  are  delivered.     If  Smidt  &  Co.  had  said, 
We  deliver  the  goods  to  you,  to  be  the  goods  of  Ogle  if  he  accepts  c 


218  WILMSHUEST  V.    BOWKER.  [CHAP.  II. 

tain  bills,  the  defence  would  avail ;  but  no  such  thing  passes.  I  cannot 
annex  to  this  delivery  the  qualification  that  they  are  to  be  the  plaintiff's 
own  goods  if  he  does  certain  things.  The  captain,  then,  receives  them 
as  Ogle"s  absolutely.  Is  this  state  altered?  The  goods  go  on  board; 
bills  of  lading  are  tendered  to  the  captain  to  sign  in  blank  ;  the  captain 
objects.  According  to  the  defendant's  argument,  the  answer  should 
have  been,  I  leave  the  bills  in  blank,  because  it  is  as  yet  uncertain  to 
whom  the  bills  may  lie  deliverable,  for  that  the  cargo  is  to  go  to  Rucker, 
unless  the  plaintiff  accepts  certain  bills  ;  but  the  answer  given  is,  The 
blank  in  the  bill  is  immaterial,  for  the  goods  are  at  all  events  to  be  de- 
livered to  your  owner.  If  the  blank  was  immaterial,  it  imported  no 
alteration  in  the  terms  of  the  delivery  ;  if  it  was  material,  a  fraud  was 
practised  on  the  captain,  which  cannot  avail  the  consignors.  I  there- 
fore think  that  the  property  of  the  goods  entirely  vested  in  the  plaintiff, 
and  that  the  subsequent  acts  of  the  consignors  and  their  agents  cannot 
prevent  him   from  recovering  against  the  defendants  ;    the  judgment 

therefore  must  be  for  the  plaintiff. 

Judgment  for  the  plaintiff.1 


WILMSHURST  and   Another  v.  BOWKER  and  Another. 
In  the  Common  Pleas,  May  8,  1841. 

[Reported  in  2  Manning  &,-  Granger,  792.] 

In  the  Exchequer  Chamber,  February  3,  1844. 

[Reported  in  7  Manning  $  Granger,  882.] 

Case.  The  first  count  stated  in  substance  that,  on  the  25th  October, 
1836,  the  plaintiffs  bargained  with  the  defendants  to  buy  of  them,  and 
the  defendants  sold  to  the  plaintiffs,  500  quarters  of  wheat  at  51s.  per 
quarter  ;  that  on  the  27th  of  said  October,  the  defendants,  by  order  of 
the  plaintiffs,  caused  said  wheat  to  be  shipped  on  board  of  a  certain 
vessel  then  lying  at  the  port  of  Lynn,  in  the  county  of  Norfolk,  to  wit, 
a  vessel  called  the  "  Kamsgate,"  of  which  one  Lightowler  was  then  master, 
to  be  carried  from  said  Lynn  to  Maidstone,  in  the  county  of  Kent,  for 
the  account  and  at  the  risk  of  the  plaintiffs,  and  there  to  be  delivered 
to  the  plaintiffs  ;  and  the  defendants  then  parted  with  the  possession 
of  the  said  wheat,  and  delivered  the  same  out  of  their  possession  to 
the  said  Lightowler,  in  and  on  board  of  the  said  vessel;  and  the  said 
Lightowler  then  received  the  said  wheat,  and  had  possession  of  the 
same,  for  the  purposes  aforesaid.  That  afterwards,  on  the  said  27th  of 
October,  the  said  Lightowler  executed  and  delivered  to  the  defendants 
a  bill  of  lading,  whereby  he  undertook,  on  the  arrival  of  said  vessel  at 
Maidstone,  to  deliver  the  said  wheat  to  the  order  of  the  defendants; 

I  Heath,  Chambbe,  and  Dallas,  J.J.,  delivered  brief  concurring  upinious. 


SECT.  VI.]  WILMSHURST   V.    BOWKER.  219 

and  the  defendants  made  out  an  invoice  of  said  wheat,  stating  the 
same  to  be  shipped  by  order  and  for  the  account  and  risk  of  the  plain- 
tiffs, and  wrote  a  letter  to  the  plaintiffs,  requesting  them  to  add  to  said 
invoice  the  charge  for  insuring  said  wheat,  and  remit  the  amount  to 
the  defendants  in  due  course ;  and  thereupon  the  defendants  enclosed 
said  invoice  and  bill  of  lading  (having  indorsed  the  latter  to  the  plain- 
tiffs) in  said  letter,  and  sent  said  letter,  invoice,  and  bill  of  lading  to  the 
plaintiffs,  and  the  plaintiffs  afterwards,  on  the  said  27th  of  October. 
received  the  same,  and  then  became  and  were,  and  thence  hitherto  had 
been  and  still  were,  the  owners  thereof  respectively;  of  all  which  the 
defendants  had  notice.  Breach  :  That  afterwards,  on  the  said  27th  of 
October,  the  plaintiffs  then  being  the  holders  of  the  said  bill  of  lading, 
and  not  being  bankrupts  or  insolvents,  but  being  then  lawfully  entitled 
to  have  the  said  wheat  delivered  by  the  said  Lightowler  to  them  tin; 
plaintiffs,  the  defendants,  well  knowing  the  premises,  but  contriving 
and  intending  to  injure  and  defraud  the  plaintiffs,  did  not  nor  would 
suffer  or  permit  the  said  wheat  to  be  delivered  to  the  plaintiffs,  hut 
wrongfully  and  injuriously,  without  the  license  or  consent,  and  against 
the  will  of  the  plaintiffs,  revoked  and  rescinded  the  said  sale  of  the 
saiil  wheat  to  the  plaintiffs,  and  caused  and  procured  the  said  wheat 
to  be  stopped  in  its  passage  to  the  plaintiffs,  and  forthwith  upon  such 
stoppage,  and  without  the  plaintiffs  having  notice  thereof  or  of  their 
intention  so  to  do,  hindered  and  prevented  the  same  from  being  deliv- 
ered to  the  plaintiffs  :  per  quod,  &c,  laving  special  damages. 

Pleas  :  first,  not  guilty.  Secondly,  that  the  plaintiffs  did  not  bar- 
gain with  the  defendants  to  buy  of  them,  nor  did  the  defendants  sell 
to  the  plaintiffs  the  said  wheat  in  the  declaration  mentioned,  at  the 
said  price  in  that  behalf  therein  mentioned,  in  manner  and  form  as  the 
plaintiffs  had  in  the  first  count  of  the  declaration  alleged;  concluding 
to  the  country. 

Thirdly,  that  upon  the  said  25th  of  October.  1836,  in  the  first  count 
mentioned,  the  plaintiff's  bargained  with  the  defendants  to  buy,  and 
the  defendants  then  sold  to  the  plaintiffs,  the  said  quantities  of  wheat 
in  the  said  first  count  mentioned,  at  and  for  the  price  in  that  behalf  in 
the  said  first  count  alleged,  upon  the  terms  and  conditions  for  the  pay- 
ment thereof  as  follows:  (that  is  to  say)  that  the  payment  thereof 
should  be  made  by  bankers'  draft  on  London  at  two  months'  date,  to 
be  remitted  by  the  plaintiffs  to  the  defendants  upon  receipt  by  the 
plaintiffs  of  the  invoice  and  bill  of  lading,  and  the  defendants  then 
caused  the  said  wheat  to  be  shipped  on  board  of  the  said  ship  or  vessel, 
and  the  possession  thereof  to  he  delivered  to  the  said  master  and  com- 
mander in  pursuance  of  the  said  bargain,  to  lie  by  him  carried  to  Maid- 
stone in  the  county  of  Kent,  and  to  be  then  delivered  to  the  plaintiffs 
according  to  the  said  agreement,  and  the  terms  mid  conditions  thereof; 
that  the  plaintiffs  upon  the  day  and  year  in  that  behalf  in  the  said  first 
^count  alleged,  and  before  the  committing  of  the  said  supposed  griev- 
ance in   that  count  mentioned,   received  the  said  invoice  and  bill  of 


220  WILMSHURST   V.    BOWKER.  [CHAP.  II. 

lading,  as  in  the  said  declaration  alleged,  but  that  the  plaintiffs  did  not 
nor  would,  upon  the  receipt  of  the  said  invoice  and  bill  of  lading,  re- 
mit or  tender,  or  offer  to  remit  to  the  defendants  any  bankers'  draft  on 
London  for  the  payment  of  the  price  of  the  said  wheat,  but,  on  receipt 
of  the  said  invoice  and  bill  of  lading,  wholly  failed  and  neglected  so  to 
do,  contrary  to  their  agreement  in  that  behalf  as  aforesaid  ;  whereupon 
the  defendants  caused  and  procured  the  wheat  to  be  stopped,  and  then 
hindered  and  prevented  the  same  from  being  delivered  to  the  plain- 
tiffs, as  they  lawfully  might  for  the  cause  aforesaid.     Verification. 

The  plaintiffs  joined  issue  on  the  first  and  second  pleas,  and  replied 
il    injuria  to  the  third. 

At  the  trial  of  the  cause  before  Maule,  J.,  at  the  adjourned  sittings 
in  London,  after  last  Michaelmas  term,  1839,  the  plaintiffs'  counsel 
opened  the  following  as  the  facts  of  the  case.  The  plaintiffs  are  corn- 
merchants  at  Cranbrook  in  Kent,  carrying  on  business  under  the  firm 
of  John  Wilmshurst  &  Son  :  and  are  also  partners  in  a  banking-house 
there  under  the  firm  of  Wilmshurst,  Hague,  &  Co.  The  defendants 
are  corn-merchants  at  Lynn,  in  the  county  of  Norfolk.  On  the  25th 
of  October,  1836,  the  defendants  contracted  to  sell  to  the  plaintiffs  a 
quantity  of  wheat  on  the  terms  mentioned  in  the  following  sold  note 
signed  by  the  defendants.  A  corresponding  bought  note  was,  at  the 
same  time,  signed  by  the  plaintiffs. 

"Sold,  the  25th  of  October,  183G,  to  Messrs.  John  Wilmshurst 
&  Son,  about  300  quarters  of  wheat,  as  per  sample,  at  51s.  per  quarter 
on  board.  Payment  by  bankers'  draft  on  London  at  two  months'  date, 
to  be  remitted  on  receipt  of  invoice  and  bill  of  lading." 

On  the  27th  of  October,  the  wheat,  which  consisted  of  310  quarters, 
was  shipped  on  board  of  a  vessel,  called  the  "  Ramsgate,"'  W.  Lightowler, 
master,  for  Maidstone,  deliverable  "  unto  order,  or  to  assigns,  he  or 
they  paying  freight,"  &c.  On  the  same  day  the  defendants,  in  pur- 
suance of  an  arrangement  to  that  effect  with  the  plaintiffs,  whereby 
the  defendants  were  to  charge  the  plaintiffs  with  the  premium  in  addi- 
tion to  the  cost  price  of  the  wheat,  gave  orders  to  their  agents  in 
London  to  effect  an  insurance  on  the  wheat,  and  to  hand  the  policy 
to  the  plaintiffs.  The  defendants  forwarded  to  the  plaintiffs  the  bill 
of  lading,  indorsed  in  blank,  and  an  invoice  of  the  wheat  in  a  letter, 
wherein  they  requested  the  plaintiffs  to  remit  to  them  the  amount  of 
the  invoice,  after  having  added  to  it  the  charges  for  insurance.  The 
wheat  was  described  in  the  invoice  "as  a  cargo  of  wheat  shipped 
on  board  the  <  Ramsgate.'  W.  Lightowler.  master,  for  Maidstone,  by 
order,  and  for  the  account  and  risk,  of  Messrs.  John  Wilmshurst  & 
Son."  On  the  29th,  the  plaintiffs  received  the  policy  of  insurance  on 
the  wheat  from  the  defendants'  agents,  with  an  account  of  the  charges 
thereon,  amounting  to  £5  12*.  \d.  On  the  30th,  the  plaintiffs  trans- 
mitted to  the  defendants  by  post  a  bill   for  £796  2a.   Id.   (being  the 


SECT.  VI.]  WILMSBLUBST   V.    BOWEEE.  221 

invoice  price  of  the  wheat  and  the  charges  for  insurance),  in  the  fol- 
lowing form  :  —  „v. 

/°    .      oo         Lynn,  October  27,  1836. 
£796  2s.  Id.  ^°  /  jf 

Two  months  after  date  pay  tg>  ou?  Qjfder  seven  hundred  and  ninety- 
six  pounds,  two  shillings,  an^on^pe^flny,  value  received. 

Messrs.  Wilmshurst  &  SbN^Ieirehants,  Cranbrook. 

By  return  of  post  on  the  1st  of  November  the  defendants  sent  back 
this  bill  to  the  plaintiffs,  inclosed  in  the  following  letter:  — 

"Gentlemen,  —  We  have  your  favor  of  the  30th  ult.,  inclosing  your 
acceptance,  which,  being  contrary  to  agreement,  we  return,  aud  have 
arranged  otherwise  for  the  disposal  of  the  cargo." 

On  the  3d  of  November,  YVilmshurst  the  son  wrote  the  following 
reply  :  — 

"  Gentlemen,  —  I  was  much  surprised  at  the  tenor  of  your  letter  this 
morning.  It  was  altogether  an  error  of  my  father's  in  sending  a  bill 
drawn  on  ns  as  merchants.  However,  we  now  send  you  a  bankers' 
acceptance,  and  trust  you  will  see  the  wheat  forwarded  immediately. 

In  this  letter  a  bill  was  enclosed  as  follows  :  — 

<?  <?'  Lynn,  October  27,  1836. 

£796  2s.   Id.  .4?  #<    ^ 

/      o**       f 

'1  wo  months  after  date  payjto  o^r  (gfder  seven  hundred  and  ninety- 
six  pounds,  two  shillings,  ai|^oge  pennjr,  value  received. 
Messrs.  YVilmshurst,  H^gu£,  <S?Co.,  Bankers,  Cranbrook. 

,/ 
By  the  same  post  the  younger  Wilmshurst  sent  a  second  letter  to  the 

defendants,  offering,  in  case  the  defendants  should  not  be  "  agreeable" 

to  take  the  bill  last  sent,  to  pay  cash  for  the  wheat,  less  the  discount. 

The  defendants,  considering  the  second  draft  not  to  be  a  compliance 

with   the  terms  of  the  contract,  returned  it  also  in  a  letter,  repeating 

that  the  caigo  was  otherwise  disposed  of. 

Immediately  after  they  returned  the  first  draft,  the  defendants  got 
the  wheat  back  from  Captain  Lightowler.  They  subsequently  sold  it  at 
56s.  a  quarter. 

Upon  this  statement  of  facts  the  learned  judge  observed  that  the 
third  plea  must  be  taken  as  proved,  and  that  the  only  question  was. 
whether  such  plea  would  be  an  answer  to  the  action  after  verdict. 
It  was  thereupon  agreed  that  a  verdict  should  be  entered  for  the  plain- 
tills  on  the  first  and  second  issues,  and  for  the  defendants  on  the  third, 
with  liberty  to  the  defendants,  in  the  event  of  the  plaintiffs  obtaining 
a  rule  for  judgment  non  obstante  veredicto  on  the  third  plea,  to  move 
that  the  verdict  might  be  entered  for  them  upon  the  second  issue,  on 
the   ground    of   the    misstatement  of   the   contract   in    the   declaration 


222  WILMSHURST   V.    BOWKER.  [CHAP.  II 

(the  omission  of  the  stipulation  as  to  the  terms  of  payment),  the  court 
to  have  the  same  power  of  amendment  as  the  judge  at  nisi  prius. 

The  damages  were  assessed  contingently  at  £77. 

Greenwood  now  showed  cause. 

Butt  in  support  of  the  rule.  Cur.  adv.  vult. 

Tindal,  C.  J.,  now  delivered  the  judgment  of  the  court.  .  .  .  The 
question  is,  whether  after  the  sale  of  the  wheat  to  the  plaintiffs,  and 
such  constructive  delivery  thereof  to  them  as  is  stated  in  the  declara- 
tion, the  defendants  were  justified  in  stopping  the  wheat  in  transitu, 
upon  the  ground  set  forth  in  the  plea. 

That  the  defendants  cannot  justify  the  stoppage  of  this  wheat  in 
transitu,  upon  the  ordinary  ground  on  which  such  right  is  exercised, 
may  be  readily  admitted.  The  ordinary  right  of  countermanding  the 
actual  delivery  of  goods  shipped  to  a  consignee,  is  limited  to  the  cases 
in  which  the  bankruptcy  or  insolvency  of  the  consignee  has  taken  place. 
The  law  as  to  this  point  is  very  clearly  laid  down  by  Lord  Stowell, 
in  the  case  of  The  Constantia,  G  Rob.  Adm.  Rep.  321,  and  in  many 
cases  in  the  common  law  reports  (vide  2  N.  &  M.  644)  ;  and  as,  in  the 
present  case,  the  first  count  directly  alleges  that  the  plaintiffs  were 
neither  bankrupt  nor  insolvent  at  the  time  when  the  stoppage  took 
place,  and  as  no  traverse  is  taken  upon  this  allegation,  it  must  be  taken 
that  the  common  ground  of  stopping  in  transitu  is  wanting  in  the 
present  case.  But  the  question  in  this  case  is,  whether,  under  the  par- 
ticular terms  of  this  contract,  the  consignors  have  not  reserved  to  them- 
selves the  power  of  withholding  the  actual  delivery  of  the  wheat,  until 
the  consignees  should  comply  with  the  mode  of  payment  stipulated  by 
the  contract.  There  is  no  doubt  that  the  property  in  the  wheat  passed 
to  the  plaintiffs  under  the  contract,  upon  which  point  much  of  the 
argument  before  us  has  turned  ;  but  the  question  is  as  to  the  intention 
of  the  parties,  as  evidenced  by  the  contract,  with  reference  to  the  deliv- 
ery of  possession.  And  we  are  of  opinion  that  the  intention  of  the 
parties,  under  this  contract,  was,  that  the  consignors  should  retain  the 
power  of  withholding  the  actual  delivery  of  the  wheat,  in  case  the  con- 
signees failed  in  remitting  the  bankers1  draft,  not  upon  the  delivery  of 
the  wheat,  but  on  the  receipt  of  the  bill  of  lading,  which,  in  the  ordi- 
nary course  of  business  would  precede  the  arrival  or  delivery  of  the 
wheat.  And  we  think  the  object  of  making  the  receiving  of  the  invoice 
:n id  bill  of  lading  and  the  remitting  of  the  bankers'  draft  to  be  simul- 
taneous  or  concurrent  acts  could  have  been  no  other  than  to  afford 
security  to  the  consignors,  so  that  in  case  the  consignees  failed  in  the 
performance  of  the  latter  stipulation,  the  consignors  might  withhold 
the  actual  delivery  of  the  cargo.  When  goods  are  sold,  and  nothing  is 
3aid  about  the  time  of  delivery  or  the  time  of  payment,  the  seller 
is  bound  to  deliver  them  whenever  they  are  demanded  on  payment  of 
the  price;  "  but  the  buyer,"  as  is  observed  by  Mr.  Justice  Bayley  in 
Bloxam   v.  Sanders,  1   B.   &  C.  948,  7   D.  &  R.  405,  "has  no  right 


SECT.  VI.]  WILMSHUKST   V.    BOWKEK.  223 

to  have  the  possession  of  the  goods  until  he  pays  the  price."  In  the 
present  case,  it  is  part  of  the  stipulation  that  something  shall  be  done 
by  the  buyer  before  the  time  when,  in  the  usual  course  of  business,  the 
goods  can  be  actually  delivered  ;  namely,  upon  the  handing  over  of 
the  bill  of  lading  to  the  buyers,  which  ordinarily  precedes  the  arrival 
of  the  ship;  so  that  the  right  to  the  possession  of  the  goods  could  not 
vest  until  the  buyers  either  remitted,  or  tendered,  or  offered  to  remit 
the  bankers'  draft  in  payment.  And  we  think  this  view  of  the  case  not 
inconsistent  with  the  judgment  of  the  court  in  Walley  v.  Montgomery, 
3  East,  585  ;  in  which,  although  it  was  held  that  the  consignors  had  no 
right  to  stop  in  transitu,  it  is  to  be  observed,  that  the  consignees  had 
never  refused  to  accept  the  bills  which  had  been  drawn  on  them  for  the 
price  of  the  timber,  but,  on  the  contrary,  were  ready  and  offered  so  to 
do;  nor,  indeed,  does  it  appear  in  that  case  to  have  been  a  condition 
that  the  bills  should  be  accepted  at  any  certain  time  before  the  actual 
delivery.  In  the  present  case  we  hold  that  upon  the  proper  construc- 
tion of  the  plea,  the  contract  of  sale  entered  into  between  the  parties 
was  conditional  as  to  the  right  of  possession  of  the  cargo  ;  and  that  the 
condition  not  having  been  performed  on  the  part  of  the  plaintiffs,  the 
consignees,  the  defendants,  the  consignors,  were  justified  in  preventing 
the  wheat  from  being  delivered.  Rule  discharged. 

The  plaintiffs  brought  a  writ  of  error  upon  the  foregoing  judgment, 
and  assigned  errors  which  were  argued  in  the  Exchequer  Chamber 
before  Lord  Abinger,  C.  B.,  Parke,  B.,  Patteson,  J.,  Alderson,  B., 
Coleridge,  J.,  Rolfe,  B.,  Wigiitman,  J. 

M.  I).  Hill  (with  whom  was  Btttt),  for  the  plaintiffs. 

Greemvood,  for  the  defendants. 

Lord  Abinger,  C.  B.  We  are  quite  unanimous;  and,  however 
reluctant  we  may  be  to  overturn  a  considered  judgment  of  the  Court 
of  Common  Pleas,  we  find  ourselves  unable  to  come  to  any  other  con- 
clusion than  that  the  plaintiffs  are  entitled  to  recover.  We  accede  to 
the  general  principle  laid  down  by  the  court  below  ;  and  if  the  facts 
had  been  before  a  jury,  we  are  not  prepared  to  say  that  they  might  not 
have  drawn  the  inference  that  the  remitting  of  a  banker's  draft  was  a 
condition  precedent  to  the  vesting  of  the  property  in  the  wheat  in  the 
plaintiffs.  But  we  draw  no  such  inference  from  what  appears  upon  the 
record.  The  delivery  of  the  bill  of  lading  and  the  remitting  the  banker's 
draft  could  not  be  simultaneous  acts  ;  the  plaintiffs  must  have  received 
the  bill  of  lading  and  invoice  before  they  could  send  the  draft.  The 
default  on  the  part  of  the  plaintiffs  amounts  to  no  more  than  this,  that 
the}-  have  omitted  to  perform  one  part  of  their  contract. 

Alderson,  B.  It  is  quite  consistent  with  the  decision  of  the  Court 
of  Common  Pleas  that  the  remitting  the  banker's  draft  was  a  condition 
subsequent.  Judgment  reversed. 


224  WAIT   V.   BAKER.  [CHAP.  II. 


WAIT  and  Another  v.  BAKER. 
In  the  Exchequer,  February  5  &  7,   1848. 

[Re/>orted  in  2  Exchequer  Rejiurts,  I.] 

Trover  for  500  quarters  of  barley.  Pleas,  not  guilty,  and  not  pos- 
sessed ;  upon  which  issue  was  joined. 

At  the  trial,  before  Williams,  J.,  at  the  last  spring  assizes  for  Somer- 
setshire, the  following  facts  appeared  :  The  defendant,  a  corn-factor  :it 
Bristol,  had  occasional  dealings  with  a  person  of  the  name  of  Leth- 
bridge,  who  was  also  a  corn-factor  at  Plymouth,  and  on  the  5th  of 
December,  1846,  wrote  to  him  the  following  letter:  — 

"I  hear  that  the  crop  of  barley  in  the  south  of  Hampshire  is  good 
this  year,  and  that  at  Kingsbridge  the  price  is  low,  compared  with  the 
markets  further  eastward.  If  you  are  doing  anything  in  the  article  this 
season,  and  can  make  me  an  offer  of  a  cargo,  I  have  no  doubt  but  we 
may  have  a  transaction  Let  me  hear  from  you  in  due  course.  Send 
me  sample  in  letter,  describing  weight,  &c." 

To  which  Lethbridge  wrote  the  following  answer  on  the  9th  of  that 
month :  — 

"  I  beg  to  inform  you  that  I  have  not  yet  commenced  buying  barley 
in  Kingsbridge  market,  farmers  there  standing  out  for  10s.  a  bag. 
After  Saturday's  market  I  will  send  you  a  sample  and  an  offer,  if 
possible." 

On  the  14th  Lethbridge  wrote  the  following  letter  to  the  defendant: 

"  1  herewith  hand  you  samples  of  common  and  chevalier  barley  of  the 
neighborhood  of  Kingsbridge,  and  will  engage  to  sell  you  from  400  to 
500  quarters  f.  o.  b.  barley  at  Kingsbridge,  or  neighboring  port,  at  40.s. 
per  quarter  common,  and  42.s.  per  quarter  chevalier,  in  equal  quantities, 
for  cash,  on  handing  bills  of  lading,  or  acceptance  at  two  months'  date, 
adding  interest  at  the  rate  of  £5  per  cent  per  annum,  subject  to  your 
reply  by  course  of  post." 

On  the  16th,  the  defendant  returned  the  following  reply:  - 

"  I  beg  to  accept  your  offer  of  250  quarters  of  chevalier  barley,  at 
128.  per  quarter,  and  250  quarters  common,  at  40s.  per  quarter  f.  o.  b, 
lor  cash  payments,  on  receipt  of  bill  of  lading  and  invoice,  or  acceptance 
at  two  months'  date,  adding  interest  at  the  rate  of  £5  per  cent  per 
annum,  subject  to  your  reply  by  course  of  post." 

On  the  18th,  Lethbridge  wrote  the  defendant  as  follows:  — 

"Your  favor  of  the  16th  came  duly  to  hand,  and  note  by  it  3'our 
acceptance  of  my  offer  of  barley.     I  suppose  I  am  to  take  up  a  vessel  at 


SECT.  VI.]  WAIT   V.    BAKER.  225 

the  best  possible  freight  I  can  get  her  for.     Please  instruct  me  in  this, 
and  say  if  for  Bristol  or  any  other  port." 

On  the  19th  the  defendant  wrote  in  answer:  — 

"  I  took  it  for  granted  that  you  would  get  a  vessel  for  the  barley  I 
have  bought  of  you  f.  o.  b.,  and  therefore  did  not  instruct  you  to  seek 
one.  I  trust  that  you  will  be  particular  to  select  a  good  ship,  and  at 
the  lowest  possible  freight,  for  this  port  ;  and,  above  all,  take  care  that 
the  quality  of  the  barley  is  fully  equal  to  sample.  A  party,  who  will 
take  part  of  it,  is  extremely  particular  in  these  matters  ;  and  the  sam- 
ples are  sealed  and  held  in  the  custody  of  a  third  party.  Please  to 
advise  when  you  have  taken  up  a  vessel,  with  particulars  of  the  port 
she  loads  in,  so  that  I  may  get  insurance  done  correctly." 

After  some  further  correspondence  respecting  the  amount  of  the 
freight,  Lethbridge  wrote  on  the  23d  to  the  defendant :  — 

"I  now  send  you  copy  of  charter-party  of  the  '  Emerald,'  which 
vessel  will  sail  for  the  port  of  loading  to-day  or  to-morrow,  and  I  will 
lose  no  time  in  getting  her  loaded." 

The  defendant,  by  letter  dated  the  24th,  acknowledged  the  receipt  of 
the  charter-party  (not  under  seal),  which  was  dated  on  the  22d,  and  was 
in  the  name  of  Lethbridge,  to  load  at  Dartmouth,  a  portion  to  be  filled 
up  at  Salcombe,  to  proceed  to  Bristol  or  any  other  port. 

On  the  28th.  Lethbridge  wrote  to  the  defendant :  — 

"  The  '  Emerald  '  will  commence  loading  to-day.  I  hope  to  hand  you 
bill  of  lading  in  the  course  of  the  week." 

And  again  on  the  1st  of  January,  1847  :  — 

"  I  hope  to  be  able  to  send  you  invoice  and  bill  of  lading  of  '  Eme- 
rald '  on  Tuesday  or  Wednesday." 

And  on  the  6th  of  January  he  wrote  to  the  defendant  as  follows  :  — 

"The  'Emerald'  is  nearly  loaded;  expect  the  bill  of  lading  to-day 
or  to-morrow.  I  expect  to  be  in  Exeter  on  Friday,  when  it  is  very 
likely  I  shall  run  down  and  see  }-ou." 

The  vessel  was  loaded  with  common  and  chevalier  barley  ;  and  on 
the  7th  of  January,  Lethbridge  received  from  the  master  the  bill 
of  lading  of  the  cargo,  which  was  therein  expressed  to  be  deliver- 
able at  Bristol  to  the  order  of  Lethbridge  or  assigns,  paying  the  freight 
as  per  charter.  On  the  8th,  Lethbridge  called  upon  the  defendant  at 
Bristol  early  in  the  morning,  and  left  at  his  counting-house  the  invoice 
and  an  unindorsed  bill  of  lading.  At  a  subsequent  part  of  the  day, 
Lethbridge  called  again  upon  the  defendant,  when  the  defendant  raised 
some  objections  to  the  quality  of  the  cargo,  and  asserted  that  it  was 

15 


226  WAIT   V.    BAKER.  [CHAP.  II. 

inferior  to  the  samples;  he  also  threatened  he  would  take  the  cargo, 
but  sue  Lethbridge  for  eight  shillings  a  quarter  difference.  After  some 
further  dispute  upon  the  matter,  the  defendant  offered  Lethbridge  the 
amount  of  the  cargo  in  money,  and  said  that  he  accepted  the  cargo. 
Lethbridge,  however,  refused  to  accept  the  money,  and  to  indorse  the 
bill  of  lading  to  the  defendant ;  but  took  the  bill  of  lading  from  the 
counter  and  immediately  proceeded  to  the  plaintiffs',  who  were  corn- 
factors,  and  had  a  house  of  business  in  the  neighborhood,  and 
indorsed  the  bill  of  lading  to  them,  and  received  an  advance  upon 
it.  The  market  at  that  time  had  risen  considerably.  The  tv  Emerald" 
arrived  on  the  16th,  and  on  the  18th  the  defendant  proceeded  on 
board  and  claimed  the  cargo  as  the  owner,  and  unshipped  1,240 
bushels  of  the  barley,  worth  £422  14s.  ;  but  the  plaintiffs,  coming 
on  board  during  the  time  the  cargo  was  being  unshipped,  presented 
the  bill  of  lading  and  obtained  the  rest  of  the  cargo,  and  paid  the 
captain  the  freight. 

The  jury  found  that  the  defendant  did  not  refuse  to  accept  the  barley 
from  Lethbridge  ;  that  the  tender  was  unconditional ;  and  that  Leth- 
bridge was  not  an  agent  intrusted  with  the  bill  of  lading  b}'  the 
defendant.  His  lordship  thereupon  directed  a  verdict  to  be  entered 
for  the  plaintiffs  for  £422  14s.,  reserving  leave  to  the  defendant  to  enter 
a  verdict  for  him. 

A.  rule  to  show  cause  having  been  obtained, 

Croioder,  Barstow,  and  Greenwood  appeared  to  show  cause,  but  were 
stopped  by  the  court,  who  called  upon 

Butt  and  Montague  Smith,  in  support  of  the  rule. 

Parke,  B.  I  am  of  opinion  that  the  rule  in  the  present  case  ought  to 
1)0  discharged.  It  is  perfectly  clear  that  the  original  contract  between 
the  parties  was  not  for  a  specific  chattel.  That  contract  would  be 
satisfied  by  the  delivery  of  any  500  quarters  of  corn,  provided  the 
corn  answered  the  character  of  that  which  was  agreed  to  be  delivered. 
By  the  original  contract,  therefore,  no  property  passed  ;  and  that  mat- 
ter admits  of  no  doubt  whatever.  In  order,  therefore,  to  deprive  the 
original  owner  of  the  property,  it  must  be  shown  in  this  form  of  action 
—  the  action  being  for  the  recovery  of  the  property  —  that,  at  some 
subsequent  time,  the  property  passed.  It  may  be  admitted,  that  if 
goods  are  ordered  Irv  a  person,  although  they,  are  to  be  selected  by  the 
vendor,  and  to  be  delivered  to  a  common  carrier  to  be  sent  to  the 
person  by  whom  they  have  been  ordered,  the  moment  the  goods,  which 
have  been  selected  in  pursuance  of  the  contract,  are  delivered  to  the 
carrier,  the  carrier  becomes  the  agent  of  the  vendee,  and  such  a  deliv- 
ery amounts  to  a  delivery  to  the  vendee  ;  and  if  there  is  a  binding 
contract  between  the  vendor  and  vendee,  either  by  note  in  writing,  or 
by  part  payment,  or  subsequently  by  part  acceptance,  then  there  is  no 
doubt  that  the  property  passes  by  such  delivery  to  the  carrier.  It  is 
necessary ,  of  course,  that  the  goods  should  agree  with  the  contract.  In 
this  case,  it  is  said  that  the  delivery  of  the  goods  on  shipboard  is  equiv- 


SECT.  VI.]  WAIT    V.    BAKER.  227 

alent  to  the  delivery  T  have  mentioned,  because  the  ship  was  engaged 
on  the  part  of  Lethbridge  as  agent  for  the  defendant.  But  assuming 
that  it  was  so,  the  delivery  of  the  goods  on  board  the  ship  was  not  a 
delivery  of  them  to  the  defendant,  but  a  delivery  to  the  captain  of  the 
vessel,  to  be  carried  under  a  bill  of  lading,  and  that  bill  of  lading  indi- 
cated the  person  for  whom  they  were  to  be  carried.  By  that  bill  of 
lading  the  goods  were  to  be  carried  b}*  the  master  of  the  vessel  for  and 
on  account  of  Lethbridge,  to  be  delivered  to  him  in  case  the  bill  of 
lading  should  not  be  assigned,  and  if  it  should,  then  to  the  assignee. 
The  goods,  therefore,  still  continued  in  the  possession  of  the  master  of 
the  vessel,  not  as  in  the  case  of  a  common  carrier,  but  as  a  person  car- 
rying them  on  behalf  of  Lethbridge.  There  is  no  breach  of  duty  on 
the  part  of  Lethbridge,  as  he  stipulates  under  the  original  contract  that 
the  price  is  to  be  paid  on  the  delivery  of  the  bill  of  lading.  It  is  clearly 
contemplated  by  the  original  contract,  that,  by  the  bill  of  lading,  Leth- 
bridge should  retain  control  over  the  property.  It  seems  to  me  to 
follow  that  the  delivery  of  the  500  quarters  to  the  captain,  to  be  deliv- 
ered to  Lethbridge,  is  not  the  same  as  a  delivery  of  500  quarters  to 
a  common  carrier  by  order  of  the  consignee.  The  act  of  delivery, 
therefore,  in  the  present  case,  did  not  pass  the  property.  Then,  what 
subsequent  act  do  we  find  which  had  that  effect?  It  is  admitted  by 
the  learned  counsel  for  the  defendant,  that  the  property  does  not  pass, 
unless  there  is  a  subsequent  appropriation  of  the  goods.  The  word 
appropriation  ma}'  be  understood  in  different  senses.  It  may  mean  a 
selection  on  the  part  of  the  vendor,  where  he  has  the  right  to  choose 
the  article  which  he  has  to  supply  in  performance  of  his  contract ;  and 
the  contract  will  show  when  the  word  is  used  in  that  sense.  Or  the 
word  may  mean  that  both  parties  have  agreed  that  a  certain  article 
shall  be  delivered  in  pursuance  of  the  contract,  and  yet  the  property 
may  not  pass  in  either  case.  For  the  purpose  of  illustrating  this  posi- 
tion, suppose  a  carriage  is  ordered  to  be  built  at  a  coachmaker's  ;  he 
may  make  any  one  he  pleases,  and,  if  it  agree  with  the  order,  the  party 
is  bound  to  accept  it.  Now  suppose  that,  at  some  period  subsequent 
to  the  order,  a  further  bargain  is  entered  into  between  this  party  and 
the  coach-builder,  by  which  it  is  agreed  that  a  particular  carriage  shall 
be  delivered.  It  would  depend  upon  circumstances  whether  the  prop- 
erty passes,  or  whether  merely  the  original  contract  is  altered  from  one 
which  would  have  been  satisfied  b}-  the  delivery  of  any  carriage  answer- 
ing the  terms  of  the  contract,  into  another  contract  to  supply  the  par- 
ticular carriage, —  which,  in  the  Roman  law  was  called  obligatio  certi 
corporis,  where  a  person  is  bound  to  deliver  a  particular  chattel,  but 
where  the  property  does  not  pass,  as  it  never  did  by  the  Roman  law, 
until  actual  delivery  ;  although  the  property  after  the  contract  remained 
at  the  risk  of  the  vendee,  and,  if  lost  without  any  fault  in  the  vendor, 
the  vendee,  and  not  the  vendor,  was  the  sufferer.  The  law  of  England 
is  different:  here  property  does  not  pass  until  there  is  a  bargain  with 
respect  to  a  specific  article,  and  everything  is  done  which,  according 


228  TURNER    V.    TRUSTEES.  [CHAP.  II. 

to  the  intention  of  the  parties  to  the  bargain,  was  necessary  to  transfer 
the  property  in  it.  "Appropriation"  may  also  be  used  in  another 
sense,  and  is  the  one  in  which  Mr.  Butt  uses  it  on  the  present  occasion  : 
riz.,  where  both  parties  agree  upon  the  specific  article  in  which  the 
property  is  to  pass,  and  nothing  remains  to  be  done  in  order  to  pass  it. 
It  is  contended  in  this  case  that  something  of  that  sort  subsequently 
took  place.  I  must  own  that  I  think  the  delivery  on  board  the  vessel 
could  not  be  an  appropriation  in  that  sense  of  the  word.  It  is  an  ap- 
propriation in  the  first  sense  of  the  word  only  ;  the  vendor  has  made 
his  election  to  deliver  those  500  quarters  of  corn.  The  next  question  _ 
is,  whether  the  circumstances  which  occurred  at  Bristol  afterwards 
amount  to  an  agreement  by  both  parties  that  the  property  in  those  500 
quarters  should  pass.  I  think  it  is  perfectly  clear  that  there  is  no  pre- 
tence for  saying  that  Lethbridge  agreed  that  the  property  in  that  corn 
should  pass.  It  is  clear  that  his  object  was  to  have  the  contract  repu- 
diated, and  thereby  to  free  himself  from  all  obligation  to  deliver  the 
cargo.  On  the  other  hand,  as  has  been  observed,  the  defendant  wished 
to  obtain  the  cargo,  and  also  to  have  the  power  of  bringing  an  action 
if  the  corn  did  not  agree  with  the  sample.  It  seems  evident  to  me 
that,  at  the  time  when  the  unindorsed  bill  of  lading  was  left,  there  was 
no  agreement  between  the  two  parties  that  that  specific  cargo  should 
become  the  property  of  the  defendant.  If  that  is  so,  the  case  remains, 
as  to  the  question  of  property,  exactly  as  it  did  after  the  original  con- 
tract. There  is  a  contract  to  deliver  a  cargo  on  board,  and  probably 
for  an  assignment  of  that  cargo  by  indorsing  the  bill  of  lading  to  the 
defendant;  but  there  was  nothing  which  amounted  to  an  appropriation, 
in  the  sense  of  that  term  which  alone  would  pass  the  property.  The 
result  is.  that,  in  this  action  of  trover,  the  plaintiff's,  claiming  under 
Lethbridge  by  the  indorsement  of  the  bill  of  lading,  are  entitled  to  the 
propertv  :  and  then  Mr.  Baker  has  his  remedy  against  him  for  the  non- 
fulfilment  of  his  contract,  which  he  certainly  has  not  fulfilled. 

Rolfe.  B.,  and  Platt,  B.,  concurred.  Rule  discharged1 


TURNER   v.  TRUSTEES. 
In  the  Exchequer  Chamber,  May  20,  1851. 

[Reported  n>  G  Exchequer  Reports,  543.] 

Patteson,  J.  This  was  an  action  to  try  the  right  of  the  plaintiffs, 
as  assignees  of  Messrs.  Higginson  &  Deane,  who  were  merchants  in 
Liverpool,  trading  under  the  name  of  Barton,  Irlam,  &  Higginson,  and 
had  become  bankrupts,  to  the  possession  of  a  quantity  of  cotton  and 
timber,  as   against   Messrs.  Menlove  &  Co.,  who  were   merchants  at 

i  Aldersok,  B.,  delivered  <i  briof  concurring  opinion. 


SECT.  VI.]  TURNER   V.   TRUSTEES.  220 

Charleston,  in  America,  and  the  real  defendants  in  this  suit.  The 
property  in  dispute  constituted  the  cargoes  of  two  vessels,  of  which  the 
bankrupts  were  owners,  called  the  "  Charlotte"  and  the  "  Iligginson  ;  " 
and,  as  it  is  agreed  that  the  same  questions  arise  with  respect  to  both, 
and  that  the  circumstances  are  .similar,  it  will  be  only  necessary  to  advert 
to  the  leading  facts  relating  to  one  of  them,  the  "  Charlotte." 

It  appears,  that  in  August,  18  17,  the  bankrupts  sent  orders  to  Menlove 
&  Co.,  at  Charleston,  to  ship,  on  their  (the  bankrupts')  account,  a  quan- 
tity of  cotton  for  the  homeward  cargo  of  the  "Charlotte,"  a  ship  belonging 
to  the  bankrupts,  which  had  been  sent  to  America  with  a  cargo  of  coals 
and  salt,  and  which  arrived  at  Charleston  on  the  l'Jtli  of  September. 
In  the  meantime,  Menlove  &  Co.  had  made  considerable  purchases  of 
cotton  in  execution  of  the  order,  and  continued  to  make  further  pur- 
chases until  within  a  da}-  or  two  of  the  sailing  of  the  "  Charlotte"  on  her 
homeward  voyage  with  the  cotton  on  board,  on  the  13th  of  October. 
On  the  12th  of  October,  the  master  of  the  '•  Charlotte"  signed  a  bill  of 
lading  of  the  cotton,  "to  be  delivered  at  Liverpool  unto  order  or  to  our 
assigns,  paying  freight  for  cotton  nothing,  being  owners'  property;" 
and  Menlove  &  Co.  indorsed  the  bill  of  lading  in  these  terms  :  ••  Deliver 
the  within  to  the  Bank  of  Liverpool,  or  order.     Edward  Menlove  &  Co." 

Messrs.  Menlove  &  Co.  informed  the  bankrupts,  from  time  to  time, 
of  these  purchases  as  they  were  made  ;  and  on  the  16th  of  October  they 
informed  the  bankrupts  of  the  sailing  of  the  "Charlotte,"  and  that  they 
bail  drawn  bills  upon  them  of  several  dates  (the  earliest  being  of  the  23rd 
of  September),  being  for  the  cargo  "on  their  account,"  by  the  "  Char- 
lotte," and  desiring  them  to  insure  the  cotton.  On  the  19th  of  Octo- 
ber, Menlove  &  Co.  sent  an  abstract  invoice  of  the  cotton,  dated  the 
13th  of  October;  in  which  it  was  stated,  that  the  cotton  was  shipped 
by  Menlove  &  Co.  on  board  the  "  Charlotte,"  for  Liverpool,  "by  order, 
and  for  account  and  risk  of  Messrs.  Barton,  Irlam,  &  Co.  there,  and 
addressed  to  order."  And  on  the  23rd  of  October,  Menlove  &  Co.  sent 
to  the  bankrupts  a  full  invoice  of  the  cotton,  dated  the  13th  of  October, 
stating  that  the  cotton  was  shipped  for  Liverpool  by  order  and  for 
account  of  Barton  &  Co.  there,  and  to  them  consigned.  It  appeared 
that  Menlove  &  Co.,  having  no  sufficient  funds  of  the  bankrupts'  in  their 
hands  to  pay  for  the  cotton,  sold  the  bills  they  had  drawn  upon  them  to 
the  Bank  of  Charleston,  and  delivered  to  them  the  bill  of  lading,  indorsed 
as  before  mentioned,  as  security  for  the  due  honor  of  the  bills,  which,  with 
the  exception  of  one  very  small  one,  were  dishonored  by  the  bankrupts. 
and  taken  up  by  Menlove  &  Co.  ;  and  by  letter  of  the  23rd  of  October, 
Menlove  &  Co.  informed  the  bankrupts,  that  the  bank  to  whom  they 
had  sold  the  bills  required  the  delivery  of  the  bill  of  lading  to  them,  and 
that  they  had  so  delivered  it.  On  the  13th  of  November.  Higginson  & 
I  Vane  became  bankrupts.  The  "Charlotte  "  arrived  at  Liverpool  on  the 
26th  of  November  ;  and  on  the  27th  notice  was  gven  to  the  master, 
that  Menlove  &  Co.  claimed  to  stop  the  cargo  in  transitu,  and  required 
him  to  deliver  it  to  the  Bank  of  Liverpool  on  their  account. 


230  TURNER   V.    TRUSTEES.  [CHAP.  II. 

The  question  is,  whether  Menlove  &  Co.  could,  under  the  circum- 
stances, insist  upon  the  delivery  of  the  cargo  to  them  or  their  agents 
unless  the  bills  were  duly  honored.  It  was  contended  for  the  plaintiffs, 
the  assiguees,  that,  by  delivery  of  the  goods  on  board  the  bankrupts' 
own  ship,  specially  appointed  for  the  purpose  of  bringing  home  those 
goods,  and  such  delivery  being  made  to  the  master,  who  was  the  bank- 
rupts' agent  for  the  purpose  of  receiving  them,  the  absolute  property 
vested  in  them,  the  sale  being  complete  by  the  acceptance  of  the  order 
and  the  terms  of  the  invoice  ;  and  that  the  terms  of  the  bill  of  lading, 
by  which  the  goods  were  to  be  delivered  at  Liverpool  to  order  or  to  our 
(Menlove  &  Co.'s)  assigns,  did  not  prevent  such  absolute  property  vest- 
ing in  the  bankrupts,  nor  entitle  Menlove  &  Co.,  the  unpaid  vendors,  to 
any  right  of  stoppage  in  transitu,  or  any  other  right  over  them  whatever  ; 
and  more  especially  as  it  was  stated  that  no  freight  was  to  be  paid  for 
the  cotton,  being  owners'  property,  which  was  inconsistent  with  the 
property  remaining  in  Menlove  &  Co.  It  was  also  further  contended 
for  the  plaintiffs,  that  the  captain  had  no  power  to  bind  the  bankrupts 
by  the  special  terms  of  the  bill  of  lading,  and  that  the  delivery  must  be 
taken  to  be  absolute  to  the  vendees  ;  and  further,  that  if  Menlove  &  Co. 
had  any  lien,  the  assignment  of  the  bills  of  lading  to  the  bank  divested 
that  lien,  and  deprived  Menlove  &  Co.  of  all  power  over  the  goods. 

The  cases  mainly  relied  upon  by  them  in  support  of  their  principal 
point  were  Ogle  v.  Atkinson,  5  Taunt.  759  ;  Coxe  v.  Harden,  4  PLast, 
211  ;  the  case  of  The  Constantia,  6  Rob.  Adm.  Rep.  327  ;  Bohtlingk  u. 
Inglis,  3  East,  381,  and  the  case  of  Fowler  v.  Kymer  cited  in  it.  All 
these  cases,  however,  are  clearly  distinguishable  from  the  present.1 

On  the  part  of  the  defendants  it  was  contended,  that  Menlove  &  Co. 
had  never  parted  with  the  property  in  the  goods  to  the  bankrupts,  but 
had  reserved  it  until  they  were  paid  the  purchase-mone}-,  notwithstand- 
ing the  terms  of  the  invoice,  and  the  statement  in  the  bill  of  lading  that 
no  freight  was  payable  for  the  cotton,  being  owners'  property  ;  and  we 
are  of  opinion  that,  upon  the  facts  of  the  case,  the  judge  was  right  in 
directing  the  verdict  to  be  entered  for  the  defendants  upon  the  trial ; 
and  that  they  are  now  entitled  to  our  judgment. 

It  appears  by  the  bill  of  exceptions,  that  it  was  agreed  on  both  sides 
at  the  trial  that  there  was  no  question  of  fact  for  the  jury,  and  that  the 
judge  should  direct  them  how  they  should  give  their  verdict ;  and  he 
being  of  opinion,  upon  all  the  facts  of  the  case,  that  Menlove  &  Co.  had 
not  delivered  the  cotton  on  board  the  ship  to  be  carried  for  and  on 
account  and  at  the  risk  of  the  bankrupts,  but  that  they  intended  to  pie- 
serve  their  right  as  unpaid  vendors,  directed  the  verdict  to  be  entered 
for  the  defendants.  There  is  no  doubt,  that  a  delivery  of  goods  on 
board  of  the  purchaser's  own  ship  is  a  delivery  to  him,  unless  the  vendor 
protects  himself  try  special  terms  restraining  the  effect  of  such  delivery. 
In  the  present  case  the  vendors  by  the  terms  of  the  bill  of  lading  made 

1  His  lordship  here  stated  the  cases  cited. 


SECT.  VI.]  TURNER  V.  TRUSTEES.  231 

the  cotton  deliverable  at  Liverpool  to  their  order  or  assigns  ;  and  there 
was  not,  therefore,  a  delivery  of  the  cotton  to  the  purchasers  as  owners, 
though  there  was  a  delivery  on  board  their  ship.  The  vendors  still 
reserved  to  themselves,  at  the  time  of  delivery  to  the  captain,  the  jus 
disponendi  of  the  goods,  which  he  by  signing  the  bill  of  lading  acknowl- 
edged, and  without  which  it  may  be  assumed  that  the  vendors  would 
not  have  delivered  them  at  all. 

The  question  really  is,  whether  any  and  what  effect  is  to  be  given  to 
the  terms  in  the  bill  of  lading  making  the  goods  deliverable  to  the  order 
of  the  vendors;  for,  if  by  those  terms  they  reserved  to  themselves  the 
dominion  over  the  cotton,  it  would  not  pass  to  the  assignees.  The 
invoice  would  pass  no  property  whatever  its  terms  might  be,  the  prop- 
erty would  only  pass  upon  delivery,  and  the  only  effect  to  be  attributed 
to  the  form  and  expressions  of  the  invoice  or  bill  of  lading  would  be  as 
indicating  the  terms  upon  which  the  goods  were  delivered. 

The  plaintiffs  in  error  rely  upon  the  terms  of  the  invoice  and  the 
expression  in  the  bill  of  lading,  that  the  cotton  is  free  of  freight,  being 
owners'  property,  as  showing  that  the  delivery  on  board  the  ship  was 
with  intention  to  pass  the  property  absolutely  ;  but  the  operative  terms 
of  the  bill  of  lading,  as  to  the  delivery  of  the  goods  at  Liverpool,  and 
the  letter  of  Menlove  &  Co.  of  the  23rd  of  October,  show  too  clearly  for 
doubt,  that  notwithstanding  the  other  terms  of  the  bill  of  lading  and 
the  invoice,  Menlove  &  Co.  had  no  intention,  when  they  delivered  the 
cotton  on  board,  of  parting  with  the  dominion  over  it,  or  vesting  the  abso- 
lute property  in  the  bankrupts.    Upon  this  part  of  the  case,  the  decisions 
of  the  Court  of  Exchequer  in  Van  Casteel  v.  Booker,  2  Exch.  GDI.  and 
Wait  v.  Baker,  2  Exch.  1,  are  authorities  directly  in  favor  of  the  defendants. 
The  plaintiffs  further  insisted,  that  the  captain  had  no  power  to  bind 
the  bankrupts  by  such  terms  in  the  bill  of  lading  as  would  leave  the 
property  still  in  the  control  of  the  vendors,  and  yet  engage  that  the 
cotton  should  be  freight  free.     Whether,  as  the   cotton  was   actually 
carried,  the  owners  of  the  ship  as  such  might  not  be  entitled  to  freight 
upon  a  quantum  meruit,  notwithstanding  the  terms  of  the  bill  of  lading, 
is  a  point  not  necessary  now  to  determine  ;   but  with  respect  to  the 
question,  whether  the  plaintiffs  could  set  up  the  want  of  authority  in 
the  master  as  a  ground  for  contending  that  there  was  an  absolute  deliv- 
ery of  the  goods,  so  as  to  vest  the  property  in  the  bankrupts  immediately 
upon  the  delivery,  notwithstanding  the  special  terms  upon  which  they 
were  delivered  and  accepted  by  the  captain,  we  are  clearly  of  opinion 
that  it  is  not  competent  to  them  to  do  so  ;  and  that  as  Menlove  &  Co. 
delivered  the  cotton  on  board  upon  special  terms,  which  the  captain  was 
not  bound  to  accept,  but  without  which  they  would  not  have  delivered 
them,  and  which  would  preserve  to  themselves  the  control  over  them, 
the  bankrupts  cannot  treat  the  delivery  to  the  captain  as  a  delivery  to 
them  as  their  property,  when  it  was  expressly  agreed  that  they  were  not 
to  be  delivered  to  the  bankrupts  but  to  the  order  of  the  vendors  ;  and 
the  want  of  authority  of  the  master  to  accept  them  on  such  terms  will 


232  KEY   V.    COTESWORTH.  [CHAP.  IL 

not  have  the  effect  of  vesting  the  property  absolutely  in  the  bankrupts. 
The  ease  of  Mitchel  v.  Ede,  11  A.  &  E.  888,  is  a  strong  authority  in 
favor  of  the  defendants. 

"With  respect  to  the  question  whether  the  transfer  of  the  bills  of  lading 
by  themselves  to  the  bank  of  Charleston  divested  their  power  over  the 
goods,  we  are  of  opinion  that  it  did  not ;  Menlove  &  Co.  were  the  ven- 
dors of  the  goods,  and  reserved  to  themselves,  by  the  terms  upon  which 
they  delivered  them  on  board  the  ship,  the  property  in  those  goods  until 
payment  duly  made.  By  indorsing  and  depositing  the  bills  of  lading 
with  the  bank  of  Charleston  as  a  security,  they  did  not  divest  themselves 
of  the  property  in  the  goods  which  they  had  reserved,  and  were  in  a 
situation  to  claim  the  goods  as  against  the  bankrupts  by  their  agents  at 
Liverpool.  They  never  had  divested  themselves  of  the  property  in  the 
goods,  nor  of  the  possession  except  by  delivery  to  the  captain.  This  is 
not  the  case  of  delivery  to  a  carrier  for  the  purpose  of  his  delivering 
them  to  the  vendee,  but  a  delivery  for  the  purpose  of  the  carrier  deliver- 
ing them  according  to  the  order  of  the  vendor,  who  retains  more  than  a 
mere  lien  upon  the  goods.  Neither  the  bankrupts  nor  the  assignees  ever 
had  the  property  in  the  cotton  as  against  the  vendors,  and  the  objection 
to  their  title  may  properly  be  taken  under  the  plea  of  not  possessed. 
It  was  said,  that  as  Menlove  &  Co.  had  funds  of  the  bankrupts  in  their 
hands  to  some,  though  to  a  very  small,  extent,  they  were  not  unpaid 
vendors  to  the  full  extent;  but  this  really  makes  no  difference,  as  no 
particular  portion  of  the  cotton  was  bought  with  those  funds ;  and  the 
bulk  generally  being  purchased  by  Menlove  &  Co.  with  their  own  funds 
or  credit,  they  retained  their  property  in  the  whole  of  the  goods  until 
payment  for  the  whole. 

A  question  was  made  as  to  the  admissibility  of  some  of  the  evidence  ; 
but  as  no  matter  of  fact  was  in  question  for  the  jury,  and  we  are  of 
opinion  that,  independently  of  the  evidence  objected  to,  there  was  suffi- 
cient unobjectionable  evidence  to  warrant  the  direction  of  the  judge, 
it  has  become  immaterial  to  consider  whether  the  evidence  that  was 
objected  to  was  receivable  or  not.  Our  judgment,  therefore,  is  for  the 
defendants  in  error,  and  the  judgment  in  the  court  below  must  be 
affirmed.  Judgment  affiwied. 


KEY  and   Others   v.  COTES  WORTH    and   Others. 
In  the  Exchequer,  May  8,  1852. 

[Reported  in  7  Exchequer  Reports,  595  ] 

Assumpsit  for  money  received  by  the  defendants  for  the  use  of  the 
plaintiffs.     Plea,  non  assumpserunt  ;  upon  which  issue  was  joined. 

At  the  trial  before  Martin,  B.,  at  the  London  sittings  after  last 
Trinity    term,    it    appeared    that  the  action  was   brought   to  recover 


SECT.  VI.]  KEY   V.    COTESWOKTH.  233 

the  sum  of  £671  15s.  9d.,  being  the  proceeds  of  two  cargoes  of 
Indian  silk  handkerchiefs,  consigned  by  the  plaintiffs,  merchants  at 
Madras,  carrying  on  business  under  the  firm  of  Bunny  &  Co.,  to 
the  defendants,  merchants  in  London,  under  the  following  circum 
stances,  which  were  mainly  admitted  on  both  sides  :  In  the  year  1845, 
Messrs.  Kilgour  &  Leith,  merchants  at  Glasgow,  were  desirous,  through 
the  defendants,  their  London  agents,  of  procuring  Indian  silk  hand- 
kerchiefs from  the  plaintiffs  at  Madras  ;  and  accordingly,  on  the  7th 
August,  1815,  Kilgour  &  Leith  wrote  to  the  defendants  as  follows: 

"  We  beg  to  acknowledge  the  receipt  of  your  favors  of  31st  ult.  and 
5th  iust.  We  find  it  does  not  answer  your  views  to  execute  our 
friends'  order  for  India  goods.  We  thought  you  would  have  con- 
sidered this  not  as  an  isolated  transaction,  but  as  one  connected 
with  our  account,  and  that  of  our  friends,  whose  other  business  we 
have  directed  to  come  through  your  house,  and  which  will  extend  to 
£12,000  or  £15,000  per  annum.  It  certainly  will  take  some  time 
before  the  first  order  can  be  brought  forward,  but  afterwards  the  same 
quantity  would  be  required  every  three  or  four  months.  We  did  not 
think  the  liability  great,  as  the  goods  would  of  course  remain  under  your 
control  till  settled  for.  However,  to  save  all  trouble  in  the  ordering, 
&c,  we  have  arranged  to  have  the  goods  made  in  Madras,  and  shipped 
from  thence  to  England  ;  Ave  presume  you  will  take  them  as  a  consign- 
ment, and  on  receipt  of  bill  of  lading  accept  for  same.  We  will  thank 
you  to  say  as  to  this  soon." 

In  answer  to  that  letter,  the  defendants,  on  the  9th  of  August, 
wrote  to  Kilgour  &  Leith  in  these  terms  :  — 

"  We  will  answer  your  proposition  respecting  the  credit  for  the 
purchase  of  Madras  handkerchiefs  ;  in  the  mean  time  please  to  inform 
us  at  what  date  your  friends  would  draw  on  us  for  the  cost ;  whether 
you  contemplate  putting  us  in  funds  at  their  maturity,  or  do  you 
intend  the  credit  we  have  granted  to  you  to  be  made  available  in  part 
for  this  business." 

On  the  11th  of  August,  Kilgour  &  Leith  wrote  to  the  defendants  as 
follows :  — 

"  The  drafts  for  the  Indian  goods  would  be  at  six  months'  sight, 
and  accompanied  by  bill  of  lading.  We  propose  you  accept  for  these 
goods  as  against  a  consignment  of  produce,  we  providing  funds  at 
maturity,  or  before  if  reshipped  to  the  West  Indies.  We  do  not 
intend  that  the  credit  we  have  at  present  with  you  shall  be  made 
available  for  this  business  ;  we  want  the  handkerchiefs  to  represent 
the  draft  against  them  till  shipped  for  our  friends  in  the  West." 

On  the  18th  of  August,  the  defendants  wrote  to  Kilgour  &  Leith 
in  these  terms :  — 


234  KEY   V.   COTES  WORTH.  [CHAP.  II. 

"  With  reference  to  the  credit  you  require  for  the  cost  of  India 
goods  to  be  ordered  from  Madras,  we  are  willing  to  grant  it  you, 
knowing  the  firm  to  whom  you  transmit  the  order;  we  will  send  you 
the  necessary  letter  of  credit." 

On  being  informed  that  the  plaintiffs  were  the  persons  to  whom 
Messrs.  Kilgour  &  Leith  desired  the  letters  of  credit  to  be  given,  on 
the  17th  of  September,  the  defendants  wrote  to  the  plaintiffs  as 
follows  :  — 

"  At  the  request  of  Messrs.  Kilgour  &  Leith,  of  Glasgow,  we  beg 
to  open  credit  in  your  favor  to  the  extent  of  £1,500,  to  be  applied  to 
the  execution  of  an  order  they  have  given  you  for  Madras  handker- 
chiefs, and  for  cost  of  which,  as  produced,  you  may  draw  on  us  at 
the  customary  date,  on  forwarding  bills  of  lading  to  our  order,  and 
timely  orders  for  insurance." 

On  the  7th  of  November,  the  plaintiffs  wrote  to  the  defendants  :  — 

"  We  have  the  pleasure  to  acknowledge  the  receipt  of  your  letter  on 
the  17th  of  September,  handed  to  us  by  Messrs.  Scott,  Bell,  &  Co., 
authorizing  us  to  draw  on  you  to  the  extent  of  £1,500,  in  execution  of 
an  order  for  handkerchiefs,  on  account  of  Messrs.  Kilgour  &  Leith, 
of  Glasgow.  We  shall  gladly  avail  of  this  authority,  shipping  the 
goods  to  your  order,  and  giving  you  timely  advice,  that  you  may 
effect  insurance  on  your  side." 

The  plaintiffs  accordingly  executed  the  order,  and  forwarded  the 
goods  and  bill  of  lading  to  the  defendants,  who  received,  accepted, 
and  paid  the  bills  drawn  on  them,  in  accordance  with  the  letter  of  the 
17th  of  September,  to  the  extent  of  £1,500  therein  mentioned;  and 
this  transaction  was  closed. 

On  the  5th  of  February,  1847,  Messrs.  Kilgour  &  Leith  wrote  to 
the  plaintiffs  as  follows:  — 

"  Inclosed  are  patterns  of  a  third  order  for  handkerchiefs,  which 
we  will  thank  you  to  have  put  in  hand  immediately  on  receipt.  This 
order  has  been  too  long  delayed  ;  and  if  you  can  by  any  means  hurry 
execution,  we  shall  feel  particularly  obliged.  You  will  draw  for  cost, 
and  consign  goods  as  before." 

The  patterns  were  inclosed,  together  with  a  detail  of  the  order. 
The  goods  thus  ordered  were  shipped  for  England  in  two  vessels,  the 
"Providence"  and  the  "Essex."  The  goods  by  the  "Providence" 
were  shipped  on  the  21st  of  August,  1847;  and  they,  as  well  as  the 
goods  shipped  in  the  "  Essex,"  were  stated  in  the  admissions  to  have 
been  shipped  on  the  said  order,  and  on  account  of  Messrs.  Kilgour  & 
Leith. 

On  the  same  day  (21st  of  August,  1847)  the  plaintiffs  wrote  to  the 
defendants   as   follows:  — 


SECT.  VI.]  KEY   V.    OOTESWORTH.  235 

"  By  the  desire  of  our  mutual  friends,  Messrs.  Kilgour  &  Leitb,  of 
Glasgow,  we  beg  to  hand  you  herewith  invoice  and  bill  of  lading  for 
nine  cases  Madras  handkerchiefs,  shipped  on  the  '  Providence, '  Cap- 
tain S.  Hicks,  to  your  address,  and  against  which  we  have  as  usual 
drawn  upon  you  at  six  months  for  the  equivalent  of  the  amount  of 
invoice,  in  £309  2s.  Id.,  being  at  the  current  exchange  of  2s.  per 
rupee,  and  which  will  no  doubt  be  duly  protected.  These  goods  have 
been  placed  in  a  cabin  to  prevent  the  chance  of  their  sustaining  injury 
from  the  cargo,  and  as  they  have  not  been  insured,  we  trust  you  will 
cover  the  risk  on  your  side." 

The  bill  of  lading  and  invoice  mentioned  in  this  letter  were  enclosed, 
and  the  letter  and  its  contents  received  by  the  defendants  on  the  26th 
of  October  in  due  course.  By  the  bill  of  lading,  which  bore  date  the 
21st  of  August,  the  goods  were  deliverable  at  London  to  the  defend- 
ants or  their  assigns,  they  paying  freight,  &c.  The  invoice,  which 
was  also  dated  August  21,  stated  that  the  goods  were  consigned  to 
the  defendants,  "on  account  and  risk  of  Messrs.  Kilgour  &  Leith, 
Glasgow." 

The  goods  by  the  "  Essex"  were  shipped  on  the  9th  of  October.  A 
bill  of  lading,  indorsed  in  blank  by  the  plaintiffs,  and  an  invoice 
substantially  in  the  same  form  as  the  above,  were  enclosed  in  a  letter 
from  the  plaintiffs  to  the  defendants,  dated  the  12th  of  October,  and 
which  was  received  by  the  defendants  on  the  22d  of  November.  This 
letter  was  as  follows:  — 

"  By  desire  of  our  mutual  friends,  Messrs.  Kilgour  &  Leith,  of 
Glasgow,  we  have  the  pleasure  to  hand  you  herewith  invoice  and  bill 
of  lading  for  eight  cases  Ventapollam  handkerchiefs,  shipped  in  the 
'  Essex,'  Captain  W.  N.  Howard,  to  your  care  ;  and  we  have  as  usual 
drawn  upon  you  at  six  months  for  the  equivalent  of  the  amount  of 
invoice  in  £302  13s.  8d.,  being  at  the  current  exchange  of  Is.  llhd. 
per  rupee,  and  which  will  doubtless  meet  due  honor.  We  leave  the 
insurance  to  be  effected  on  your  side." 

On  the  27th  of  October,  Messrs.  Kilgour  &  Leith  stopped  payment. 
The  goods  by  the  "  Providence  "  arrived  in  London  on  the  21st  of 
October,  the  goods  by  the  «  Essex  "  on  the  3d  of  March.  1848.  Both 
parcels  were  received  by  the  defendants  under  the  bills  of  lading,  and 
both  were  sold  by  them,  and  the  proceeds,  amounting  to  £671  15s. 
9d.,  sought  to  be  recovered  in  this  action,  received  by  the  defendants. 
Messrs.  Kilgour  &  Leith  were  before  and  at  the  time,  and  still  are, 
indebted  to  the  defendants  on  a  balance  of  account  in  a  larger  sum. 

On  the  21st  of  October.  Scott,  Bell,  &  Co.,  the  plaintiffs1  corre- 
spondents in  London,  having  received  the  bill  drawn  against  the 
goods  by  the  '  Providence,'  caused  it  to  be  presented  for  acceptance 
to  the  defendants,  who  ultimately  refused  to  accept  it.     The  second 


236  KEY    V.    COTESWORTH.  [CHAP.    II. 

bill  was  also  presented  for  acceptance  on  the  22cl  of  November,  and 
dishonored,  and  both  bills  were  duly  protested. 

Upon  the  foregoing  evidence,  the  learned  judge  was  of  opinion  that 
there  was  no  question  for  the  jury,  and  nonsuited  the  plaintiffs. 

Against  a  rule  nisi  to  set  aside  the  verdict  and  for  a  new  trial, 

Knowles  and  Willes  showed  cause. 

The  Attorney-General  (Montague  Smith  with  him),  in  support  of 
the  rule.  Cur.  adv.  vult. 

The  judgment  of  the  court  was  now  delivered  by 

Parke,  B.  [After  stating  the  facts,  his  lordship  proceeded:]  It 
was  contended  at  the  trial,  on  behalf  of  the  plaintiffs,  that  the  sale  of 
the  handkerchiefs  was  a  sale  on  a  condition,  either  precedent  or  sub- 
sequent, that  the  defendants  should  accept  the  bills  drawn  on  them  in 
respect  of  the  handkerchiefs  ;  that,  upon  their  refusal  to  accept,  the 
condition  precedent  was  never  performed,  and  the  property  in  the  hand- 
kerchiefs never  passed  out  of  the  plaintiffs,  and  that  they  were  therefore 
entitled  to  them  or  their  proceeds  ;  and  that,  if  this  were  not  so,  at  all 
events  it  was  subject  to  the  condition  subsequent,  that  the  defendants 
should  accept  the  bills,  and,  if  not,  the  property  should  revert,  which 
condition  was  broken  ;  so  that  thereby  the  plaintiffs  became  entitled  to 
the  goods  or  their  proceeds  ;  and  whether  the  sale  was  on  a  condition 
or  not,  was  a  question  for  the  jury,  and  ought  to  have  been  left  to 
them.  On  the  other  hand  it  was  contended,  on  behalf  of  the  defend- 
ants, that  it  was  not  a  sale  upon  a  condition  at  all ;  that  it  was  an 
absolute  sale  by  the  plaintiffs  to  Messrs.  Kilgour  &  Leith ;  and  that, 
upon  the  shipment  of  the  goods  by  the  plaintiffs  on  account  and  risk 
of  Messrs.  Kilgour  &  Leith,  followed  up  by  the  transmission  of  the 
bills  of  lading  to  the  defendants,—  one  bill  of  lading  making  them  the 
consignees,  and  the  other  the  indorsees, —the  property  and  possession 
absolutely  vested  in  Kilgour  &  Leith,  and  these  goods  thereby  became 
theirs,  and  were  at  their  sole  risk,  and  they  alone  were  entitled  to  them 
and  their  proceeds  ;  and  that,  if  the  plaintiffs  had  any  right  of  action 
against  the  defendants,  which  on  their  part  was  denied,  it  was  upon  a 
contract  to  accept  the  bills,  to  be  implied  from  the  acceptance  of  the 
goods,  with  notice  of  the  contents  of  the  letters  of  the  21st  of  August 
and  12th  of  October;  and  that,  whether  it  was  a  sale  upon  a  condition 
or  not,  was  a  question  of  law  for  the  judge,  and  not  one  of  fact  for  the 
jury ;  the  entire  case,  so  far  as  related  to  the  contract  of  sale,  being 
contained  in  written  documents,  and  the  parties  never  having  had  any 
personal  communication  with  each  other.  The  learned  judge  was  of 
opinion  that  there  was  no  question  for  the  jury  in  this  case,  and  that  it 
was  for  him  to  decide  what  the  contract  was  ;  and  he  thought  the  sale 
to  Messrs.  Kilgour  &  Leith  was  an  absolute,  not  a  conditional  one; 
that  the  property  vested  in  them  upon  the  delivery  on  board  the  ship,  and 
the  transmission  of  the  bills  of  lading  to  the  defendants  ;  and  that  the 
plaintiffs  could  not  maintain  the  present  action  against  the  defendants, 
who  have  received  the  goods  and  disposed  of  them  under  the  authority 


SECT.  VI.]  GODTS   V.    ROSE.  237 

of  Kilgour  &  Leith,  and  could  not  bring  an  action  for  the  proceeds  ; 
and,  by  his  direction,  the  plaintiffs  were  nonsuited. 

We  are  of  opinion  that  the  ruling  of  the  learned  judge  was  correct. 
We  think  that  the  question,  what  was  the  contract  between  the  parties, 
was,  in  this  case,  entirely  one  of  law  for  the  judge  to  decide  upon  ; 
nor  was  there  any  evidence  of  usage  to  which  the  letters  refer,  which 
would  be  matter  to  be  left  to  the  jury.  Looking  at  the  written  docu- 
ments alone,  the  learned  judge  was  quite  right  in  the  view  he  took 
at  the  trial,  that  the  property  vested  by  the  transmission  of  the  bills  of  y 
lading  in  the  manner  described  to  the  defendants,  with  the  invoices  at 
the  same  time.  If  it  had  been  the  intent  of  the  vendors  to  preserve 
their  right  in  that  property  until  the  bill  drawn  against  it  was  accepted, 
they  ought  to  have  transmitted  the  bills  of  lading  indorsed  in  blank  to 
an  agent,  to  be  delivered  over  only  in  case  the  acceptance  took  place. 
Having  delivered  them  without  that  qualification,  the  property  vested 
in  Kilgour  &  Leith,  or  the  defendants  as  their  agents.  Our  judgment 
in  this  case  is  in  conformity  with  that  of  the  Court  of  Exchequer 
Chamber  in  the  case  of  Wilmshurst  v.  Bowker,  7  M.  &  Gr.  882  ;  but 
there  is  a  passage  in  the  judgment  of  Lord  Abinger  which  was  much 
relied  on  by  the  learned  counsel  for  the  plaintiffs.  The  circumstances 
of  the  two  cases  are  very  similar  ;  and  Lord  Abinger  stated,  that,  if  the 
facts  had  been  before  a  jury,  he  was  not  prepared  to  say  that  they  might 
not  have  drawn  the  inference  that  the  remitting  of  the  banker's  draft, 
the  mode  of  payment  agreed  on  in  that  case,  was  a  condition  precedent 
to  the  vesting  of  the  property.  In  that  case  there  may  have  been  some 
particular  facts  to  go  to  the  jury,  but  at  all  events  it  was  only  the  obiter 
dictum  of  Lord  Abinger.  It  is  sufficient  to  say,  for  the  reasons  before 
given,  we  think  that  in  this  case  there  was  no  question  of  fact  as  to 
the  contract  to  be  submitted  to  the  jury.  Several  other  cases  were 
cited  on  collateral  points,  to  which  it  is  unnecessary  to  refer.  The 
rule  is  therefore  discharged.  Rule  discharged. 


GODTS   v.  ROSE. 
In  the  Common  Pleas,  November  22,  1855. 

[Reported  in  25  Law  Journal  Report,  Common  Pleas,  61.] 

Trover  for  casks  of  oil.  Pleas,  first,  not  guilty ;  and,  secondly, 
that  the  goods  were  not  the  goods  of  the  plaintiff.     Issues  thereon. 

The  action  was  tried  before  Jervis,  C.  J.,  at  the  sittings  for  London 
after  last  Trinity  term,  when  it  appeared  that  the  plaintiff,  a  commis- 
sion merchant,  on  the  12th  of  March,  1855,  sold  to  the  defendant,  an 
oil  and  color  merchant,  through  Soanes  &  Sons,  brokers,  acting  on 
behalf  of  both  the  plaintiff  and  the  defendant,  five  tons  of  foreign  rape 
oil  on  the  following  contract:  — 


238  GODTS   V.   ROSE.  [CHAP.  II. 

London,  March  12,  1855. 
Bought  for  account  of  Mr.  W,  A.  Rose,  of  U.  A.  Godts,  five  tons 
of  first  quality  foreign  refined  rape  oil,  at  53s.  per  cwt.,  usual  allow- 
ances.    To  be  free  delivered  and  paid  for  in  fourteen  days  by  cash, 
less  £2  10s.  per  cent  discount. 

(Signed)  Geo.  Soanes  &  Sox,  Brokprs. 

The  plaintiff,  on  receipt  of  the  sold  note  from  the  brokers,  gave 
to  the  wharfinger,  Humphery,  at  whose  wharf  he  had  some  oil,  the 
following  transfer  order  :  — 

No.  1122.  London,  March  13,  1855. 

To  the  Superintendent  of  Hibernia  Wharf. 

Please  transfer  to  the  order  of  W.  A.  Rose,  Esq.,  ex  "Neptune," 
from  Havre,  entered  with  charges,  from  mark  Nos.  46-56,  eleven 
pipes  refined  rape  oil. 

(Signed)  UT  A.  Godts. 

The  wdiarfinger  thereupon  gave  the  plaintiff  the  following  notice  of 
transfer,  directed  to  the  defendant:  — 

Hibernia  Wharf,  Southwark,  March  13,  1S55 
Mr.  W.  A.  Rose. 

Sir,  —  I  have  received  an  order  from  U.  A.  Godts,  for  46-56,  eleven 
casks  rape  oil,  ex  "Neptune,"  from  Havre,  which  are  transferred  to 
your  name. 

(Signed)  For  John  Humphery,  T.  N.  Sampson. 

The  plaintiff's  clerk  immediately  went  with  this  notice  of  transfer 
to  the  defendant's  counting-house  and  delivered  it  to  the  defendant's 
clerk,  together  with  an  invoice  of  the  oils,  and  demanded  a  check  in 
payment;  this  was  refused  by  the  defendant's  clerk,  on  the  ground 
that  the  plaintiff  was  not  entitled  to  be  paid  until  fourteen  days  after 
delivery.  The  plaintiff's  clerk  then  demanded  to  have  the  notice  of 
transfer  returned  to  him,  but  the  defendant's  clerk  refused  to  do  so 
and  retained  it,  and  on  the  same  da}*  sent  to  the  wharfinger,  who 
delivered  to  the  defendant  a  portion  of  the  oil.  Before  the  whole  had 
been  delivered,  the  plaintiff  went  to  the  wharfinger  and  countermanded 
the  delivery  ;  but  the  latter,  being  of  opinion  that  the  property  in  the 
oil  had  passed  to  the  defendant,  delivered  the  whole  to  him,  where- 
upon the  plaintiff  brought  this  action. 

The  broker  was  called  as  a  witness  for  the  plaintiff,  and  on  cross- 
examination  stated  that  the  commercial  meaning  of  the  contract  was 
that  the  seller  would  have  fourteen  days  to  deliver,  and  the  buyer 
fourteen  days  to  pay  after  delivery  ;  that  it  was  customary  to  require 
payment  on  delivery,  but  that  such  was  not  the  meaning  of  the  con- 
tract. On  re-examination,  however,  he  stated  that  the  seller  may 
deliver  within  fourteen  days  and  require  payment.  The  jury  found 
that  the   plaintiff's  clerk  did  not  intend  to  part  with  the  oil  or  the 


SECT.  VI.]  GODTS    V.    ROSE.  239 

notice  of  transfer  without  the  check,  and  that  he  said  so  at  the  time. 
The  learned  judge  directed  a  nonsuit  to  be  entered,  and  reserved  leave 
to  the  plaintiff  to  move  to  enter  a  verdict  for  £2G.3. 
Raymond  showed  cause. 

Byles,  Serjt.,  and  //.  Jtanes,  in  support  of  the  rule. 
Jehvis,   C.  J.     I  am  of  opinion  that  this  rule  ought  to  be  made 
absolute.     Several  objections  have  been  made  to  the  maintenance  of 
this  action,  but  I  do  not  think  that  any  of  them  are  entitled  to  prevail. 
It  is  first  said  that  parol  evidence  was  not  admissible  to  explain  the 
written  contract ;   but  it  hardly  lies  in  the  mouth  of  the  defendant  to 
make  that  objection,  as  it  was  he  himself  who  extracted  the  evidence 
on  cross-examination  of  the  plaintiff's  witness.     The  result  of  it  was, 
that  the  seller  may  deliver  at  any  time  within  fourteen  days,  and  at 
the  time  of  delivery  require   payment.     Then  it  is  said  that  such  a 
construction   conflicts  with  the    decision  of  this  court  in  Spartali  v. 
Benecke  ;   but  that  is  not  so.     The  contract  in  that  case  was  not,  as 
here,  that  the  goods  should  be  free  delivered   and  paid  for  within  a 
specified  time,  but   that  they  should  be  paid  for,  without  saying  when 
they  were  to  be  delivered,  within  a  specified  time.    The  court,  therefore, 
in  that  case  decided,  as  I  think  rightly,  that  the  buyer  was  entitled  to  a 
delivery  of  the  goods  at  any  reasonable  time  after  the  date  of  the  con- 
tract, within  the  time  specified  ;   and  that  the  seller  was  not  entitled  to 
payment  of  the  price  before  the  end  of  that  time.     But  in  this  case  the 
goods  are  to  be  delivered  and  paid  for,  that  is,  each  event  is  to  happen 
in  fourteen  days.     I  think,  therefore,  that  the  plaintiff's  contention  is 
fight,  and  it  was  supported  by  the  evidence  given  at  the  trial,  that  the 
seller  had  fourteen  days  within  which  he  might  deliver,  and   that  he 
was  entitled  to  call  for  payment  at  the  period  of  delivery.     If  that  con- 
struction be  correct,  the  second  objection  made  by  Mr.  Raymond  is 
answered,  viz.,  that  the  contract  itself  passed  the  property  in  the  goods 
and  vested  the  right  to  possession  in  the  defendant ;  for  that  could  not 
be  if  by  the  contract  the  goods  were  to  be  paid  for  on  delivery,  as  the 
property  could  not  pass  unless  payment  were  made.     But  it  is  further 
said  that  this  action  is  not  maintainable,  inasmuch  as  there  has  been  a 
complete  delivery.     Now,  the  facts  are  these:  the  plaintiff  sells  to  the 
defendant  a  certain  quantity  of  oil  not  ascertained  ;  he  has  at  the  time 
oil  lying  at  the  wharfinger's,  and  on  the  day  following  the  contract  he 
sends  an  order  to  the  wharfinger  to  transfer  certain  of  that  oil  to  the 
defendant.      The  wharfinger  accordingly  makes    the   transfer   in   his 
books  to  the  defendant,  and  gives  the  plaintiff's  clerk  a  paper  acknowl- 
edging the  transfer  ;   the  clerk  goes  with  this  paper  to  the  defendant's 
counting-house,  and  demands  a  check  in   payment;    this  is  refused, 
but  the  defendant  retains  possession  of  the  paper,  and  the  jury  Bud 
that  the  plaintiff's  clerk  did  not  intend  to  part  with  the  paper  without 
receiving  a  check.     There  was.   therefore,  no  intention  to  pass   the 
property  in  the  paper  or  the  goods  without  payment ;  and  the  question 
is,  whether  what  was  done  amounted  to  a  delivery.     No  doubt,  if  the 


240  FALKE    V.    FLETCHER.  [CHAP.  II. 

vendor  had  given  the  vendee  the  transfer  order,  and  the  vendee  had 
taken  it  to  the  wharfinger,  and  the  latter  had  assented  to  the  transfer, 
that  would  have  bound  the  vendor.  There  must  be  shown  to  have  been 
that  kind  of  triangular  contract  adverted  to  in  Williams  v.  Everett, 
14  East,  582,  where  the  agent  of  the  one  party  becomes  by  agreement 
between  all  three  the  agent  of  the  other.  In  this  case  there  has  been 
no  such  agreement  of  attornment:  the  wharfinger  made  no  bargain  with 
the  vendee  to  hold  for  him,  nor  did  the  vendee  make  any  bargain  to 
accept  the  wharfinger  as  his  agent.  The  transfer  order  was  given  to  the 
vendee  only  on  a  condition  with  which  he  refused  to  comply,  and  there 
could  be,  therefore,  no  such  acquiescence  as  was  necessary  to  change 
the  property  in  the  goods  in  the  hands  of  the  wharfinger.  It  did  not 
occur  to  me  at  the  trial  that  there  was  the  distinction  which  has  been 
pointed  out  by  the  learned  counsel  for  the  plaintiff  between  this  and 
the  cases  where  the  transfer  order  has  been  carried  by  the  vendee  to 
the  wharfinger ;  but  I  am  now  of  opinion  that  the  nonsuit  was  wrong, 
and  that  the  plaintiff  is  entitled  to  the  verdict. 

Rule  absolute.1 


FALKE  v.   FLETCHER. 

In  the  Common  Pleas,  January  16,  1865. 

[Reported  in  34  Law  Journal  Reports,  Common  Pleas,  146.] 

This  was  an  action  tried,  before  Blackburn,  J.,  at  the  summer  assizes 
at  Liverpool,  1864. 

The  action  was  brought  for  the  conversion  of  1,000  tons  of  salt.  The 
defendant  pleaded  not  guilty,  and  that  the  salt  was  not  the  property  of 
the  plaintiff. 

It  appeared  at  the  trial  that  the  plaintiff  was  a  salt  merchant,  carry- 
ing on  business  at  Liverpool,  and  that  the  defendant  was  the  owner  of 
a  vessel  called  the  "  Savoir  Faire."  In  the  month  of  November,  1863, 
one  De  Mattos,  a  merchant  in  London,  through  the  plaintiff,  chartered 
the  "  Savoir  Faire  "  to  load  a  complete  cargo  of  salt  and  proceed  there- 
with to  Calcutta  ;  the  captain  to  apply  to  the  plaintiff  for  cargo  and 
custom-house  business. 

It  was  proved  that  De  Mattos  was  frequently  in  the  habit  of  employ- 
ing the  plaintiff  to  charter  vessels  for  the  conveyance  of  salt,  and  that 
the  course  of  business  was  for  the  plaintifT  to  purchase  the  cargo,  and 
to  load  it  in  his  own  lighters  and  at  his  own  expense.  That  in  the 
course  of  doing  so  he  took  the  mate's  receipts,  which  were  made  out  in 
his  own  n.iinc  and,  when  the  whole  cargo  was  loaded,  he  took  bills  of 
lading  in  his  own  name.  These  he  sent  to  De  Mattos,  with  invoices 
of  the  price  of  the  salt,  and  received  in  exchange  De  Mattos's  accept- 

i  Williams,  Cbowdbb,  and  Willes,  JJ.,  delivered  concurring  opinions. 


SECT.  VI.]  FALKE   V.   FLETCHER.  241 

ances  for  the  amount.  The  plaintiff  charged  no  commission  to  De 
Mattos,  hut  charged  such  a  price  for  the  salt  as  would  remunerate  him 
for  liis  trouble. 

This  course  was  followed  in  the  present  instance,  until  about  1,000 
tons  of  salt  were  loaded,  when  the  plaintiff,  having  beard  that  De 
Mattos  had  stopped  payment,  declined  to  load  anymore.  The  defend- 
ant thereupon  filled  up  the  ship  on  his  own  account.  The  plaintiff 
demanded  of  the  captain  bills  of  lading  in  his  own  name  for  the  salt  on 
board  in  exchange  for  the  mate's  receipts.  These  the  defendant  re- 
fused to  permit  him  to  give,  and  the  plaintiff  thereupon  sent  the  mate's 
receipts  to  his  agents  at  Calcutta,  with  directions  to  them  to  claim  the 
salt  on  its  arrival.  This  was  done,  but  the  captain  refused  to  deliver 
up  the  salt. 

The  learned  judge  directed  the  jury  that,  if  the  property  in  the  salt 
remained  in  the  plaintiff,  the  sailing  awa}'  from  Liverpool  after  the  de- 
mand and  refusal  of  the  hills  of  lading,  was  a  conversion  by  the  defend- 
ant ;  and  that,  if  the  plaintiff  did  not  intend  to  part  with  the  property 
in  the  salt  when  he  placed  it  on  board,  it  remained  in  him  as  against 
De  Mattos  and  also  as  against  the  defendant. 

The  jury  found  a  verdict  for  the  plaintiff,  with  damages,  £582  Ids. 
6e?..  the  damages  being  estimated  on  the  assumption  that  there  had 
been,  in  accordance  with  the  direction  of  the  learned  judge,  a  conversion 
at  Liverpool. 

Edward  James  now  moved  for  a  new  trial,  on  the  ground  of  mis- 
direction, and  that  the  damages  were  wrongly  estimated,  there  having 
been  no  conversion  until  the  vessel  reached  Calcutta. 

Erle,  C.  J.  I  am  of  opinion  that  there  ought  to  be  no  rule  in  this 
case.  The  plaintiff  was  in  reality  in  the  situation  of  an  unpaid  vendor. 
Having  undertaken  to  procure  salt  as  agent  for  De  Mattos,  he  puts  it 
on  board  a  ship  chartered  by  him  for  De  Mattos,  and  takes  the  mate's 
receipts  in  his  own  name.  Upon  this  the  proper  question  was  submit- 
ted to  the  jury,  namely,  whether  the  plaintiff  intended  thereby  to  vest 
the  property  in  the  salt  in  De  Mattos,  or  whether  he  intended  to  retain 
the  control  over  it  which  he  would  have  if  such  was  not  his  intention  ; 
and  the  jury  have  found  that  question  in  favor  of  the  plaintiff.  Then 
the  question  is,  whether  there  was  a  conversion  by  the  captain's  sailing 
away  from  Liverpool  and  refusing  to  give  the  plaintiff  bills  of  lading  in 
his  own  name.  By  reason  of  his  doing  so,  goods  to  which  the  plaintiff 
was  entitled  have  been  absolutely  lost  to  him  ;  and  I  think  the  learned 
judge  was  right  in  saying  that,  under  the  circumstances,  there  was  a 
conversion  when  the  defendant  caused  the  goods  wrongfully  to  be  taken 
out  of  the  control  of  the  plaintiff.  Bide  refused.1 

1  Williams  and  Willes.JJ.,  delivered  concurring  opinions,  and  Keating,  J.,  also 
concurred. 


16 


2-42  MOAKES   V.    NICHOLSON.  [CHAP.  II. 


MOAKES   v.   NICHOLSON. 
In  the  Exchequer,  May  31,  1865. 

[Reported  in  34  Law  Journal  Reports,  Common  Pleas,  273,  and  in  19  Common  Bench 
Reports,  New  6< ncs,  290.] 

In  this  case  the  plaintiff  sought  to  recover  damages  for  the  conver- 
sion of  a  cargo  of  coal ;  and  the  following  facts  were  proved  at  the 
trial. 

On  the  9th  of  December,  1864,  at  Hull,  a  person  named  Pope  bought 
of  a  person  named  Josse  a  quantity  of  coal,  and  a  great  deal  of  evi- 
dence, oral  and  written,  was  given  at  the  trial  in  order  to  show  the 
terms  of  the  sale,  the  defendant  contending  that  by  the  terms  of  this 
sale  there  was  to  be  "  payment  in  cash  against  bill  of  lading  in  the 
hands  of  Josse's  agent  in  London,"  and  that  it  was  not  the  intention  of 
the  parties  that  the  property  in  the  goods  should  pass  till  payment. 
The  coal  at  the  time  of  the  contract  was  lying  undistinguished  in  a  heap 
at  Josse's  yard,  containing  a  much  larger  quantity  than  that  contracted 
for,  and  it  was  to  be  shipped  on  board  a  vessel  which  was  chartered  by 
Pope  in  his  own  name  and  on  his  own  behalf,  to  carry  it  to  London. 
On  the  13th  of  December,  whilst  the  whole  or  all  but  a  very  small  por- 
tion of  the  coal  was  still  undistinguished,  Pope  sold  the  coal  he  had 
contracted  for  to  the  plaintiff  on  the  Coal  Exchange  in  London.  The 
plaintiff  resold  on  the  same  day  at  a  higher  price,  and  before  action  had 
paid  Pope.  By  the  19th  of  December  the  coal  was  shipped,  and  the 
captain  signed  three  bills  of  lading,  stating  the  coal  was  to  be  delivered 
to  "Pope  or  order"  on  being  paid  freight  and  demurrage  as  by  charter- 
party.  One  only  of  these  bills  was  stamped,  and  this  Josse  retained  ; 
the  second,  together  with  an  invoice  and  a  letter  announcing  the  load- 
ing, was  sent  on  the  19th  of  December  to  Pope,  who  received  them 
next  day.  Josse,  not  being  able  to  get  his  money  from  Pope,  sent  the 
stamped'  bill  of  lading  to  the  defendant,  his  agent,  with  directions  to 
stop  the  delivery  of  the  coal ;  and  the  captain,  under  the  defendant's 
directions,  refused  to  deliver  to  those  claiming  through  Pope,  and  the 
defendant  himself  took  the  cargo. 

The  jury  found  that  the  sale  was  for  cash,  and  the  learned  judge 
directed  a  verdict  for  the  plaintiff,  and  gave  the  defendant  leave  to 
move  to  set  this  verdict  aside  and  enter  one  for  himself,  on  the  grounds 
thai  on  the  facts  admitted  and  proved  the  defendant  was  entitled  to  the 
verdict,  that  the  defendant  had  a  right  to  stop  the  coals  in  transitu, 
and  that  neither  Pope  nor  the  plaintiff  had  any  right  to  the  property 
and  possession  of  the  coals. 

D.  D.  Kenne  and  Barnard  now  showed  cause. 
./.  A.  Russell  and  Thesiger,  in  support  of  the  rule. 
Erlb,  C.  J.     I  am  of  opinion  that  the  rule  to  enter  the  verdict  for 
the  defendant  should  be  made  absolute.     Moakes  brings  his  action  on 


SECT.  VI.]  BARBER   V.    MEYERSTEIN.  243 

the  ground  that  the  property  in  the  cargo  of  coals  seized  by  the  defend- 
ant belonged  to  him.  It  appears  that  the  coals  were  soid  by  Josse  to 
Pope,  and  by  Pope  to  Moakes.  One  material  question  is,  whether 
Moakea  could  have  any  better  title  to  the  coals  than  Pope  had.  I  think 
not.  That  is  undoubtedly  not  clear  as  a  general  proposition  ;  because, 
if  Josse  had  so  dealt  with  Pope  as  to  put  him  in  the  position  of  an  os- 
tensible owner,  by  intrusting  him  with  the  documents  of  title,  it  might 
be  that  Moakes  might  have  acquired  a  title  to  the  coals,  though  his 
vendor,  Pope,  had  none.  But  no  such  point  can  arise  here,  because  by 
the  terms  of  the  contract  it  was  distinctly  understood  between  Josse 
and  Pope  that  the  property  in  the  coals  was  only  to  vest  in  the  latter 
upon  the  payment  by  him  of  cash  against  the  bill  of  lading;  and  this 
condition  never  was  complied  with.  This  being  so,  whilst  the  coals 
remained  an  unascertained  quantity.  Moakes  entered  into  a  contract 
with  Pope,  under  which,  in  my  opinion,  he  took  precisely  the  same  title 
as  Pope  had  as  between  him  and  Josse.  The  sole  question  therefore 
is.  what  was  the  intention  of  the  parties?  The  property  could  not  pass 
out  of  Josse,  unless  there  was  a  sale  by  him  with  the  intention  that  the 
property  should  pass  to  the  vendee.  Now,  it  was  clearly  the  intention 
of  Josse  —  and  the  jury  have  so  found  —  to  retain  the  property  until 
his  agent  in  London  should  receive  the  cash  against  the  bill  of  lading. 
If  that  was  the  clear  intention  of  Josse,  the  property  did  not  pass. 
That  this  was  the  contract,  is  clear  from  the  correspondence.  The  de- 
livery of  the  coals  on  board  a  ship  chartered  by  Pope  has  no  effect 
whatever  in  passing  the  property.  If  the  intention  was  that  the  ship 
should  be  regarded  as  the  warehouse  of  Josse  until  the  happening  of 
the  event  contemplated,  viz.,  the  payment  of  the  price,  the  putting  the 
coals  on  board  did  not  alter  the  position  of  the  contracting  parties. 
At  the  time  Moakes  made  his  contract  with  Pope,  there  had  been  no 
delivery,  and  no  bill  of  lading  existed.  He  therefore  cannot  say  that 
he  was  misled  by  Pope's  being  permitted  to  hold  himself  out  as  the 
true  owner.  Upon  the  whole,  therefore,  I  think  no  property  passed  to 
Pope,  and  that  the  now  plaintiff  cannot  be  in  a  better  position  than 
Pope.  Bide  absolute.1 


BARBER    y.    MEYERSTEIN. 

In  the  House  of  Lords,  February  21,  22,  1S70. 
[Reported  in  Law  Reports,  4  House  of  Lords,  .317.] 

Tins  was  an  appeal,  under  the  Common  Law  Procedure  Act,  1854, 
against  a  decision  of  the  Court  of  Exchequer  Chamber,  by  which  a  pre- 
vious decision  of  the  Court  of  Common  Pleas  had  been  affirmed. 

The  facts  were  these  :  In  August,  1864,  De  Souza  &  Co.,  of  Madias 

1  Byles  and  Keating,  J.T..  delivered  concurring  opinions 


244  BARBER  V.    MEYERSTEIN.  [CHAP.  II. 

shipped  on  board  the  "Acastus"  227  bales  of  cotton  consigned  for  sale 
on  commission  to  Azemar  &  Co.,  of  Loudon.  There  were  three  bills  of 
lading  making  one  set.  They  were  in  the  usual  form,  except  as  to  the 
last  sentence,  which  concluded  thus:  "In  witness  whereof  I,  the  said 
master  of  the  said  ship,  have  affirmed  to  three  bills  of  lading,  all  of  this 
time  and  date,  one  of  which  being  accomplished,  the  others  to  stand 
void."  In  August,  1864,  the  vessel  sailed  for  London.  De  Sonza  & 
Co.  drew  bills  of  exchange  against  this  cotton  upon  Aze'mar  &  Co.  for 
£3,000,  £1,000,  £1,000,  and  £1,000,  to  fall  due  between  the  12th  of  Janu- 
ary, 1805,  and  the  22d  of  March,  1865.  These  bills  were  duly  accepted 
by  Azemar  &  Co.,  and  were  then,  with  the  three  bills  of  lading,  depos- 
ited with  the  London  branch  of  the  Chartered  Mercantile  Bank  of  India. 
At  the  end  of  1864,  Azemar  &  Co.  transferred  their  business,  including 
the  consignment  by  the  "Acastus,"  to  one  Abraham,  who  had  formerly 
been  in  their  employment. 

The  "Acastus"  arrived  in  London  on  the  31st  of  January,  1865,  and 
went  into  the  St.  Katherine's  Docks.  On  the  2d  of  February  Abraham 
made  an  entry  of  the  cargo  at  Cotton's  Wharf  (which  is  a  public  suffer- 
ance wharf)  in  the  form  given  by  one  of  the  Customs  Acts,  the  16  &  17 
Vict.  c.  167,  s.  60.  The  Sufferance  Wharf  Act,  11  &  12  Vict.  c.  xviii., 
contains  (cl.  5)  the  following  enactment,  important  for  the  consideration 
of  this  case,  that  "  all  goods  which  after  the  passing  of  this  Act  shall 
be  landed  at  any  of  the  public  sufferance  wharves  aforesaid"  (of  which 
Cotton's  Wharf  was  one),  "  from,  or  out  of,  any  ship  within  the  port  of 
London,  and  lodged  in  the  custody  of  the  wharfinger  for  the  time  being 
in  the  occupation  of  such  wharf,  either  at  such  wharf  or  elsewhere,  shall, 
when  so  landed,  continue  and  be  subject  to  the  same  lien  or  claim  for 
freight  in  favor  of  the  master  and  owner  of  the  ship  from  or  out  of  which 
such  goods  shall  be  landed,  or  of  any  other  person  interested  in  the 
freight  of  the  same  goods,  as  such  goods  were  subject  to  whilst  the  same 
were  on  board  such  ship,  and  before  the  landing  thereof;  and  the  said 
wharfinger,  his  servants  and  agents,  are  hereby  required,  on  due  notice 
in  writing  in  that  behalf  given  by  such  master  or  owner  or  other  person 
aforesaid  to  the  said  wharfinger,  &c,  to  detain  such  goods  in  the  ware- 
house of  the  said  wharfinger,  &C,  until  the  freight  to  which  the  same 
shall  be  subject  as  aforesaid  shall  be  duly  paid,  together  with  the  wharf- 
age rent  and  other  charges  to  which  the  same  shall  have  become  subject 
and  liable."  There  were  two  "stops"  lodged  against  this  cotton  from 
the  "Acastus,"  one  by  the  Chartered  Mercantile  Bank  of  India,  the 
other  by  the  master  for  the  freight.  On  the  9th  of  February  Abraham 
instructed  Barber  &  Co.,  as  brokers,  to  sell  the  cotton,  and  they  ob- 
tained from  him  an  order,  in  virtue  of  which  they  were  allowed  to  take 
samples.  On  the  4th  of  March  Abraham  gave  a  check  which  covered 
the  sums  due  to  the  Chartered  Mercantile  Bank,  and  thereupon  the 
bank  delivered  up  to  him  the  three  parts  of  the  bill  of  lading,  and  so  put 
an  end  to  the  "stop"  which  had  been  lodged  on  account  of  the  bank. 
On  the  same  day  he  deposited  with  Meyerstein  (with  whom  he  had  other 


8ECT.  VI.]  BARBER   V.    MEYERSTEIN.  245 

transactions)  one  of  the  three  parts  of  the  bill  of  lading  for  the  cotton 
by  the  "Acastus,"  together  with  the  original  consignment  to  Azemar  & 
Co.,  and  thereupon  Meyerstein  gave  to  Abraham  a  check  for  £2,500, 
which  was  duly  paid.  Meyerstein  asked  for  the  second  part  of  the  bill 
of  lading,  and  received  it.  lie  did  not,  however,  ask  for  the  third  part, 
believing  that  the  third  part  was  retained  by  the  captain  of  the  vessel. 

Barber  &  Co.  were  wholly  ignorant  of  these  transactions,  and  on  Mon- 
day, the  6th  of  March,  Mr.  C.  Barber  advanced  to  Abraham,  by  check, 
£1,500  on  the  cotton  by  the  "Acastus,"  and  on  the  next  day,  the  7th  of 
March,  made,  by  check,  a  farther  advance  of  £500  upon  receiving  the 
third  of  the  set  of  bills  of  lading  (which  had  been  fraudulently  kept  by 
Abraham),  and  on  being  at  the  same  time  informed  of  the  fact  that  the 
stop  order  for  freight  had  been  removed.  On  the  11th  of  March  Meyer- 
stein heard  for  the  first  time  that  the  Barbers  had  been  employed  by 
Abraham  to  oiler  the  cotton  for  sale.  On  that  day  they  lodged  their 
third  copy  of  the  bill  of  lading  at  the  wharf.  On  the  same  day  Meyerstein 
obtained  from  Abraham  a  letter  addressed  to  Messrs.  Barber,  requesting 
them  to  pay  over  to  him  "  the  surplus  net  proceeds  of  the  undermentioned 
goods,  after  satisfying  the  advances  you  have  made  us  (Abraham  &  Co.) 
upon  the  same."  Among  the  goods  thus  mentioned  was  the  cotton  by  the 
'•Acastus."  Meyerstein,  on  receiving  this  note,  struck  his  pen  through 
this  item,  saying  he  did  not  want  to  have  stolen  goods  transferred  to  him. 
He.  however,  forwarded  the  note  to  Messrs.  Barber,  and  stated  the  fact 
of  his  making  the  advance  of  £2,500,  though  the  evidence  left  it  doubt- 
ful whether  he  stated  the  exact  date  at  which  it  had  been  made.  On 
the  same  day  Messrs.  Barber  wrote  to  Meyerstein  :  "  We  have  this  day 
received  a  letter  from  Messrs.  Abraham  &  Co.  requesting  us  to  pay  over 
to  you  the  surplus  net  proceeds  of  324  bales  of  cotton,  as  per  memoran- 
dum at  foot,  which  shall  receive  our  attention  in  due  course."  This 
memorandum  was  a  copy  of  that  sent  by  Abraham,  and  the  "Acastus" 
was  struck  out  of  it,  —  the  total  number  of  bales  in  each  case  being  only 
324,  while  if  those  of  the  "Acastus"  had  been  retained  in  the  list  there 
must  have  been  "211  added  to  that  number.  On  the  13th  of  March  the 
Barbers  obtained  from  the  wharfingers  at  Cotton's  Wharf  deliver}'  war- 
rants made  out  in  their  own  names  for  the  ill  bales  of  cotton,  which 
they  sold  to  different  purchasers,  who  received  them  under  the  warrants 
delivered  by  the  Barbers  to  them.  The  Barbers  claimed  to  satisfy  them- 
selves in  the  first  instance  for  their  advances  out  of  the  proceeds  of  the 
sales.  Meyerstein,  who  insisted  that  his  claim  took  precedence  of  theirs, 
thereon  brought  his  action  against  Barber  &  Co.  The  declaration  was 
in  the  form  of  money  had  and  received,  with  a  count  for  wrongful  con- 
version. The  defendants  pleaded,  never  indebted,  not  guilty,  and  that 
the  goods  never  were  the  plaintiff's.     Issue  was  taken  on  all  these  pleas. 

At  die  trial,  before  Lord  Chief  Justice  Erie,  in  June,  1866,  he  di- 
rected a  verdict  to  be  entered  for  the  plaintiff  for  the  whole  sum  he 
claimed,  reserving  leave  for  the  defendants  to  move  to  enter  a  verdict 
for  them.     The  rule  was  obtained,  and  was.  on  argument,  discharged. 


246  BARBER   V.    MEYERSTEIX  [CHAP.  II. 

On  appeal  to  the  Exchequer  Chamber,  the  judgment  of  the  Court  of 
Common  Pleas  was  affirmed.     This  appeal  was  then  brought. 

Sir  R.  Palmer,  Q.  C,  and  Mr.  Grantham,  for  the  appellant. 

Sir  G.  Honyman,  Q.  C,  and  Mr.  Bridge  (Mr.  Watkin  Williams  with 
them),  for  the  respondent  Meyerstein,  were  not  called  on. 

The  Loko  Chancellor  (Lord  Hatherley).  In  this  case  the  House 
is  called  upon  to  reverse  unanimous  judgments  of  the  Court  of  Common 
Pleas  and  of  the  Court  of  Exchequer  Chamber.  The  effect  of  these  judg- 
ments is  this, — to  determine  that,  as  to  the  plaintiff,  the  indorsee  for 
value  of  a  bill  of  lading  of  goods  which,  at  the  time  of  its  being  indorsed 
to  him,  were  landed  at  a  sufferance  wharf  on  the  Thames,  and  were  there 
subject  to  two  stops  put  upon  them  (the  one  by  the  ship-owner  for  freight, 
the  other  by  certain  mortgagees),  the  security  so  indorsed  is  available 
in  preference  to  the  claim  of  the  defendants,  who,  subsequently  to  such 
indorsement,  obtained  possession  of  the  goods  under  the  circumstances 
I  am  about  to  mention.  A  bill  of  lading  was  drawn  up  in  a  set  of  three, 
and  after  the  indorsement  of  the  first  two  of  the  three  to  the  plaintiff 
had  taken  place,  the  consignee  of  the  goods  fraudulently  retained  the 
third,  and  obtained  advances  from  the  defendants  on  the  security,  in 
the  first  place,  of  this  third,  and  proceeded  afterwards  to  the  wharf 
where  the  goods  had  been  deposited,  and  after  the  production  of  this 
third  bill  of  lading  obtained  the  removal  of  a  stop  which  had  been  put 
upon  the  goods  for  freight.  I  should  have  before  mentioned  the  previous 
removal  on  the  part  of  the  mortgagees  (the  directors  of  the  Chartered 
Bank  of  India)  of  their  stop  in  respect  of  their  mortgage.  Possession 
of  the  goods  was,  under  those  circumstances,  obtained  by  the  defendants, 
the  persons  who,  on  receiving  this  third  bill  of  lading  thus  fraudulently 
retained  by  the  consignee,  made  to  him  an  advance  on  the  gootls  repre- 
sented by  this  bill  of  lading. 

The  question  has  really  turned  upon  one  point,  and  I  may  almost  say 
upon  one  point  alone,  namely,  whether  or  not  the  bills  of  lading  had 
fully  performed  their  office,  and  were  discharged  and  spent  at  the  time 
that  the  plaintiff  took  his  security.  Whether,  in  other  words,  the  laud- 
ing of  those  goods  at  the  sufferance  wharf  in  the  name  of  the  consignee, 
but  subject  to  the  stop  which  was  put  upon  them  by  the  ship-owner, 
and  the  stop  put  upon  them  by  the  mortgagees,  was,  or  was  not,  a  de- 
livery which  had  exhausted  the  whole  effect  of  the  bill  of  lading.  That, 
I  think,  is  the  single  point  to  which  the  case  becomes  reduced. 

It  appears  to  me,  my  lords,  that  there  are  one  or  two  points  of  law 
which  must,  be  taken  to  be  clearly  established,  although  very  able  efforts, 
employed  with  considerable  ingenuity  and  resource,  have  been  directed 
to  the  shaking  of  those  well-established  points  of  law.  I  refer  particu- 
larly to  the  very  able  argument  we  have  heard  from  Mr.  Grantham  in 
this  case  with  reference  to  the  first  step,  if  I  may  so  call  it,  in  the  pro- 
ceeding, namely,  the  fact,  of  the  first  assignment  for  value  of  a  bill  of 
lading  when  the  goods  are  not  landed,  but  are  still  at  sea.  Now,  if  any- 
thing could  be  supposed  to  be  settled  in  mercantile  law,  I  apprehend  it 


SECT.  VI.]  BARBER    V.    MEYER.STEIN.  247 

would  be  this,  that  when  goods  are  at  sea  the  parting  with  the  bill  of 
lading,  be  it  one  bill  out  of  a  set  of  three,  or  be  it  one  bill  alone,  is 
parting  with  the  ownership  of  the  goods. 

Mr.  Grantham  has  raised  this  argument  upon  the  frame  of  the  bill  of 
lading  itself,  which  1  apprehend  is  in  the  common  form  where  three  bills 
are  given.  The  form  of  the  bill  of  lading  to  which  he  specially  referred, 
and  upon  which  he  founded  the  argument  I  now  advert  to,  is  this,  that 
the  shipper  undertakes  to  deliver  these  goods,  the  cotton,  to  the  Souzas 
or  order,  or  to  their  assigns,  he  or  they  paying  the  freight  for  the  goods 
at  the  rate  there  mentioned;  and  then,  at  the  end  of  the  document  we 
have  these  words,  "  In  witness  whereof  I,  the  master  of  the  ship,  have 
affirmed  to  three  lulls  of  lading,  all  of  this  tenor  and  date,  one  of  which 
being  accomplished,  the  others  to  stand  void."  The  argument  has  been 
this,  that  the  bill  of  lading  has  not  accomplished  its  office  until  not  only 
the  goods  are  landed,  but  the  freight  is  paid,  and  the  whole  matter 
which  is  the  subject  of  the  contract  of  the  ship-owner  has  been  achieved  ; 
and  that,  accordingly,  if  that  be  law,  it  follows  that  if  one  bill  of  lading 
be  assigned  while  the  ship  is  at  sea,  and  a  second  bill  of  lading  be  as- 
signed to  a  second  person,  fraudulently  of  course,  and  a  third  bill  of 
lading  be  assigned  to  a  third  person,  also  fraudulently,  of  course,  it  be- 
comes simply  a  matter  of  expedition  and  race  between  the  several  par- 
ties who  have  taken  those  different  assignments  of  the  bills  of  lading ; 
because  until  the  goods  have  actually  been  landed  and  fully  delivered, 
each  bill  of  lading,  according  to  the  argument,  is  to  be  considered  as  of 
equal  force  until  one  of  the  bills  has  been,  according  to  the  argument, 
accomplished. 

Now,  I  apprehend  that  it  would  shake  the  course  of  proceeding  be- 
tween merchants,  as  sanctioned  by  decided  cases  (which  the  learned 
counsel  admitted  to  have  been  decided,  and  never  yet  to  have  been 
altered  or  reversed),  if  we  were  to  hold  that  the  assignment  of  the  bill 
of  lading,  the  goods  being  at  the  time  at  sea,  does  not  pass  the  whole 
and  complete  ownership  of  the  goods,  so  that  any  person  taking  a  sub- 
sequent bill  of  lading,  be  it  the  second  or  be  it  the  third,  must  be  con- 
tent to  submit  to  the  loss  which  would  result  from  that  state  of  facts. 
I  apprehend  that  no  decision  can  be  found  to  the  effect  that  any  person 
taking  an  assignment  of  a  bill  of  lading,  knowing  that  others  existed,  is 
to  be  held  to  have  been  guilty  of  fraud  simply  from  the  fact  of  his  so 
acting.  No  authority,  at  all  events,  has  been  cited  for  that  proposition. 
And  no  authority  has  been  cited  at  the  bar  to  show  that  the  transaction 
is  not  entire  and  complete  when  once  the  bill  of  lading  has  been  assigned, 
as  respects,  at  all  events,  goods  in  transitu,  whether  the  assignment  lie 
by  mortgage  or  by  sale.  If  it  were  by  sale  other  considerations  would 
intervene  which  would  give  still  greater  efficacy  to  the  assignment  of 
the  goods  without  delivery  or  possession.  But  when  the  vessel  is  at  sea 
and  the  cargo  has  not  yet  arrived,  the  parting  with  the  bill  of  lading:  is 
parting  with  that  which  is  the  symbol  of  property,  and  which,  for  the 
purpose  of  conveying  a  right  and  interest  in  the  property,  is  the  prop- 


2-48  BARBER   V.    MEYERSTEIN.  [CHAP.  II. 

erty  itself.  It  appears  to  me  that  to  shake  any  conclusion  of  that  kind 
would  be  entirely  to  annihilate  the  course  of  mercantile  procedure  which 
has  existed  for  a  long  period  of  time,  —  far  longer,  probably,  than  I  can 
at  this  moment  accurately  state. 

That  being  so,  the  judges  have  reasonably  assumed  that  proposition 
as  a  point  of  undeniable  law.  Then,  if  the  property  so  passes  when  the 
goods  are  at  sea,  the  whole  question  resolves  itself  into  this  :  "What  is 
the  effect  of  the  assignment  of  the  bill  of  lading  under  the  circumstances 
of  this  case,  when  the  goods  were  not  at  sea  at  the  time  when  the  inter- 
est was  passed,  but  were  at  a  sufferance  wharf  in  the  name  and  by  the 
order  of  the  consignee,  Abraham,  who  represented  the  original  con- 
signees, the  Souzas,  subject  to  the  stop-order  in  respect  of  freight,  and 
subject  to  the  stop-order  given  to  the  chartered  bank. 

Now  the  circumstances  are  briefly  these  as  to  the  dates  :  On  the  4th 
of  March,  the  goods  being  in  the  situation  I  have  described,  Abraham, 
the  person  who  has  been  guilty  of  this  fraud,  not  being  then  in  posses- 
sion of  the  bills  of  lading  himself,  inasmuch  as  all  three  were  at  that 
time  in  possession  of  the  bankers,  applies  to  the  plaintiff  Meyerstein  for 
a  loan  ;  he  obtains  mone}-  from  Meyerstein  ;  he  first  draws  a  check  to 
meet  the  claim  at  the  bank,  a  check  provided  for  bj-  the  moneys  ad- 
vanced to  him  by  Meyerstein,  and  then  he  obtains  the  three  bills  of 
lading  from  the  bank.  And  on  the  same  4th  of  March,  having  these 
three  bills  of  lading  for  a  few  minutes  or  a  few  hours  in  his  possession, 
he  does  nothing  with  them  in  the  wa}-  of  claiming  possession  of  the 
goods  ;  he  makes  no  use  of  them  for  that  purpose,  but  he  at  once  pledges 
two  of  these  bills  for  value  to  Meyerstein.  And  that  pledge  being  so 
completed,  Meyerstein  is  in  possession  of  these  two  bills  with  no  other 
charge  or  claim  whatever  upon  the  goods  they  represented  except  the 
claim  for  freight,  the  freight  being  still  unsatisfied.  The  mortgage  had 
been  cleared  off,  and  he  had  become  the  owner  of  the  property  by  this 
transaction,  and  he  remained  the  owner  subject  to  the  payment  of  the 
freight.  Then  afterwards,  fraudulently,  Abraham  enters  into  farther 
dealings  with  his  brokers.  His  brokers  are  aware  that  the  goods  have 
arrived.  They  obtain  a  partial  order  from  Abraham,  by  which  they  are 
enabled  to  obtain  a  sample  of  the  cotton  in  question  ;  but  they  decline 
in  the  firsl  instance  to  make  him  any  advance.  He  proposes  to  obtain 
an  advance  on  the  bill  of  lading  simpliciter,  which  they  decline  to  make. 
But  they  were  afterwards  induced  to  make  the  advances  when  they  had 
seen  the  goods  themselves  at  the  wharf,  and  when  steps  had  been  taken 
by  Abraham  for  procuring  money  to  enable  him  to  discharge  the  stop 
which  existed  upon  the  goods  for  the  freight.  The  stop  which  existed 
in  respect  of  the  mortgage  had  been  already  discharged,  and  the  prop- 
erty, therefore,  became  apparently  at  his  disposal.  The  defendants, 
being  ignorant  of  the  transaction  with  Meyerstein,  ori  the  llthoi  .March 
obtained  possession  of  the  goods,  and  on  the  same  11th  of  March  Mey- 
erstein, for  the  first  time,  discovers  the  fraud  which  has  been  perpetrated 
upon  himself.     When  he  wishes  to  obtain  possession  of  the  goods  he 


SECT.  VI.]  BARBER   V.    MEYERSTEIN.  249 

finds  that  they  have  been  removed.     And  hence,  of  course,  a  contest 
arises  between  the  two  parties. 

Then  in  that  state  of  tilings  the  question  that  arises  is  this:  The 
goods,  it  is  urged,  were  at  home  when  Abraham  was  {empowered  by  the 
Act  of  Parliament  to  give  directions  that  the  goods  should  he  placed  on 
the  wharf  as  the  goods  of  him,  the  consignee.  But,  however,  the  ques- 
tion arises  whether  these  goods  could  m  truth  be  said  then  to  be  at  home. 
It  is  said  that,  at  all  events  when  for  those  t'aw  hours  the  three;  bills  of 
lading  were  in  possession  of  Abraham,  and  the  goods  were  at  home,  as 
all  the  symbols  of  property  were  also  in  the  hands  of  Abraham,  there- 
fore the  symbol  and  the  thing  symbolized  had  become  united,  and  that, 
in  truth,  the  whole  matter  might  be  said  to  be  disposed  of.  Now  is  it 
so?  Can  it  be  said  that  when  for  those  few  hours  those  documents 
were  in  the  hands  of  Abraham,  he  had  the  control  and  proprietorship 
of  the  goods?  Certainly  when  he  first  gave  directions  for  their  being 
warehoused  in  his  name  he  was  in  no  sense  proprietor.  He  had  neither 
the  bills  of  lading,  nor  had  he  discharged  the  freight,  nor  had  he  in  any 
other  way  put  himself  in  a  situation  to  entitle  him  to  demand  the  goods. 
But  now,  having  the  bills  of  lading,  supposing  he  had  been  minded  to 
go  down  to  the  wharf  to  demand  the  goods,  what  would  have  happened  ? 
He  would  have  found  a  stop  placed  upon  the  goods  for  the  freight.  And 
what  would  have  been  his  position?  By  virtue  of  the  5th  clause  of  the 
particular  local  Act  (11  &  12  Vict.  c.  xviii.)  referring  to  this  subject,  he 
would  have  found  that  he  could  not  obtain  any  obedience  to  any  deliv- 
ery order  which  he  might  think  proper  to  give,  and  that  he  could  not 
obtain  any  warrant  of  delivery,  because  there  had  been  placed  upon  the 
goods  this  stop  for  the  freight.  The  Act  expressly  enacts  that  when  a 
stoppage  has  been  put  at  the  right  time,  namely,  before  the  issue  of  any 
warrant  for  delivery,  or  the  acceptance  of  any  order,  then  no  wharfinger 
shall  be  authorized  to  issue  any  warrant,  or  to  accept  any  order,  for  the 
delivery  of  any  goods  thus  subject  tc  a  lien  for  freight.  Accordingly, 
therefore,  the  goods  would  not  have  been  delivered  to  him  had  he  made 
use  of  those  bills  of  lading  instead  of  delivering  them  over  to  Meyerstein, 
and  in  that  sense,  undoubtedly,  the  goods  were  not  at  home  as  far  as 
he  was  concerned. 

Then,  the  first  proposition  of  law  being  clear,  that  an  indorsement  of 
the  bill  of  lading  carries  with  it  the  property  in  the  goods  when  the 
goods  are  at  sea,  the  next  proposition  of  law  that  we  have  to  con- 
sider is  this,  laid  down  by  all  the  judges  who  have  delivered  their  opin- 
ions in  this  case,  and.  as  it  appears  to  me,  correctly  laid  down  by  them. 
It  is  stated  by  Air.  Justice  Willes  in  his  very  elaborate  judgment,  m 
which  he  says:  ••  I  think  the  bill  of  lading  remains  in  force  at  least  so 
long  as  complete  delivery  of  possession  of  the  goods  has  not  been  made 
to  some  person  having  a  right  to  claim  them  under  it."  Air.  Justice 
Keating  says,  in  the  same  way.  that  he  considers  that  "there  can  be  no 
complete  delivery  of  goods  under  a  lull  of  lading  until  they  have  come 
to  the  hands  of  some  person  who  has  a  right  to  the  possession  under  it." 


250  BARBER   v.   MEYERSTEIN.  [CHAP.  II. 

And  afterwards,  in  the  Exchequer  Chamber,  Mr.  Baron  Martin,  putting 
the  case  on  somewhat  different  grounds,  says  :  "For  many  years  past 
there  have  been  two  symbols  of  property  in  goods  imported  ;  the  one 
the  bill  of  lading,  the  other  the  wharfinger's  certificate  or  warrant.  Until 
the  latter  is  issued  by  the  wharfinger  the  former  remains  the  only  sv-m- 
bol  of  property  in  the  goods.  When,  therefore,  Abraham  delivered  the 
bill  of  lading  to  the  plaintiff  on  the  4th  of  March,  1865,  as  a  security 
for  the  advance  then  made  to  him,  such  deliver}'  amounted  to  a  valid 
pledge  of  the  goods,  and  the  plaintiff  thereby  acquired  a  right  to  hold 
them  as  against  Abraham  and  all  persons  claiming  title  thereto  under 
him."  The  principle  seems  to  be  the  same,  according  to  the  view  which 
Mr.  Baron  Martin  takes,  which  is  this  :  There  has  been  adopted,  for  the 
convenience  of  mankind,  a  mode  of  dealing  with  property  the  possession 
of  which  cannot  be  immediately  delivered,  namely,  that  of  dealing  with 
symbols  of  the  propert}*.  In  the  case  of  goods  which  are  at  sea  being 
transmitted  from  one  countiw  to  another,  you  cannot  deliver  actual  pos- 
session of  them,  therefore  the  bill  of  lading  is  considered  to  be  a  symbol 
of  the  goods,  and  its  delivery  to  be  a  delivery  of  them.  When  they 
have  arrived  at  the  dock,  until  they  are  delivered  to  some  person  who 
has  the  right  to  hold  them  the  bill  of  lading  still  remains  the  only  sym- 
bol that  can  be  dealt  with  by  way  of  assignment,  or  mortgage,  or  other- 
wise. As  soon  as  delivery  is  made,  or  a  warrant  for  delivery  has  been 
issued,  or  an  order  for  delivery  accepted  (which  in  law  would  be  equiva- 
lent to  delivery),  then  those  symbols  replace  the  symbol  which  before 
existed.  Until  that  time  bills  of  lading  are  effective  representations  of 
the  ownership  of  the  goods,  and  their  force  does  not  become  extinguished 
until  possession,  or  what  is  equivalent  in  law  to  possession,  has  been 
taken  on  the  part  of  the  person  having  a  right  to  demand  it. 

It  appears  to  me  that  that  is  the  legal  sense  of  the  transaction.  The 
ship-owner  contracts  that  he  will  deliver  the  goods  on  the  payment  of 
freight.  lb;  discharges  his  contract  when  he  delivers  the  goods.  But, 
unless  he  chooses  to  waive  his  rights,  he  is  not  bound  so  to  deliver  the 
goods,  or  to  hand  them  over  to  the  person  who  is  the  original  consignee 
to  whom  he  has  contracted  to  make  the  delivery,  until  all  the  conditions 
on  which  he  contracted  to  deliver  them  are  fulfilled.  One  of  those  con- 
ditions is.  that  the  freight  should  be  paid  ;  and  until  the  freight  has  been 
paid  he  is  not  bound  to  make  the  delivery. 

Mr.  Justice  Willes  explains  what  is  the  effect  of  these  various  Acts  of 
Parliament.  These  Acts  of  Parliament  are  not  intended  to  deprive  the 
ship-owner  of  the  right  which  he  has  to  say  that  he  will  not  part  with 
the  possession  of  the  goods  until  freight  is  paid.  Accordingly,  the  local 
Acl  Brst  enacted  that  there  should  be  a  power  on  the  part  of  the  ship- 
owner to  relieve  himself  from  the  responsibility,  which  might  be  ex- 
tremely  inconvenient  to  all  parties,  of  keeping  the  goods  on  board,  when 
either  the  consignee  was  not  ascertained,  or  when,  if  ascertained,  there 
were  some  ladies  on  his  part  in  demanding  the  delivery  of  the  goods. 
In  such  a  case  the  ship-owner,  by  depositing  them  in  a  warehouse,  placed 


SECT.  VL]  BARBER  V.    MEX"ERSTEIN.  251 

them  in  such  a  condition  that  if  their  owner  could  not  be  ascertained 
the  goods  should  be  considered  as  if  they  were  still  at  sea,  in  the  abso- 
lute possession  of  the  master  to  all  intents  and  purposes.  But  if  the 
owner  of  the  goods  could  be  ascertained,  and  the  only  question  was  the 
question  of  freight,  still  the  Act  of  Parliament  provided  that  the  ship- 
owner should  be  protected,  that  he  should  not  be  bound  to  hand  over 
the  goods  absolutely,  but  that  he  should  hand  them  over  sub  modo,  with 
the  full  right  of  retaining  his  lien  on  the  goods  themselves,  and  with  the 
right  of  preventing  them  being  dealt  witli  or  removed  until  that  lien 
should  In-  satisfied.  The  legal  effect  of  the  proceeding  is  this,  that  the 
proprietor  or  consignee  may  require  the  goods  to  be  landed  at  a  wharf, 
and  to  be  warehoused  in  his  name,  but  subject  to  this  condition,  that 
the  ship-owner  still  retains  his  interest  in  the  cargo  until  his  charge  for 
freight  has  been  defrayed.  If  he  gives  notice  of  that  charge  prior  to 
any  act  being  done  by  which  the  ownership  of  the  goods  is  changed, 
prior  to  the  acceptance  of  an  order  for  delivery,  and  prior  to  the  issue 
of  a  warrant  for  delivery,  then  the  ship-owner's  lien  holds  and  attaches 
itself  to  those  goods,  and  the  goods  cannot  be  removed  ;  the  bills  of 
lading  cannot  be  considered  as  having  been  fully  spent  or  exhausted, 
because  there  remains  an  important  part  of  the  contract  unfulfilled  on 
the  part  of  the  consignee,  namely,  payment  of  the  freight  in  respect  of 
which  the  contract  was  entered  into. 

That  seems  to  me  to  be  the  whole  basis  of  the  judgment  at  which  the 
learned  judges  arrived  in  the  courts  below,  and  which,  as  I  before  stated, 
was  their  unanimous  conclusion.  But  against  it  several  objections  have 
been  urged.  Jt  is  said  that  a  frightful  amount  of  fraud  may  be  perpe- 
trated if  persons  are  allowed  to  deal  in  this  way  with  bills  of  lading 
drawn  in  sets,  if  you  allow  efficacy  be  given  to  the  first  assignment  of 
one  of  those  bills,  to  the  detriment  of  persons  who  may  take,  for  value, 
subsequent  assignments  of  the  others.  All  that  we  can  say  is.  that  such 
has  been  the  law  hitherto,  and  that  the  consequences  of  the  supposed 
evil,  whatever  they  may  be,  have  not  been  considered  to  be  such  as  to 
counterbalance  the  great  advantages  and  facilities  afforded  by  the  trans- 
fer of  bills  of  lading.  There  is  no  authority  or  reason  for  holding  that 
the  person  who  first  obtains  the  assignment  of  a  bill  of  lading,  and  lias 
given  value  for  it,  shall  not  acquire  the  legal  ownership  of  the  goods  it 
represents.  It  seems  to  be  required  by  the  exigencies  of  mankind.  It 
may  be  a  satisfaction  to  be  told  by  Mr.  Justice  Willes  (though  it  is  a 
matter  upon  which  I  put  no  reliance),  that  other  nations  concur  with  us 
in  holding  that  ( whatever  inconveniences  there  may  be  attending  it), 
the  person  who  gets  the  first  assignment  for  value  is  the  person  to  be 
preferred. 

The  reasoning  of  the  learned  judges  in  this  case  establishes  clearly 
these  two  propositions:  First,  that  the  holder  of  the  firsl  assignment 
for  value  obtains  a  priority  over  those  who  obtain  possession  of  the 
other  bills.  And.  secondly  (following  the  reasoning  of  Mr.  Justice 
Willes),  ••The  wharfinger  under  these  circumstances  was,  at  the  lowest, 


252  BAKBER   V.    MEYERSTEIN.  [CHAP.  II. 

the  common  agent  for  the  ship-owner  and  for  the  consignee  or  holder 
of  the  bill  of  lading,  —  agent  for  the  consignee  or  holder,  upon  his  pro- 
ducing the  bill  of  lading  showing  that  he  was  entitled  to  the  goods,  and 
upon  his  paying  the  freight,  to  transfer  the  goods  into  his  name,  and  to 
deliver  them  to  him,  or  give  him  a  warrant  for  them,  —  and  agent  for 
the  ship-owner  to  retain  possession  of  the  goods  and  to  permit  no  one 
to  exercise  any  control  over  them  until  the  claim  for  freight  had  been 
satisfied.  During  this  period,  therefore,  the  bill  of  lading  would  not 
only,  according  to  the  usage,  and  for  the  satisfaction  of  the  wharfinger 
that  he  was  delivering  to  the  right  person,  be  a  S3Tmbol  of  possession, 
and  practically  the  key  of  the  warehouse,  but  it  would,  so  far  at  least 
as  the  ship-owner  was  concerned,  retain  its  full  and  complete  operation 
as  a  bill  of  lading,  there  having  been  no  complete  delivery  of  possession 
of  the  goods."  The  other  learned  judges  take  the  same  view  ;  and  I 
apprehend  that  the  correct  view  in  substance  is  this,  —  that  this  being 
the  possession  of  the  wharfinger,  the  bill  of  lading  remains  in  force  so 
long  as  complete  delivery  and  possession  has  not  been  given  to  some 
person  having  the  right  to  claim  such  deliveiy  and  possession. 

As  to  the  argument  founded  on  the  possibility  of  fraud,  I  agree  very 
much  with  one  of  the  learned  judges,  Mr.  Justice  Willes,  who  says 
that  as  to  any  argument  upon  that  subject,  "  all  arguments  founded 
upon  the  notion  that  the  court  is  to  pronounce  a  judgment  in  this  case 
which  will  protect  those  who  deal  with  fraudulent  people,  are  altogether 
beside  the  facts  of  this  case,  and  foreign  from  transactions  of  this  na- 
ture." I  am  afraid  that  the  protection  of  parties  against  fraud  is  a 
matter  of  difficulty  with  which  the  legislature  must  cope,  as  far  as  it 
can  possibly  do  so,  from  time  to  time,  when  frauds  of  a  serious  charac- 
ter are  practised  ;  but  the  courts  of  law,  which  have  to  administer  the 
law  as  it  exists,  cannot  alter  their  course  of  proceeding  because  those 
who  ought  to  do  that  which  is  right  and  just  to  their  neighbors  find 
means  of  defrauding  them  in  spite  of  all  the  protection  which  the  law 
may  have  thrown  around  the  innocent  holders  of  property.  Judicature 
has  no  power  to  interfere  with  the  course  of  proceeding  in  such  cases. 
It  must  be  left  to  the  legislature  alone.  But,  on  the  other  hand,  we 
should  consider  that  our  mercantile  laws,  which  are  founded  on  long 
usage,  have  been  found  to  work  well  for  the  general  convenience  of 
those  engaged  in  those  large  adventures  which  are  familiar  to  the  enter- 
prise of  this  country,  and  that  although  occasional  inconvenience  may 
have  been  caused  by  the  fraudulent  behavior  of  some  parties,  yet  these 
laws  have,  upon  the  whole,  been  felt  to  operate  beneficially. 

The  principles  which,  as  I  have  stated,  form  the  foundation  of  the 
judgment  in  the  present  case  are,  that  the  parting  with  the  symbol  of 
property  the  possession  of  which  cannot  be  delivered  is  the  parting  with 
the  property  itself;  and  that  persons  who  have  not,  a  complete  owner- 
ship and  possession  of  the  property  cannot  be  said  to  have  such  a  title 
to  that  property  as  to  divest  the  operation  of  the  symbol  to  give  a  title 
to  it,  until  something  occurs  which  brings  the  symbol  and  the  property 


SECT.  VI.]  SHEPHERD   V.    HABEISON.  253 

itself  into  contact,  —  and  that  for  the  purpose  of  so  bringing  the  prop- 
erty and  the  symbol  into  contact,  there  must  be  a  complete  concurrence 
of  title  in  the  person  who  holds  the  symbol  and  the  person  who  has  the 
right  to  demand  the  property;  and  until  that  happens  the  symbol,  as  in 
the  present  case,  has  not  exhausted  its  office. 

I  am.  therefore,  of  opinion  that  the  learned  judges  have  come  to  the 
right  conclusion,  and  I  have  to  move  your  lordships  to  affirm  the  two 
decisions  which  are  complained  of  in  this  appeal. 

Judgments  of  Court  of  Common  PI  ens  and  of  Court  of  Exchequer 
Chamber  affirmed,  and  appeal  dismissed  with  costs.1 


SHEPHERD  v.  HARRISON. 
In  the  House  of  Lords,  April  27,  28,  1871. 

[Reported  in  Law  Reports,  5  House  of  Lords,  11 6. J 

Tins  was  a  proceeding  in  error  on  a  judgment  of  the  Court  of 
Exchequer  Chamber,  which  had  confirmed  a  previous  judgment  of  the 
Court  of  Queen's  Bench,  Law  Rep.  4  Q.  B.  196-493.  The  cause  was 
tried  before  Mr.  Justice  Mellor,  at  Manchester,  in  1868,  and  a  verdict 
was  taken  for  the  plaintiff,  subject  to  a  case. 

The  plaintiff  was  a  merchant  carrying  on  business  at  Manchester 
under  the  style  of  John  Shepherd  &  Co.  The  defendants  were  the 
owners  of  the  screw  steamer  "Olinda,"  of  Liverpool.  There  had  been 
other  dealings  between  the  plaintiff  and  Paton,  Nash,  &  Co..  of  Pernara- 
buco,  and  on  those  dealings  there  was  a  credit  of  £3,000  in  favor  of  the 
plaintiff.  The  first  dealing  of  the  plaintiff  with  Paton,  Nash.  &  Co.  in 
the  article  of  cotton  appeared  to  have  taken  place  in  I860.  On  that 
occasion  the  plaintiff  received  from  George  Paton  &  Co..  of  Liverpool, 
who  were  the  agents  in  this  country  for  Paton,  Nash,  &  Co.,  of  Pernam- 
buco,  a  letter  dated  the  3d  of  May,  1865,  in  which  they  said  :  ••  Here- 
with we  beg  to  hand  you  bill  of  lading  240  bags  cotton,  per  'Spray.' 
We  presume  our  Pernambuco  friends  have  made  a  mistake  in  sending 
it  under  cover  to  us.  We  also  enclose  draft  on  30111-  good  selves  for 
£2,072  9s.  6c?.,  which  we  will  thank  you  to  return  with  the  needful." 
The  bill  was  returned  accepted,  and  in  due  time  paid.  There  seemed 
to  have  been  another  order  for  cotton  in  1865,  which,  on  account  of  the 
state  of  the  markets,  was  not  executed  ;  but  111  the  course  of  the  cor- 
respondence Paton,  Nash,  &  Co.  wrote,  on  the  14th  of  May,  1866  :  "You 
do  not  mention  how  we  are  to  reimburse  ourselves  —  whether  we  are  to 
discount  sales,  or  to  draw  on  you."  On  the  7th  of  September.  1867,  the 
plaintiff  sent  to  Paton,  Nash,  &  Co.  a  letter  desiring  them  to  purchase 

1  Lords  Chelmsford  and  Westblry  delivered  concurring  opinions.  Lord  Co- 
lons ay  also  concurred. 


254  SHEPHERD   V.    HARRISON.  [CHAP.  II. 

for  him  1 ,000  bales  of  cotton  at  a  price  specially  mentioned.  Paton  &  Co., 
on  the  28th  of  .September,  wrote  back  acknowledging  the  order,  and 
adding  :  "  You  do  not  mention  whether  part  of  the  order  is  to  go  against 
your  funds  lying  here,  but  we  suppose  you  intend  it  as  a  remittance." 
To  which,  on  the  25th  of  October,  18G7,  the  plaintiff  answered:  "Pray 
don't  make  the  mistake  you  did  before  about  our  funds  in  your  hands  ; 
they  never  were  intended  to  be  applied  to  cotton  purchases,  but  to  wait 
instructions."  Paton,  Nash,  &  Co.  proceeded  to  execute  the  order,  and 
purchased  750  bales  of  cotton,  sending  339  by  the  ship  "Capella"  and 
208  by  the  ship  "La  Plata."  On  sending  this  cotton  Paton  &  Co. 
despatched  a  letter,  dated  the  25th  of  October,  18G7,  which  ended  with 
these  words  :  "  On  reading  over  your  order  again,  we  are  impressed  that 
you  wish  us  to  draw  for  the  amount  of  invoice,  and  not  to  deduct  net 
proceeds  in  our  hands,  and  we  therefore  shall  value  on  you  on  forward- 
ing bills  lading.''  In  another  letter  of  the  same  date  they  wrote  to  say 
that  the}'  had  sent  the  cotton,  "and  beg  now  to  enclose  invoices  339 
bales  per  'Capella,'  costing  £1,616  8s.  8d.',  208  bales  per  '  La  Plata,' 
£883  7s.  \d.  We  have  drawn  upon  you  as  per  note  at  foot  for  the  same, 
to  which  we  beg  your  protection."  Two  drafts  were  enclosed,  which 
were  drawn  in  favor  of  George  Paton  &  Co.,  of  Liverpool.  The  letter 
ended  thus  :  "The  bills  lading  will  be  handed  over  to  you  by  Messrs. 
George  Paton  &  Co."  The  invoice  accompanying  this  cotton  described 
it  as  shipped  "  per  Norwegian  brig  '  Capella'  for  Liverpool,  on  account 
and  risk  of  Messrs.  John  Shepherd  &  Co."  There  was  a  similar  invoice 
as  to  the  cotton  shipped  per  "  La  Plata." 

The  bills  of  lading,  together  with  the  two  bills  of  exchange,  were  for- 
warded by  Paton,  Nash,  &  Co.  to  George  Paton  &  Co.,  and  on  the  16th 
of  November  George  Paton  &  Co.  wrote  to  the  plaintiff-.  "We  beg  to 
hand  you  herewith  bills  of  lading  for  339  bales  of  cotton  per  'Capella,' 
and  208  bales  of  cotton  per  'La  Plata,'  received  this  morning  from  our 
Pernambuco  friends.  We  also  enclose  bills  on  your  good  selves  for 
£1,616  8s.  8d.  and  £883  7s.  Id.,  to  which  please  do  the  needful,  and 
return  to  us  in  course."  These  bills  were  accepted,  and  returned  to 
George  Paton  &  Co.  in  a  letter  in  which  the  plaintiff  complained  that 
sonic  of  the  cottons  had  not  been  bought  according  to  his  instructions, 
and  added:  "In  case,  therefore,  of  any  loss  arising  from  the  sale  of 
these,  we  must  claim  against  you."  Some  correspondence,  not  in  a 
friendly  tone,  occurred  between  the  plaintiff  and  George  Paton  &  Co. 
on  the  subject  of  these  cottons.  The  remaining  200  bales  purchased  by 
Paton,  Nash,  &  Co.  were  shipped  by  them  on  board  the  "Olinda."  On 
the  12th  of  November,  1867,  Paton,  Nash,  &  Co.  wrote  a  letter  to  the 
plaint  ill',  in  which  the}T  said:  "Enclosed  please  find  invoice  ami  hill 
lading  of  200  bales  cotton,  shipped  per  'Olinda,'  S.S.,  costing  £861 
2«.  7'/.,  which  we  hope  may  prove  correct  and  satisfactory.  We  have 
advanced  tin;  brig  'Capella'  £55  6s.  6d..  as  per  receipt  enclosed,  to  he 
deducted  from  the  freight  on  your  cotton,  and  on  which  you  have  5% 
commission,  and  insurance  £2  15s.  id.,  to  cover  the  advance.    We  have 


SECT.  VI.]  SHEPHERD    V.    HARRISON.  255 

therefore  drawn  upon  you  for  £916  9.s\  Id.  in  favor  of  Messrs.  George 
Paton  &  Co.,  to  which  beg  your  protection."  The  letter  and  invoice 
were  forwarded  direct  to  the  plaintiff.  The  bill  of  lading  and  the  bill  of 
exchange  were  forwarded  to  George  Paton  &  Co.,  who  sent  them  to  the 
plaintiff.  The  invoice  referred  to  in  this  letter  was  "Invoice  of  200 
bales  cotton  shipped  per  'Olinda,'  S.S.,  for  Liverpool,  on  account  and 
risk  of  Messrs.  John  Shepherd  &  Co."  The  bill  of  lading  was  in  the 
usual  form,  and  was  thus  indorsed  :  — 

"Pernco.,  13  Novr.,  1867,  per  pro 

Paton,  Nash,  &  Co., 

A.  M.  C.  Soares, 
Geo.  Paton  &  Co." 

The  "Olinda"  arrived  at  Liverpool  on  the  5th  of  December,  and  on 
that  day  George  Paton  &  Co.  wrote  to  the  plaintiff:  "Our  Pernambueo 
letters  to  the  12th  ult.  are  just  to  hand,  and  we  beg  to  enclose  B  lading 
for  200  bales  cotton  shipped  by  Messrs.  Paton,  Nash,  &  Co.,  per  'Olinda,' 
S.S.,  on  your  account.  We  hand  also  their  draft  on  your  good  selves 
for  costs  of  the  cotton,  to  which  we  beg  your  protection  (£916  9s.  Id.)." 
On  the  6th  of  December,  1867,  the  plaintiff  answered  :  "Your  favor  of 
yesterday  is  received,  with  enclosures.  On  reference  to  invoices  and 
bills  of  exchange  which  we  have  accepted,  we  find  that  they  have  been 
drawn  in  excess  of  the  price  mentioned  in  order ;  there  is  also  a  quan- 
tity styled  'Mediums'  that  we  did  not  order  at  all.  These,  with  the 
hostile  position  you  have  taken  with  regard  to  the  208  bales  ex  '  La 
Plata,'  stand  in  the  wa}T  of  our  accepting  the  bill  of  exchange  now 
enclosed.  We  shall  place  the  200  bales  ex  '  Olinda'  in  another  broker's 
hands,  and  soon  as  we  learn  we  shall  inform  }-ou  their  opinion  of  them." 
The  plaintiff  retained  the  bill  of  lading,  and  sent  back  the  bill  of  exchange 
unaccepted,  whereupon  it  was  protested  by  George  Paton  &  Co.  The 
plaintiff  sent  the  bill  of  lading  to  his  brokers,  with  instructions  to  pay 
the  freight  and  obtain  the  cotton.  The  brokers  went  to  the  defendants 
and  paid  the  freight,  and  obtained  a  delivery  order ;  but  the  delivery 
was  stopped  by  the  intervention  of  George  Paton  &  Co.,  who  held  the 
duplicate  bill  of  lading,  and  who  undertook  to  indemnify  the  defendants. 

The  court  was  to  have  the  same  power  as  a  jury  to  draw  any  infer- 
ences of  fact. 

The  Court  of  Queen's  Bench  gave  judgment  for  the  defendants,  and 
this  judgment  was  affirmed  in  the  Exchequer  Chamber.  The  plaintiff 
thereupon  brought  error. 

Sir  R.  Palmer,  Q.  C,  and  Mr.  T.  H.  Jordan,  for  the  plaintiff  in 
error. 

Mr.  ETolker,  Q.  C,  and  Mr.  Gully,  for  the  defendants  in  error,  were 
not  called  on. 

Lord  Chelmsford.  My  lords,  your  lordships.  I  believe,  consider 
it  unnecessary  to  hear  any  argument  on  the  part  of  the  defendants.  The 
question  for  you  to  determine  is,  whether  the  defendants,  the  owners  of 


256  SHErHERD    V.    HARRISON.  [CHAP.  II. 

the  vessel  "Olinda,"  were  bound  to  deliver  to  the  plaintiff  200  bales  of 
cotton  which  were  shipped  1>}'  Paton,  Nash,  &  Co.,  from  Pernambueo, 
and  invoiced  ''on  account  and  at  the  risk"  of  the  plaintiff,  and  whether 
they  are  liable  to  an  action  for  the  non-delivery.  The  question  is  one 
entirely  of  fact,  depending  upon  the  circumstances  stated  in  the  special 
case,  and  upon  inferences  which  the  courts  below  were  at  liberty  to 
draw  from  those  facts.  [His  lordship  stated  them,  and  he  referred  par- 
ticularly to  this  letter  in  which  it  was  said:  "On  reading  over  j'our 
order  again  we  are  impressed  that  you  wish  us  to  draw  for  the  amount 
of  invoice,  and  not  to  deduct  net  proceeds  in  our  hands,  and  we  there- 
fore shall  value  on  you  on  forwarding  bills  of  lading."] 

That,  therefore,  was  the  course  of  dealing  which  thenceforth  was  to 
take  place  between  the  parties  with  regard  to  consignments  made  by 
Paton,  Nash,  &  Co.,  on  the  orders  of  Mr.  Shepherd.  Accordingly,  after 
the  cotton  was  purchased  by  Paton,  Nash,  &  Co.,  parts  of  it  were  sent 
in  two  vessels  called  the  "  Capella"  and  "  La  Plata,"  and  the  other  part 
in  the  "Olinda,"  on  which  the  present  question  arises. 

Now,  when  the  cotton  was  shipped  on  board  the  "Capella"  and  the 
"La  Plata,"  bills  of  lading  were  sent  (and  this  is  a  most  important  cir- 
cumstance), not  to  Mr.  Shepherd,  but  to  the  agents  of  Paton.  Nash,  &  Co., 
Messrs.  George  Paton  &  Co.,  of  Liverpool,  and  the  letter  of  the  25th 
of  October  announcing  that,  says:  "The  bills  lading  will  be  handed 
over  to  you  by  Messrs.  George  Paton  &  Co."  Accordingly,  George 
Paton  &  Co.  sent  the  bills  of  lading  to  the  plaintiff,  and  also  enclosed 
the  bills  for  acceptance  in  a  letter  of  the  16th  of  November,  in  which 
they  say  :  "We  beg  to  hand  you  herewith  bills  of  lading  for  339  bales 
cotton,  per  'Capella,'  and  208  bales  cotton,  per  'La  Plata,' received 
this  morning  from  our  Pernambueo  friends.  We  also  enclose  bills  on 
your  good  selves  for  £l,G16  8s.  8(7.  and  £883  7s.  Id.,  to  which  please  do 
the  needful  and  return  to  us  in  course." 

Did  Mr.  Shepherd,  the  plaintiff,  then  believe  that  he  would  not  be 
entitled  to  receive  the  cotton  upon  these  bills  of  lading  so  sent  to  him, 
without  his  accepting  the  bills  of  exchange?  Why,  what  docs  he  say  in 
his  letter?  He  says  :  "Your  favor  of  the  lGth  instant  is  to  hand,  bring- 
ing two  bills  for  acceptance,  which,  as  desired,  we  now  return  accepted, 
but  with  the  reservation  as  to  the  mediums  and  seconds  not  being  bought 
according  to  our  instructions."  And  then  he  makes  an  apology  for  not 
having  sent  the  bills  of  exchange  immediately,  for  he  says  :  "  Your  let- 
ter did  not,  arrive  on  Saturday  till  after  offices  were  closed,  say  1  p.m." 

It  appears  to  me  that  this  is  very  important  indeed,  as  showing  the 
nature  of  the  transactions  between  the  parties,  to  consider  what  was 
done  with  regard  to  a  portion  of  this  order,  and  that  the  bills  of  lading 
were  sent  to  the  agents  of  Paton,  Nash,  &  Co.,  and  not  to  the  plaintiff, 
apparently  preserving  to  Paton,  Nash,  &  Co.  the  jus  disponendi  over 
these  goods,  and  not  passing  the  actual  absolute  property  in  them  to 
the  plaintiff. 

Then,  with  regard  to  the  200  bales  of  cotton  in  question,  the  course 


SECT.  VI.]  SHEPHERD    V.    HARRISON.  257 

of  proceeding  appears  to  have  been  this  :  They  were  shipped  on  hoard 
the  defendant's  vessel,  the  "Olinda  ;"  and  a  letter  of  the  12th  of  Novem- 
ber was  written,  on  which  stress  has  been  laid  with  regard  to  one  passage 
which  it  contains:  "Enclosed  please  find  invoice  and  hill  of  lading  of 
200  bales  cotton  shipped  per  'Olinda.'"  Hence,  it  is  said  that  then: 
was  evidently  the  intention,  originally  at  all  events,  to  send  the  bill  of 
lading  to  the  plaintiff,  and  not  to  the  agents  of  Paton,  Nash,  &  Co.  But 
I  confess  it  appears  to  me  that  the  former  dealings  with  regard  to  the 
other  parcels  of  cotton  sent  by  the  "Capella"  and  the  "La  Plata,"  trans- 
mitting the  bills  of  lading  upon  those  occasions  to  the  agents  of  Paton, 
Nash,  &  Co.,  and  not  to  the  plaintiff,  very  strongly  lead  me  to  the  con- 
clusion that  it  was  a  mistake  to  say  that  they  intended  to  enclose  the 
bill  of  lading.  Probably  when  they  came  to  look  at  the  letter  they  said  : 
"Oh,  this  will  not  do  ;  we  don't  intend  to  send  the  bill  of  lading"  to  the 
plaintiff,"  and  therefore  they  altered  the  destination  of  it,  by  sending  it 
to  their  agents  instead  of  to  the  plaintiff. 

Then  the  agents,  George  Paton  &  Co.,  write  on  the  5th  of  December 
to  the  plaintiff:  "Our  Pernambuco  letters  to  12th  ult.  are  just  to  hand, 
and  we  beg  to  enclose  B/  lading  for  200  bales  cotton  shipped  by  Messrs. 
Paton,  Nash,  &  Co.,  per  'Olinda,'  S.  S.,  on  your  account.  We  hand 
also  their  draft  on  your  good  selves  for  costs  of  the  cotton,  to  which  we 
beg  your  protection."  Now,  what  must  Mr.  Shepherd  have  understood, 
having  regard  to  previous  dealings  with  respect  to  the  other  portions  of 
the  cotton?  what  must  he  have  understood  by  this  letter  of  George 
Paton  &  Co.,  the  agents,  but  this,  that  he  was  not  to  deal  with  the  bill 
of  lading  unless  he  accepted  the  bill  of  exchange  which  was  sent  at  the 
same  time?  I  think  there  can  be  no  doubt  whatever  that  tiiat  would  be 
the  fair  and  proper  impression  made  by  this  letter  on  his  mind,  having 
regard  to  previous  transactions. 

In  answer  to  that,  he  writes  to  them  :  "On  reference  to  invoices  and 
bills  of  exchange  which  we  have  accepted,  we  find  that  they  have  been 
drawn  in  excess  of  price  mentioned  in  order;  there  is  also  a  quality 
styled  'mediums'  that  we  did  not  order  at  all.  These,  with  the  hostile 
position  you  have  taken  with  regard  to  the  208  bales  ex  'La  Plata,' 
stand  in  the  way  of  our  accepting  the  bill  of  exchange  now  enclosed. 
We  shall  place  the  200  bales  ex  'Olinda'  in  another^  broker's  hands, 
and  as  soon  as  we  learn  we  shall  inform  you  their  opinion  of  them." 
Well,  he  did  so.  lie  sent  back  their  bill  of  exchange  unaccepted,  and 
then  placed  the  bill  of  lading  in  his  own  brokers'  hands,  Messrs.  Eason, 
Barry,  &  Co. 

It  has  been  said  that  upon  that  bill  of  lading,  if  the  plaintiff's  agent 
had  acted  promptly,  he  might  and  would  have  received,  and  would  have 
been  entitled  to  receive,  the  cotton  ex  the  "  Olinda."  What  would  have 
been  the  consequence  of  that,  it  is  unnecessary  for  us  to  saw  Under 
these  circumstances,  if  it  is  clear  that  he  was  not  entitled  to  use  the 
bill  of  lading  without  accepting  the  bills  of  exchange,  it  is  possible  that 
an  action  of  trover  might  have  been  brought  against  him  had  he  got 

17 


253  SHEPHERD   V.    HARRISON.  [CHAP.  II. 

possession  of  the  cotton,  and  that  the  damages  would  have  been  the 
amount  of  the  bills  of  exchange  which  he  was  bound  to  accept.  But  it 
is  unnecessary  for  us  to  consider  that  question.  Before  any  use  had 
been  made  of  the  bill  of  lading  George  Baton  &  Co.  interfered  ;  they 
produced  their  bill  of  lading,  and  demanded  possession  of  the  goods 
under  an  indemnity,  and  the  goods  were  given  up  to  them. 

The  question,  then,  is,  whether,  under  these  circumstances,  the  plain- 
tiff was  entitled  to  the  possession  of  the  goods.  The  question  with 
regard  to  the  property  may  perhaps  be  a  different  question  ;  but  the 
question  now  is.  whether  he  was  entitled  to  have  the  possession  of  the 
goods  on  the  production  of  the  bill  of  lading,  and  whether  the  defendants 
are  liable  to  an  action  of  trover  for  refusing  to  deliver  the  cotton  to  him, 
and  for  delivering  it  to  George  Baton  &  Co. 

Now  that  being,  as  I  have  already  said,  a  question  of  fact,  and  of 
inference  to  be  derived  from  the  circumstances  stated  in  the  special  case, 
we  have  had  the  opinion  of  two  courts,  —  I  should  say  the  unanimous 
opinion,  notwithstanding  some  slight  doubt  intimated  by  Baron  Cleasbv, 
—  of  nine  judges  on  the  subject,  that  the  plaintiff,  under  the  circum- 
stances, was  not  entitled  to  the  possession  of  the  cotton. 

But  it  is  said  on  the  part  of  the  plaintiff  that  the  inference  of  fact  is 
only  to  be  drawn  with  reference  to  decisions  which  have  been  made  with 
regard  to  documents  which  pass  the  property  in  goods  ;  and  we  have 
been  referred  to  cases  to  show  that  where  goods  are  shipped  on  account 
of  and  at  the  risk  of  a  consignee  the  absolute  property  in  the  goods  vests 
in  him,  subject  only  to  a  right  on  the  part  of  the  consignor  to  stop  in 
transitu.  Some  strong  cases  have  been  cited  on  that  subject,  and  par- 
ticularly two  before  Lord  Ellenborough  (Walley  v.  Montgomery.  3  East, 
585,  and  Coxe  v.  Harden,  4  East,  211,  217).  In  the  case  of  Coxe  v. 
Harden  the  consignee  had  obtained  possession  of  the  goods,  which, 
Lord  Ellenborough  said  (4  East,  211,  217),  removed  the  difficulty  which 
stood  in  the  way  of  the  consignees,  namely,  the  circumstance  of  the 
captain  having  signed  the  bills  of  lading  in  such  terms  as  did  not  entitle 
them  to  call  upon  him  for  a  delivery  under  their  bill  of  lading,  which 
was  unindorsed  ;  showing,  therefore,  that  upon  a  shipment  with  an 
invoice  on  account  and  at  the  request  of  the  consignee,  the  consignor 
may  impose  conditions  on  the  delivery  of  the  possession. 

Now,  that  this  is  always  a  question  of  intention  appears  to  me  to  be 
decided  by  the  case  of  Moakes  v.  Nicholson,  19  C.  B.  (n.  s.)  290.  In 
that  case  coals  were  sold  at  Hull,  and  shipped  on  board  a  vessel  char- 
tered by  the  buyer.  If  that  had  been  a  case  of  delivery  of  goods  to  a 
carrier  by  land,  of  course;  they  would  have  vested  in  the  buyer.  The 
coals  were  to  be  paid  for  in  cash.  One  of  three  bills  of  lading  making 
the  coals  deliverable  to  Bope,  the  buyer,  or  order,  was  sent  to  him  with 
an  account  of  the  price  of  the  coals.  lie  not  having  paid  the  amount, 
the  agent  of  the  seller  gave  notice  to  the  master  of  the  vessel  not  to 
deliver  the  coals,  and  he  accordingly  refused.  An  action  was  brought 
by  the  person  to  whom  Bope,  the  buyer,  had  sold  the  coals,  and  had 


SECT.  VI.]  GABARRON   V.    KREEFT.  259 

handed  the  bill  of  lading.  It  was  held  that  ho  was  not  entitled  to 
recover.  Chief  Justice  Erie  said:  "The  property  could  not  pass  out 
of  Josse  (the  seller)  unless  there  was  a  sale  by  him  with  the  intention 
that  the  property  should  pass  to  the  vendee.  Now,  it  was  clearly  the 
intention  of  Josse  —  and  the  jury  have  so  found  —  to  retain  the  property 
until  his  agent  in  London  should  receive  the  cash  against  the  bill  of 
lading.  If  that  was  the  clear  intention  of  Josse  the  property  did  not 
pass."' 

My  lords,  in  a  book  to  which  my  noble  and  learned  friend  near  me 
(Lord  Cairns)  has  referred  me,  and  which  appears  to  be  very  ably  writ- 
leu,  on  the  sale  of  personal  property,  the  authorities  on  the  subject  of 
reservation  of  the  jus  disponendi  are  all  collected,  and  the  whole  matter 
is  summed  up  clearly  and  distinctly  in  the  following  passage  :  "The 
following  seem  to  be  the  principles  established  by  the  foregoing  authori- 
ties :  first,  where  goods  are  delivered  by  the  vendor,  in  pursuance  of  an 
order,  to  a  common  carrier  for  delivery  to  the  buyer,  the  delivery  to  the 
carrier  passes  the  property,  he  being  the  agent  of  the  vendee  to* receive 
it,  and  the  delivery  to  him  being  equivalent  to  a  delivery  to  the  vendee  ; 
secondly,  where  goods  are  delivered  on  board  of  a  vessel  to  be  carried, 
and  a  bill  of  lading  is  taken,  the  delivery  by  the  vendor  is  not  a  delivery 
to  the  buyer,  but  to  the  captain  as  bailee  for  delivery  to  the  person 
indicated  by  the  bill  of  lading  as  the  one  for  whom  they  are  to  be  carried. 
This  principle  runs  through  all  the  cases  and  is  clearly  enunciated  by 
Baron  Parke  and  by  Mr.  Justice  Byles  "  in  two  cases  to  which  reference 
is  there  made. 

Under  these  circumstances  I  apprehend  your  lordships  can  entertain 
no  doubt  whatever  that  the  judges  of  the  Court  of  Queen's  Bench  and 
the  judges  of  the  Court  of  Exchequer  Chamber  came  to  a  right  conclusion 
upon  the  facts  which  were  before  them,  and  that  the  plaintiff  was  not 
entitled  to  recover  in  this  action  against  the  defendants  for  the  non- 
delivery to  him  of  the  cotton  in  question.  I  therefore  advise  your 
lordships  that  the  judgment  of  the  court  below  should  he  affirmed. 
Judgment  of  the  Court  of  Exchequer  Chamber  affirmed.1 


GABARRON   v.   KREEFT. 

In  the  Exchequer,  July  7,  1875. 

[Reported  in  Law  Reports,  10  Exchequer,  274.] 

Bramwkll,  B.2    It  will  be  convenient  in  this  case  briefly  to  state  the 

facts,  as  I  appreciate  them.     The  defendants  bought  from  one  Munoz 

all  the  ore  of  a  certain  mine  in  Spain,  to  he  shipped  by  Munoz  f.  o.  h. 

at  Cartagena,  on  ships  to  be  chartered  by  the  defendants  or  by  him. 

The  ore  was  to  be  paid   for  by  hills  against   hills  of  lading,  or  on  the 

1  Lords  Westbury,  Colonsai  .  ami  Cairns  delivered  concurring  opinions. 

J  <»,,  a  feigned  issue  to  try  title,  a  verdict  had  been  entered  for  the  defendant,  and 
pursuant  to  leave  reserved  a  rule  nisi  had  been  obtained  to  show  cause  whj  the  verdict 
should  not  be  set  aside  and  entered  for  the  plaintiffs  on  the  ground  that  the  property 
in  the  ore  passed  to  them  or  that  the  defendants  were  estopped  from  disputing  that  it 
so  passed. 


260  GABABRON   V.    KEEEFT.  [CHAP.  II. 

execution  of  a  charter,  and  on  a  certificate  that  there  was  enough 
ore  in  stock  to  load  the  vessel  chartered.  On  being  so  paid  for,  the 
ore  was  to  be  the  property  of  the  defendants.  Various  vessels  had 
been  loaded,  and  others  chartered,  and  various  payments  made  up  to 
March,  1872,  when  the  "  Trowbridge,"  one  of  the  chartered  shins, 
arrived  at  Cartagena.  The  payments  that  had  been  made  at  that  time 
exceeded  in  amount  the  price  of  all  the  ore  shipped  and  to  be  shipped 
in  all  the  vessels  chartered  and  not  loaded  ;  so  that  had  Munoz  shipped 
ore  on  the  "Trowbridge,"  he  would  have  been  entitled  to  no  payment 
from  the  defendants  in  respect  of  it.  He  had  ore  which  he  could  and 
ought  to  have  so  shipped,  taking  bills  of  lading  to  the  order  of  the  de- 
fendants. Instead  of  doing  this,  he,  on  the  8th  of  April,  and  before 
any  ore  was  put  on  board  the  "  Trowbridge,"  picked  a  quarrel  with  the 
defendants,  telegraphed  to  them  that  he  would  not  load  the  "Trow- 
bridge "  on  their  account,  and  though  they  telegraphed  to  him  threaten- 
ing him  if  he  did  not,  he  loaded  the  "Trowbridge"  and  took  bills  of 
lading  making  the  shipment  to  be  by  one  Sabadie,  and  the  cargo  deliv- 
erable to  Sabadie's  order.  It  is  agreed  he  had  at  the  time  of  shipment 
no  intention  to  ship  for  the  defendants.  In  giving  these  bills  of  lading 
the  captain  was  clearly  justified,  as  the  charter  said  he  was  to  sign  bills 
of  lading  as  presented.  Sabadie  was  a  sham  ;  the  ore  was  the  ore  of 
Munoz.  Munoz  indorsed  Sabadie's  name  on  the  bill  of  lading,  and 
then  his  own,  and  then  pledged  it  to  the  plaintiffs.  The  question  is, 
whether  the  plaintiffs  or  defendants   are  entitled  to  the  cargo. 

If  the  cargo  ever  belonged  to  the  defendants,  it  is  certain  that  Munoz 
could  confer  no  title  unless  by  estoppel  or  otherwise,  as  hereafter  men- 
tioned. This  is  clear  on  principle,  and  is  shown  by  Ogle  v.  Atkinson, 
5  Taunt.  759.  Did,  then,  the  ore  ever  belong  to  the  defendants? 
Certainly  not.  till  it  was  paid  for.  For  the  agreement  was  not  a  sale 
ot  specific  property,  but  an  agreement  to  sell  all  the  ore  to  be  produced. 
Did  it  become  the  property  of  the  defendants  on  being  paid  for?  The 
contract  says  it  shall.  But  it  seems  to  me  impossible  that  it  can  be 
so.  There  is  nothing  to  distinguish  the  ore  paid  for  from  that  not 
paid  for,  certainly  there  is  no  evidence  that  the  ore  put  on  the  'w  Trow- 
bridge "  was  specially  ear-marked  as  the  subject  of  the  cargo  for  it 
or  any  other  ship.  No  certificate  in  relation  to  it  was  given  as  pro- 
vided by  the  contract.  It  is  impossible  to  suppose  that  if  this  ore  had 
been  stolen  while  in  the  possession  of  Munoz,  though  after  it  was  paid 
for,  the  loss  would  have  been  the  defendants',  or  that  the  defendants 
would  not  have  had  a  right  to  reject  this  ore  and  object  to  its  being 
loaded,  or  that  Mnnoz  might  not  have  loaded  other  ore.  These  con- 
siderations seem  to  show  that  no  property  passed  in  this  ore  before  it 
was  put  on  board  the  ship.  Did  that  cause  the  property  to  pass? 
Now.  it  is  clear  ihat  Munoz  had  no  right  to  put  any  part  of  that  ore  on 
the  ship  excepl  for  the  purpose  of  its  being  delivered  to  the  defendants. 
On  the  other  hand,  it  is  equally  clear  to  me.  that  had  he  said  to  the 
captain  when  loading,  •   I  load  this  on  my  own  account,  and  not  on  the 


SECT.  VI.]  GABABBON    V.    KBEEFT.  261 

defendants',"  and  the  captain  had  taken  it  on  board,  the  loading,  to- 
gether  with  the  other  facts,  would  not  have  passed  the  property.  But 
it  docs  not  appear  that  he  said  anything  till  he  presented  the  bill  of 
lading,  and  then  he  showed  that  he  had  not  loaded  for  the  defendants, 
but  for  his  own  purposes.  If  the  property  had  passed  on  taking  the 
bill  of  lading  made  out  as  it.  is,  the  loading  was.  in  my  opinion,  nuga- 
tory. The  captain  knew  no  better,  and  was  justified  in  giving  the  bill 
of  lading  as  he  did,  but  his  doing  so  did  not  take  the  property  out  of 
the  defendants,  if  in  them,  any  more  than  it  would  if  the  ore  had  been 
bought  and  paid  for  by  the  defendants,  stored  in  their  yards,  and 
shipped  by  Munoz  as  a  mere  agent.  Ogle  v.  Atkinson,  5  Taunt.  759. 
The  question,  then,  is  reduced  to  this,  did  the  property  pass  on  actual 
shipment,  the  shipper  having  no  right  to  ship  except  to  pass  the  prop- 
erty, and  having  no  right  to  retain  possession  for  any  lien  for  the  price 
or  otherwise,  but  taking,  when  he  does  take  it,  a  bill  of  lading,  deliver- 
able otherwise  than  to  the  defendants,  to  whom  it  ought  to  have  been 
made  deliverable. 

If  this  matter  were  res  Integra,  there  would  be  strong  ground  for  con- 
tending it  did.  It  would  be  impossible  to  suppose  that  Munoz  could 
be  heard  to  sa}',  "  I  was  doing  what  was  right  if  shipping  as  your 
property,  wrong  if  shipping  as  mine,  but  it  is  the  latter  I  did."  If 
Munoz  could  not  say  this,  neither,  it  is  argued,  could  any  one  claiming 
title  under  him. 

It  is  true  that  Munoz  had  told  the  defendants  that  he  would  not  ship 
on  their  account,  but  they  had  equally  told  him  he  should,  and  should 
ship  on  no  other,  and  he  shipped.  Suppose  goods  not  specific  were 
sold  to  be  delivered  by  the  seller  into  the  buyer's  cart  when  sent  for, 
and  the  seller  said,  "  I  shall  not  put  those  goods  in  your  cart  unless 
you  pay  more  than  the  agreed  price,"  and  the  buyer  said.  ••  You  shall, 
and  I  shall  send  my  cart,"  and  did,  and  the  goods  were  put  in  it  by  the 
seller,  it  is  clear  that  the  seller  could  get  no  more  than  the  agreed  price. 
I  know  that  different  considerations  may  arise  as  to  a  cargo,  but  the 
question  as  between  Munoz  and  the  defendants  is  the  same. 

But  the  matter  is  not  res  integra,  though  there  is  no  case  precisely 
in  point.  Ellershaw  v.  Magniac,  G  Ex.  570  >?.,  certainly  is  not.  There 
the  shipper  had  shipped  a  different  cargo  to  what  he  had  agreed  to 
ship  ;  the  captain  taking  it  on  board  knew  that.  He  was  bound  to  tell 
the  shipper  to  take  it  out  or  to  give  him  bills  of  lading  deliverable  to 
him.  I  am  aware  that  a  cargo  of  linseed  was  to  be  shipped,  and  that 
some  linseed  was  shipped.  Hut  the  plaintiff  had  a  right  to  reject  a  part 
car^o.  The  case  may  be  tested  thus.  If  a  hill  of  lading  of  the  linseed 
had  been  given  deliverable  to  the  plaintiff,  he  might  have  refused  to 
receive  it.  Still  that  case  shows  that  a  shipper  rightfully  shipping  for 
a  buyer,  can  nevertheless  get  a  hill  of  lading  deliverable  to  himself. 
Neither  is  Turner  v.  Trustees  of  the  Liverpool  Docks,  •!  Ex.  ~>  I"'  .  20  L.  J. 
(Ex.)  393,  in  point.  For  there  the  shippers  had  a  right  of  hen  on  the 
goods  till  they  were  paid  for  in  the  agreed  manner.  But  that  case  also 
shows  that  goods  may  be  put  by  the  seller  on  the  buyer's  ship  with 


202  GABARRON   V.    KREEFT.  [CHAP.  II. 

nothing,  as  appears,  said  at  the  time,  and  that  nevertheless  the  seller 
may  get  a  bill  of  lading  deliverable  to  himself.  It  does  not  appear  in 
that  case  that  the  shippers  at  the  time  of  shipment  said  anything  about 
the  form  of  the  bill  of  lading  to  be  given,  or  reserved  to  themselves  any 
rigid  as  to  it. 

Then  there  is  the  case  of  Falke  v.  Fletcher,  18  C.  B.  (x.  s.)  400  ;  34 
L.  J.  (C.  P.)  140,  in  which  "Willes,  J.  (p.  409),  uses  expressions  which 
go  to  show  that  a  shipper  may  ship  saying  nothing,  and  then  demand  a 
bill  of  lading  in  exchange  for  the  mate's  receipt  in  such  form  as  he 
pleases.  Wait  v.  Baker,  2  ?]x.  1,  is  also  not  in  point,  because  there 
the  vendor  had  a  right  of  lien.  But  Parke,  B.,  said  :  "  The  delivery  of 
the  goods  on  board  the  ship  was  not  a  delivery  of  them  to  the  defend- 
ant, but  a  delivery  to  the  captain  to  be  carried  under  a  bill  of  lading, 
and  that  bill  of  lading  indicated  the  person  for  whom  they  were  to  be 
carried."  He  said  the  same  thing  in  Van  Casteel  v.  Booker.  2  Ex.  691  ; 
1«  L.  J.  (Ex.)  9.  In  Moakes  v.  Nicholson,  19  C.  B.  (x.  s.)  290  ;  34  L.  J. 
(C.  P.)  273,  it  was  held  that  retaining  the  bill  of  lading,  though  made 
out  in  the  buyer's  name,  prevented  the  passing  of  the  property.  There, 
however,  the  vendor  had  a  lien.  Mr.  Benjamin,  on  Sales  (p.  306), 
thus  sums  up  the  result:  "  Where  goods  are  delivered  on  board  of  a 
vessel  to  be  carried,  and  a  bill  of  lading  is  taken,  the  delivery  by  the 
vendor  is  not  a  delivery  to  the  buyer,  but  to  the  captain  as  bailee  for 
delivery  to  the  person  indicated  by  the  bill  of  lading,  as  the  one  for 
whom  they  are  to  be  carried."  The  cases  seem  to  me  to  show  that 
the  act  of  shipment  is  not  completed  till  the  bill  of  lading  is  given  ; 
that  if  what  is  shipped  is  the  shipper's  property  till  shipped  on  account 
of  the  shipowner  or  charterer,  it  remains  uncertain  on  whose  account  it  is 
shipped,  and  is  not  shipped  on  the  latter's  account  till  the  bill  of  lading 
is  given  deliverable  to  him. 

It  seems  to  me,  therefore,  that  in  this  case  the  property  never  passed 
to  the  defendants,  and  the  plaintiffs  are  entitled  to  recover.  I  feel 
bound  by  the  authorities,  which  perhaps  establish  a  more  convenient 
state  of  iaw  than  would  exist  if  bills  of  lading  might  be  got  deliverable 
to  one  person  while  the  property  was  in  another. 

As  to  the  question  of  estoppel,  viz.,  that  the  defendants,  having 
authorized  the  signing  of  bills  of  lading  as  presented,  have  authorized 
an  act  by  which  Munoz  has  been  able  to  deceive  the  plaintiffs,  I  am  of 
opinion  that  would  not  avail  the  plaintiffs  if  the  property  in  the  ore  had 
passed  to  the  defendants.  The  defendants  no  more  enabled  the  com- 
mission  of  a  fraud  than  they  would  have  done  if  the  ore  had  been  their 
property,  never  that  of  .Munoz.  in  their  stores,  and  Munoz  only  an  agent 
for  shipment,  and  the  charter  in  the  present  form.  What  the  defend- 
ants have  done  is,  supposing  the  property  is  theirs,  to  put  it  in  the  pos- 
sesion of  Munoz.  and  so  make  him  appear  the  owner.  But  if  I  hand  my 
watch  to  a  man  to  keep  tor  me,  though  I  in  a  sense  enable  him  to  appear 
to  he  the  owner,  yel  if  he  sells  or  pledges  it,  I  d<>  not  lose  my  property. 

I  think  judgment  should  be  for  the  plaintiffs.1 

1  Cleasdv,  15.,  ami  Kelly,  C.  B.,  delivered  concurring  opinions. 


SECT.  VI.]  OGG   V.    SHUTEE.  263 


OGG  v.  SHUTER. 
In  the  Common  Pleas,  January  22,  1875. 

[Reported  in  Law  Reports,  10  Common  Pleas,  159.] 

In  the  Court  of  Appeal,  November  23,  1875. 

[Reported  in  1  Common  Pleas  Division,  47.] 

Declaration  for  a  conversion  of  251  sacks  of  potatoes. 
Pleas  :   Not  guilty  ;  and  that  the  goods  were  not  the  plaintiffs'  as 
alleged.      Issues  thereon. 

At  the  trial,  before  Keating,  J.,  the  facts  were  as  follows:  lhe 
plaintiffs  had,  in  January,  1874,  entered  into  a  contract  with  Mons. 
Paresys  Loutre,  of  Merville,  in  France,  for  the  purchase  from  him  ot 
potatoes.  The  contract  was  contained  in  several  letters  between  the 
purchasers  and  the  vendor.  The  terms  ultimately  agreed  on  were  as 
follows,  viz.  for  twenty  tons  of  potatoes  at  84  francs  per  1,000  kilo- 
grammes, deliverable  in  the  course  of  the  current  month  free  on  board 
of  a  ship  at  Dunkirk,  payment  to  be  by  cash  against  bill  of  lading 
signed  by  the  captain.  It  was  also  stipulated  that  there  should  be  a 
part  payment  in  earnest  of  the  bargain. 

The  plaintiffs  paid  £30  in  part  payment,  and  potatoes  were  shipped 
under  the  contract  on  board  the  ship  "  Blonde,"  at  Dunkirk,  for  London, 
in  sacks  sent  over  for  the  purpose  by  the  plaintiffs,  under  a  hill  of  lading 
which  made  them  deliverable  to  order.     The  vendor  indorsed  the  bill 
of  lading  to  the  defendant,  and  instructed  him  to  present  the  draft  for 
the  balance  of  the  purchase-money  to  the  plaintiffs  against  the  bill  of 
lading.     On  the  arrival  of  the  »  Blonde  "  in  the  Thames,  and  before  her 
cargo=  was  discharged,  it  was  erroneously  supposed  by  the  plaintiffs, 
forborne  reason  or  other  which  did  not  very  clearly  appear,  that  the 
shipment  was  sixteen  sacks  short,  and,  consequently,  when  the  draft 
was  presented  by  the  defendant  they  declined  to  accept  for  the  full 
amount  on  the  ground  that  the  shipment  was  short,  but  stated  that  it 
on  discharge  of  the  camo  it  proved  that  the  full  quantity  was  on  board 
they  would  immediately  accept  the  draft,  or,  if  preferred,  that  they 
were  ready  to  pay  the  amount  of  the  purchase-money  due,  after  de- 
ducting for  the  sixteen  sacks,  immediately.     The  defendant  said  that 
if  the  shipment  proved  short  it  would  be  made  good,  but  he  would  be 
satisfied  witli  Dothing  but  immediate  acceptance  of  the  draft,  and  on 
the  plaintiffs  not  accepting,  sold  the  potatoes  forthwith;  the  price  oi 
potatoes  having  risen  considerably  in  the  mean  time.     It   appeared 
when  the  ship  was  unloaded  that  the   full  quantity  was  on   hoard,  and 
the  plaintiffs  then  claimed  the  goods,  and  were  ready  to  pay  the  price, 
but  the  goods  were  delivered  to  the  defendant's  vendee. 

On  these  facts,  the  verdict  by  consent  was  entered  for  the  plaintiffs 


264  OGG   V.    SHCTEfi.  [CHAP.  II. 

for  £32  17s.  6d.  damages,  leave  being  reserved  to  the  defendant  to 
move  to  enter  a  verdict,  on  the  ground  that  neither  the  property  nor 
the  possession  of  the  goods  had  passed  to  the  plaintiffs,  the  Court  to 
have  power  to  draw  inferences  of  fact. 

A  rule  nisi  had  been  obtained  accordingly. 

Cur.  adv.  wit. 

Lord  Coleridge,  C.  J.     The  facts  in  this  case  are  shortly  these. 
There  is  a  contract  for  the  sale  of  potatoes  by  the  person  whom  the 
defendant  represents  to   the  plaintiffs,  to  be  delivered  free  on  board 
within  a  month,  and  payment  is  to  be  by  cash  against  bill  of  lading. 
The  goods  are  shipped  in  the  plaintiffs'  sacks,  under  a  bill  of  lading, 
which  is  indorsed  to  the  defendant.     A  part  payment  of  £30  is  made. 
The  action  being  for  a  conversion  of  the  potatoes  by  the  defendant,  it 
was  objected  by  his  counsel  that  the   property  in  the  potatoes  had 
never   passed  to  the   plaintiffs.     It  was  contended  on  the  other  side 
that  the  property  had  passed,  and  that  the  vendor  had  merely  reserved 
a  lien  on  the  goods  for  the   price.     My  brother  Keating  directed  a 
verdict  for  the  plaintiffs,  reserving  leave  to  the  defendant  to  move. 
I    am  of  opinion  that  his  ruling  was  correct.     The  result  of  the  de- 
cisions which  were  cited  is,  that  the  question  whether  the  property  in 
goods  has  passed  under  a  contract  of  sale  is  a  question  of  intention  to 
be  gathered  from  all  the  circumstances,  the  expressions  made  use  of  in 
the  contract,  and  also  the  surrounding  circumstances.     In  the  case  of 
a  specific  chattel,  the  rule  is  that  the  sale  passes  the   property.     So 
also  the  general  rule,  as  laid  down  in  several  cases,  is  that,  in  the 
;il>sence  of  countervailing  circumstances,  the  specific  appropriation  of 
goods  to  the  contract,  by  their  being  placed  in  vessels  or  receptacles 
provided  by  the  purchasers,  would  pass  the  property.     Here  the  pota- 
toes were  separated  from  a  larger  bulk,  and  placed  in  the  plain  tiffs 
sacks,  which  had  been  sent  over  for  the  purpose.     In  addition  to  this 
very  strong  fact  there  is  also  the  expression  "  free  on  board  "  in  the 
contract,  which  has  in  previous  cases  been  relied  on,  not  as  absolutely 
conclusive  to  show  that  the  property  passed,  but  as  a  strong  element 
to   be  considered  in   favor  of  that   conclusion.      There   is  also    the 
further  fact  that  there  was  a  part  payment  of  £30.     All  these  are  very 
strong  circumstances  to  show  that  the  property  passed;  but  it  is  con- 
tended, on  the  other  hand,  that  the  expression,  "  cash  against  bill  of 
lading,"  in  the  contract,  is  of  itself  conclusive  to  ascertain  the  inten- 
tion  of  the  vendor;  that,  the  bill  of  lading  being  the  indicium  of  pro- 
perty, the  fact  that  the  purchaser  was  not  to  receive  it  until  he  paid 
the  price  unmistakably  indicated  the  intention  that  till  then  the  pro- 
p<  it  v  Bhould  not  pass.     In  support  of  this  view  a  great  many  cases 
and  dicta  of  judges  were  cited.     These  authorities  appear  to  me  to  go 
no  further  than  Hie  conclusion  that,  in  the  absence  of  countervailing 
circumstances,  the  stipulation  for  cash  against  bill  of  lading  won!  1 
have  been  conclusive.     In  like  manner  many  of  the  circumstances 


SECT.  VI.]  OGG   V.    SHIJTEB.  2G5 

isting  in  this  case  have  been  held,  in  the  absence  of  countervailing 
circumstances,  to  be  conclusive  evidence  of  an  intention  to  pass  the 
property.  There  is  also  another  strong  fact  agaiust  the  plaintiffs' 
contention,  viz.  that  the  bill  of  lading  was  indorsed  to  the  order  of  the 
defendant;  but  that  again  is  only  evidence  of  the  intention,  and  may 
be  rebutted  by  contrary  evidence.  The  rule  as  deducible  from  all  the 
cases,  and  as  it  is  laid  down  in  the  learned  works  of  Mr.  Justice 
Blackburn  and  Mr.  Benjamin  on  Sale,  is,  that  the  question  whether 
the  property  has  passed  being  one  of  intention  to  be  collected  from  all 
the  circumstances,  no  single  circumstance  is  necessarily  conclusive  in 
all  cases,  but  the  conclusion  to  be  drawn  must  depend  on  a  balance  of 
the  various  circumstances  on  one  side  and  the  other.  The  question  is 
therefore  one  of  fact  for  a  jury,  and  we  have  here  —  being  placed  in 
the  position  of  a  jury  —  to  determine  it  as  a  question  of  fact.  I  am 
of  opinion  that,  taken  altogether,  the  evidence  in  this  case  shows  that 
it  was  intended  by  the  parties  that  the  property  should  pass  at  Dun- 
kirk. There  was  another  point  raised  as  to  the  form  of  the  action  to 
which  it  is  necessary  to  advert.  It  was  contended  that  the  plaintiffs 
could  not  maintain  trover  because  there  was  at  least  a  lien  on  the  part 
of  the  vendor.  This  question  appears  to  me  to  depend  on  the  ques- 
tion whether  there  was  an  absolute  refusal  by  the  plaintiffs  to  accept 
the  bill  of  exchange  in  compliance  with  the  terras  of  the  contract.  If 
there  was,  our  decision  on  this  point  must  be  for  the  defendant.  The 
facts,  however,  do  not  appear  to  rae  to  show  that  there  was  such  a  re- 
fusal on  the  part  of  the  plaintiffs  to  accept  the  bill.  "When  the  pota- 
toes arrived,  it  was  supposed  by  both  parties  that  there  were  sixteen 
sacks  short.  The  plaintiffs  said  that  they  could  not  accept  the  bill  for 
the  price  of  the  full  number  when  they  were  sixteen  short ;  that  they 
were  quite  ready  immediately  to  pay  the  amount  less  the  deficiency,  or 
if  the  defendant  liked  to  wait  till  the  vessel  was  unloaded,  they 
would  accept  for  what  was  actually  on  board.  The  defendant  would 
be  satisfied  with  nothing  else  than  the  immediate  and  absolute  accept- 
ance of  the  bill  for  the  full  amount.  The  plaintiffs  never  refused  to 
comply  with  the  contract ;  and  when  it  turned  out  that  the  parties  were 
mistaken,  and  the  full  quantity  was  on  board,  they  were  perfectly 
willing  to  have  taken  the  whole.  Under  these  circumstances  it  appears 
to  me  that  the  right  of  lien  did  not  exist,  and  the  right  of  possession 
as  well  as  of  property  had  passed  to  the  plaintiffs.  This  rule  must 
therefore  be  discharged. 

Grove,  J.  I  am  of  the  same  opinion.  Mr.  "Willis  appeared  at  first 
disposed  to  contend  that  the  term  "  cash  against  bill  of  lading  "  was 
absolutely  conclusive  evidence  of  the  intention  not  to  pass  the  pro- 
perty ;  but  finding  that  he  could  not  sustain  this  view,  he  argued  that 
it  was  primd  facie  conclusive,  and  that  there  was  no  circumstance  in 
the  present  case  sufficient  to  rebut  it.  Standing  by  itself  it  might  be 
conclusive,  but  there  are  additional  facts  in  this  case.  There  is  first 
the  fact  that  the  bill  of  lading  was  indorsed  to  the  consignor's  agent, 


266  OGG   V.    SHUTER.  [CHA.P.  II. 

which  is  strongly  in  the  defendant's  favor.     But  then  there  are  the  other 
circumstances  which  appear  to  me  of  still  greater  weight  in  the  plain- 
tiffs' favor,  viz.  that  the  deliver}'  was  to  be  free  on  board,  that  there 
was  a  part  payment,  and  that  the  sacks  in  which  the  potatoes  were 
shipped   were   the  plaintiffs'.     All   these   are   extremely   strong  facts 
pointing  to  the  conclusion  that  the  property  passed,  and  one  of  these 
was  considered  so  very  strong  in  the  case  of  Browne  v.  Hare,  3  H.  & 
X.  4.S4  ;  4  II.  &  N.  822  ;  27  L.  J.  (Ex.)  372  ;  29  L.  J.  (Ex.)  6,  as  to 
make  that  almost  a  decision  in  point  to  the  present  case.     It  is  true 
that  the  cases  run  very  fine,  but  they  none  of  them,  I  think,  depart 
from  the  proposition  that  the  question  is  one  of  intention  for  the  jury, 
when    there    are  circumstances    pointing   both   ways.      The    case    of 
Browne  v.  Hare  is  very  plainly  to  that  effect.     In  that  case  the  oil, 
which  was  the  subject  of  the  contract,  was  to  be   shipped  "free  on 
board,"  and  was  to  be  paid  for  by  bill  of  exchange  on  delivery  to  the 
defendants  of  the  bill  of  lading.     It  was  so  shipped  free  on  board, 
and  the  bill  of  lading  taken  deliverable  to  shippers'  order.     So  far  the 
case  was  very  similar  to  the  present,  but  the  bill  of  lading  was  there 
indorsed  to  the   purchasers,  whereas   here  it  was  indorsed  to  the  ven- 
dor's agent.     It  was  held  that  the  property  passed  to  the  purchasers 
when  the  goods  were  placed  "  free  on  board"  in  performance  of  the 
contract,  and  that  it  was  a  question  for  the  jury  whether  the  plaintiffs 
so  shipped  the  oil  in  performance  of  their  contract  to  place  it  free  on 
board,  or  for  the  purpose  of  retaining  a  control  over  it  and  continuing 
to  be  owners   contrary  to  the  contract.     The  expression  "  free  on 
board"  appears  to  have  been  the  main  point  relied  upon  in  that  case. 
Here,  not  only  were  the  potatoes  to  be  delivered  "  free  on  board,"  but 
there  was  part  payment  and  delivery  into  plaintiffs'  sacks,  which  alone 
would  be  the  strongest  evidence,  according  to  one  class  of  decisions, 
that  the  property  passed.     The  terms  "  cash  against  bill  of  lading  " 
may  very  well  be  satisfied  by  construing  them  as  meant  to  preserve 
the  vendor's  lien,  and  so  as  not  at  all  inconsistent  with  the  other  facts 
pointing  to  an  intention  that  the  property  should  pass.1 
This  decision  was  appealed  from  : 
Milward,  < ».  C,  and  Willis,  for  the  defendant. 
Prentice,  Q.  C,  and  Hall,  for  the  plaintiff. 

The  judgment  of  the  court  (Lord  Cairns,  C. ;  Kelly,  C.B.  ;  Bram- 
well,  B.  ;  and  Blackburn,  J.)  was  delivered  by 

Lord  Cairns,  C.  In  this  case  it  appears,  from  the  judgments  be- 
low, that  the  Court  of  Common  Pleas  drew  the  inference  of  fact  that 
the  plaintiffs  were  not  in  default  in  refusing  to  accept  the  draft  for 
£34  which  was  tendered  to  them  for  acceptance  along  with  the  bill  of 
lading.  We  have  been  unable  to  reconcile  this  finding  with  the  state- 
ments in  the  case,  more  particularly  with  the  statement  in  paragraph 
I3,a  which  seems  to  us  to  show  that  the   plaintiffs  were  in   default. 

i  Di.sm.w  and  Keating,  JJ.,  delivered  i curring  opinions. 

-   I  his  related  to  the  refusal  to  accept  the  draft  on  .January  30. 


SECT.  VI.]  MIEABITA   v.    IMPERIAL   OTTOMAN   BANK.  207 

Taking  this  fact,  as  we  understand  it,  we  think  that  the  judgment  in 
favor  "of  the  plaintiffs  is  erroneous,  and  should  he  reversed.  The 
transactions  in  which  merchants  shipping  goods  on  the  orders  of 
others  protect  themselves  by  taking  a  hill  of  hiding,  making  the  goods 
deliverable  to  the  shipper's  order,  involve  property  of  immense  value, 
and  we  are  unwilling  to  decide  more  than  is  required  by  the  particular 
case.  But  we  think  this  much  is  clear,  that  where  the  shipper  takes 
and  keeps  in  his  own  or  his  agent's  hands  a  bill  of  lading  in  this  form 
to  protect  himself,  this  is  effectual  so  far  as  to  preserve  to  him  a  hold 
over  the  goods  until  the  hill  of  lading  is  handed  over  on  the  conditions 
being  fulfilled,  or  at  least  until  the  consignee  is  ready  and  willing  and 
offers  to  fulfil  these  conditions,  and  demands  the  bill  of  lading.  And 
we  think  that  such  a  hold  retained  under  the  bill  of  lading  is  not 
merely  a  right  to  retain  possession  till  those  conditions  are  fulfilled, 
but  involves. in  it  a  power  to  dispose  of  the  goods  on  the  vendee's  de- 
fault, so  long  at  least  as  the  vendee  continues  in  default.  It  is  not 
ueces'sary  in  this  case  to  consider  what  would  be  the  effect  of  an  offer 
by  the  plaintiffs  to  accept  the  draft  and  pay  the  money  before  the 
sale,  for  no  such  offer  in  this  case  was  ever  made. 

Judgment  reversed. 


MIRABITA   v.   THE   IMPERIAL   OTTOMAN    BANK. 
In  the  Court  of  Appeal,  February  18,  1878. 

[Reported  in  3  Exchequer  Division,  164.] 

Appeal  from  the  judgment  of  the  Exchequer  Division,  in  favor  of  the 
plaintiff  on  a  special  case  stated  by  an  arbitrator. 

The  plaintiff  is  a  merchant  carrying  on  business  at  Malta  and  Con- 
stantinople. The  defendants  are  a  banking  company  incorporated  by  a 
firman  of  the  Sultan,  and  carrying  on  business  at  Constantinople  with 
agencies  at  London  and  Larnaca. 
°On  the  26th  of  June,  1873,  a  contract  was  made  between  the  plain- 
tiff and  Phatsea  &  Pappa,  a  firm  at  Larnaca,  for  certain  umber  to  be 
sold  to  and  shipped  for  the  plaintiff  by  Phatsea  &  Pappa  at  Larnaca. 

On  the  7th  of  July,  1873.  the  plaintiff  wrote  to  Phatsea  &  Pappa  stat- 
im*  that  he  would  send  ships  on  receiving  advice  of  the  quantity  of 
umber  ready  for  shipment,  and  also  that  the  bills  of  lading  must  state 
that  Phatsea  &  Pappa  shipped  the  umber  "  by  order  and  on  account  of 
the  plaintiff." 

On  the  26th  of  August,  1873,  Phatsea  &  Pappa  had  600  tons  of 
umber  ready  for  delivery  and  shipment  under  the  contract,  and  they 
chartered  by  order  of  the  plaintiff  and  for  his  account  a  British  ship, 
the  »  Princess  of  Wales,"  then  lying  at  Alexandria,  to  carry  a  cargo  of 
such  umber  from  Larnaca  to  London.    The  plaintiff  approved  of  the  char- 


268  MIEABITA   V.    IMPERIAL   OTTOMAN    BANK.  [CHAP.  IL 

ter-party.  The  "  Princess  of  AVales  "  proceeded  to  Larnaca,  where  she 
took  on  board  a  cargo  of  000  tons  of  umber.  About  the  9th  of  Octo- 
ber the  plaintiff  sent  £150  to  Phatsea  &  Pappa  for  ship's  advances,  of 
which  sum  £70  was  paid  to  the  master. 

On  the  9th  of  October  the  master  signed  four  bills  of  lading  for  the 
cargo,  which  stated  the  goods  to  be  shipped  by  Phatsea  &  Pappa,  and 
to  be  delivered  "  to  order  or  assigns."  The  bills  of  lading  were  given 
to  Phatsea  &  Pappa. 

On  the  10th  of  October  the  "  Princess  of  Wales  "  sailed  from  Larnaca, 
and  on  the  14th  of  October  Phatsea  &  Pappa  informed  the  plaintiff  by 
telegram  that  the  vessel  had  left  with  600  tons  on  the  10th  instant ;  that 
they  would  shortly  receive  bills  of  lading  and  draft  at  sixty  days,  and 
requesting  them  to  insure  the  cargo.  The  plaintiff  communicated  with 
his  son,  F.  Mirabita,  trading  in  London  as  Mirabita  Brothers,  and  through 
him  effected  an  insurance  on  the  cargo. 

Phatsea  &  Pappa  drew  a  bill  of  exchange  for  280  Turkish  liras  on 
the  plaintiff,  and  indorsed  and  handed  it  with  the  bills  of  lading  to 
Corkji,  from  whom  they  had  bought  the  umber  which  formed  the  cargo. 
Phatsea  &  Pappa  had  paid  Corkji  for  the  umber,  and  they  handed 
him  the  bill  of  exchange  by  way  of  accommodation,  to  enable  him  to 
obtain  an  advance  from  the  defendants  and  in  anticipation  of  future 
supplies  of  umber. 

Corkji  discounted  the  bill  of  exchange  at  the  Larnaca  agency  of  the 
defendants'  bank,  and  with  the  bill  of  exchange  handed  them  the  bills 
of  lading,  saying  that  they  were  to  be  sent  to  Constantinople,  and 
given  up  to  the  plaintiff  on  payment  by  him  of  the  bill  of  exchange  at 
maturity. 

The  Larnaca  agency  forwarded  the  bill  of  exchange  and  bills  of  lad- 
ing to  their  bank  at  Constantinople,  Pappa  having  come  to  Constan- 
tinople and  handed  to  the  plaintiff  the  charter-party  and  invoice  of  the 
cargo,  which  stated  that  the  same  was  "  shipped  hy  order  and  on 
account  of  the  plaintiff."  The  defendants'  bank  at  Constantinople  pre- 
sented the  bill  of  exchange  to  the  plaintiff  for  acceptance,  but  he 
declined  to  accept  without  receiving  the  bills  of  lading.  The  bill  of 
exchange  and  the  bills  of  lading  were  then  returned  to  the  Larnaca 
agenc}'.  The  plaintiff  afterwards  offered  to  the  defendants'  bank  at 
Constantinople  to  pay  the  bill  of  exchange  before  maturity  on  receipt  of 
the  bills  of  lading,  but  in  consequence  of  the  documents  having  been 
returned  to  Larnaca  this  offer  could   not  be  accepted. 

It  was  then  arranged  between  the  plaintiff  and  Pappa  that  a  new  bill 
of  exchange  for  £254  lis.  should  be  drawn  by  Phatsea  &  Lappa  to  the 
order  of  Corkji  on  Mirabita  Brothers  in  London  at  two  months'  date, 
which  should  be  substituted  for  the  former  bill  for  280  Turkish  liras, 
and  notice  of  the  agreement  was  given  to  the  defendants'  bank  at 
Constantinople. 

A  new  bill  of  exchange,  dated  the  9th  of  October,  1873,  was.  in 
accordance  with  the  terms  so  agreed,  drawn  by  Phatsea  &  Pappa  and 


SECT.  VI.]  MIRABITA   V.    IMPERIAL   OTTOMAN   BANK.  269 

sent  by  them  to  Corkji,  who  handed  it  to  the  Larnaca  agency,  saying 
that  it  was  to  be  sent  with  the  bills  of  lading  to  London,  whcc  Mirabita 
Brothers  would  be  ready  to  accept  and  pay  the  bill  of  exchange  at 
maturity  against  delivery  of  bills  of  lading.  The  Larnaca  agency  ac- 
cordingly gave  up  the  first  bill  of  exchange,  and  on  the  20th  of  Novem- 
ber 1873,  forwarded  the  bill  for  £254  lis.  to  their  agency  in  London, 
and  directed  them  »  to  give  up  the  bills  of  lading  on  payment  of  the 
inclosed  bill  of  exchange." 

At  the  time  of  making  the  agreement  with  the  plaintiff  for  the  draw- 
ing  of  the  bill  of  exchange  for  £254  lis.,  as  already  mentioned,  it  was 
doubtful  whether  the  bills  of  lading  would  reach  England  before  the 
arrival  of  the  ship.  Pappa  thereupon  gave  the  plaintiff  a  letter,  addressed 
to  the  master  of  the  -  Princess  of  Wales,"  to  be  used  in  case  the  ship 
should  arrive  in  England  before  the  bills  of  lading,  which  letter  pur- 
ported to  authorize  the  master,  if  the  bills  of  lading  had  not  come  to 
hand,  to  deliver  the  cargo  to  the  plaintiff. 

On  the  3rd  of  December  the  "  Princess  of  Wales  "  reached  Gravesend, 
and  was  ordered  to  the  Millwall  Docks  by  F.  Mirabita. 

On  the  same  day  the  bill  of  exchange  for  £254  lis.,  together  with 
the  bills  of  lading,' was  delivered  by  post,  and  in  the  course  of  the  day 
was  left  at  the  office  of  Mirabita  Brothers,  with  the  following  note  at- 
tached :  "  Bill  of  lading  for  Terra  umber,  weighing  600  tons,  per  '  Prin- 
cess of  Wales.'  to  be  given  up  against  the  payment  of  attached  draft, 
£254  lis.,  on  Mirabita  Brothers." 

F.  Mirabita  returned  the  bill  of  exchange  to  the  defendants'  London 
agency,  stating  that  he  was  ready  to  pay  the  bill  at  maturity,  but  he  did 
not  then  accept' it. 

On  the  8th  of  December  the  defendants'  London  agency  gave  orders 
to  the  ship's  brokers  to  enter  cargo  in  the  name  of  the  bank,  and  on  the 
12th  the  cargo  was  entered  at  the  Custom  House  in  the  defendants' 
name  ;  but  the  defendants  took  no  other  steps  towards  taking  possession 
of  the  cargo  till  after  the  20th  of  December. 

On  the  12th  of  December  F.  Mirabita  called  on  the  defendants,  anil 
offered  to  pay  the  bill  and  receive  the  bills  of  lading.  The  defendants' 
manager  refused  to  accept  payment,  alleging  that  they  had  taken  pos- 
session of  the  cargo  and  thereby  had  made  themselves  liable  for  freight. 
They  had  done  nothing  to  take  possession  of  the  cargo  or  to  make  them 
liable  for  freight. 

On  the  18th  of  December  F.  Mirabita  again  offered  to  pay  the  bill 
of  exchange  and  to  give  a  guarantee  for  the  freight.  After  some  fur- 
ther negotiation  the  defendants  landed  the  cargo,  and  after  heavy 
charges  for  demurrage,  landing,  and  other  expenses  had  been  incurred, 
sold  the  cargo  in  bulk,  without  any  authority  from  the  plaintiff  or  F. 
Mirabita,  for  a  sum  which  was  not  sufficient  to  pay  the  amount  of 
the  bill  of  exchange,  freight,  and  expenses  ;  the  cargo  was  worth  more, 
than  the  amount  of  the  bill  of  exchange,  freight,  and  expenses,  and  if 
the  plaintiff  had  obtained  possession  of  it  he  would  have  made  a  profit 
therefrom. 


270  MIRA.BITA   V.    IMPERIAL   OTTOMAN   BANK.  [CHAP.  II. 

So  far  as  it  was  a  question  for  the  jury,  the  arbitrator  found  as  a  fact 
that  it  was  the  intention  of  Phatsea  &  Pappa  and  of  the  plaintiff  that 
the  property  in  the  cargo  of  umber  should  pass  to  the  plaintiff  upon  its 
shipment  on  board  the  tk  Princess  of  Wales,"  subject  to  a  lien  on  the 
same  for  payment  of  the  price  ;  and  their  intention  that  the  property  in 
the  cargo  should  be  vested  in  the  plaintiff  continued  from  the  time  of 
shipment  until  the  arrival  of  the  ship  in  England. 

The  court  is  to  be  at  liberty  to  draw  inferences  of  fact,  and  to  dis- 
regard the  above  finding,  if  a  jury  would  not  have  been  justified  in  com- 
ing to  such  a  conclusion  from  the  facts  above  stated.  The  question  was 
whether  the  plaintiff  is  entitled  to  recover  damages  from  the  defendants 
for  their  dealing  with  the  cargo  as  above  mentioned. 

Matthews,  Q.  C,  and  Arthur  Wilson,  for  the  defendants. 

M.  White,Q.  C. ,  and  Archibald,  for  the  plaintiff. 

Cur.  ado.  vult. 

The  following  judgments  were  delivered  :  — 

Bramwell,  L.  J.  This  case  has  been  argued  on  the  footing  that 
the  law  of  England  or  a  like  law  is  applicable,  and  we  must  so  deal 
with  it.  We  must  treat  as  the  governing  bargain  between  the  plaintiff 
and  Phatsea  &  Co.,  the  one  made  at  the  time  it  was  arranged  that  the 
payment  should  be  made  by  a  bill  at  two  months,  and  that  the  vendees 
should  not  be  entitled  to  the  600  tons  of  umber,  or  bills  of  lading  of 
them,  until  payment  of  the  bill  of  exchange.  No  question  arises  as  to 
the  defendants'  rights  ;  for  it  was  admitted,  and  properly  admitted, 
that  the  defendants  did  wrong  in  refusing  the  amount  of  the  bill,  and 
selling  the  umber.  On  the  other  hand,  there  is  no  contract  between 
the  plaintiff  and  the  defendants.  80  that  in  the  result  the  case  is 
reduced  to  this:  When  the  defendants  tortiously  disposed  of  the 
umber,  had  the  plaintiff  such  a  property  therein,  or  right  thereto,  as  to 
entitle  him  to  maintain  this  action?  It  is  argued  that  he  had  not, 
and  the  reason  given  is,  that  as  the  umber  was  not  specific  and  as- 
certained, and  as  on  shipment  the  shippers  took  a  bill  of  lading  to 
order,  and  gave  an  interest  in  it  to  Corkji,  who  transferred  it  to  the 
defendants,  no  property  passed  ;  and  for  this  a  long  series  of  author- 
ities, beginning  with  Wait  v.  Baker,  2  Ex.  1,  and  ending  with  Ogg  v. 
Shuter,  1  C.  P.  D.  47,  is  cited.  It  is  almost  superfluous  to  say  that  by 
these  authorities  I  am  bound,  that  I  pay  them  unlimited  respect,  and  I  may 
add  I  do  so  the  more  readily  as  I  think  the  rule  they  establish  is  a  bene- 
ficial one.  But  what  is  that  rule?  It  is  somewhat  variously  expressed 
as  being  either  that  the  property  remains  in  the  shipper,  or  that  he  has 
a  jus  disponendi.  Undoubtedly  he  has  a  property  or  power  which 
enables  him  to  confer  a  title  on  a  pledgee  or  vendee,  though  in  breach 
of  his  contract  with  the  vendor.  This  appears  from  Wait  V.  Baker; 
Gabarron  v.  Kreeft,  Law  Pep.  10  Ex.  271;  and  to  some  extent  from 
Ellershaw  /•.  Magniac,  6  Ex.  570.  In  the  first  case,  Parke,  B.,  ex- 
presslj'  saya  that  the  vendee  Baker  could  under  the  circumstances 
maintain  an  action  against  Lethbridge  for  having  sold  the  barley  to 


SECT.  VI.]  MIRAB1TA    V.    IMTEUIAL    OTTOMAN    BANK.  271 

Wait.  This  property  or  power  exists  then ;  and  therefore  if  the 
vendors  of  the  umber  had  sold  it  to  the  defendants  this  action  would 
not  be  maintainable.  But  in  that  case  the  defendants  would  have 
acquired  a  right,  while,  as  I  have  said,  it  is  admitted  that  no  right  in 
them  can  be  relied  on.  I  think  it  is  not  necessary  to  inquire  whether 
what  the  shipper  possesses  is  a  property,  strictly  so  called,  in  the  goods, 
or  a,  jus  disponendi,  because  I  think,  whichever  it  is,  the  result  must  be 
the  same,  for  the  following  reasons.  That  the  vendee  has  an  interest  in 
the  specific  goods  as  soon  as  they  are  shipped  is  plain.  By  the  con- 
tract they  are  at  his  risk.  If  lost  or  damaged,  he  must  bear  the  loss. 
If  specially  good,  and  above  the  average  quality  which  the  seller  was 
bound  to  deliver,  the  benefit  is  the  vendee's.  If  he  pays  the  price,  and 
the  vendor  receives  it,  not  having  transferred  the  property,  nor  created 
any  right  over  it  in  another,  the  property  vests.  It  is  found  in  this  case 
that  as  far  as  intention  went  the  property  was  to  be  in  the  plaintiff  on 
shipment.  If  the  plaintiff  had  paid,  and  the  defendants  had  accepted 
the  amount  of  the  bill  of  exchange,  it  cannot  be  doubted  that  the  prop- 
erty woidd  have  vested  in  the  plaintiff.  Why?  Not  by  any  delivery. 
None  might  have  been  made  ;  the  defendants  might  have  wrongfully 
withheld  the  bills  of  lading.  The  property  would  have  vested  by  virtue 
of  the  original  contract  of  sale.  It  follows  that  it  vested  on  tender  of 
the  price,  and  that  whether  the  vendor's  right  was  a  right  of  property 
or  a.  jus  disponendi  ;  for  whichever  it  was  it  was  their  intention  that  it 
should  cease  on  the  plaintiff's  paying  the  price,  and  therefore  it  would 
cease  unless  meanwhile  some  title  had  been  conferred  on  a  third  per- 
son to  something  more  than  the  price.  This,  though  wrongful  as 
regards  the  plaintiff,  would  have  been  valid.  But  no  such  title  exists 
here.  There  is  nothing  in  the  authorities  inconsistent  with  this.  The 
only  case  that  may  be  thought  to  seem  so  is  Wait  v.  Baker,  supra, 
where,  though  the  vendee  tendered  the  price,  he  was  held  to  have 
acquired  no  property.  But  it  is  manifest  that  in  that  case  the  vendor 
originally  took  the  bill  of  lading  to  order,  and  kept  it  in  his  possession, 
to  deal  with  as  he  thought  fit,  and  never  intended  that  the  property 
should  pass  until  he  handed  the  bill  of  lading  to  the  vendee  on  such 
terms  as  he  chose  to  exact.  Parke,  B.,  says:  "  There  is  no  pretence 
for  saying  that  Lethbridge  agreed  that  the  property  should  pass." 
"There  was  nothing  that  amounted  to  an  appropriation,  in  the  sense 
of  that  term,  which  alone  would  pass  the  property."  "  There  was  no 
agreement  between  the  two  parties  that  that  specific  cargo  should 
become  the  property  of  the  defendant,"  the  vendee.  Here  all  the  evi- 
dence shows  that  there  was  such  an  agreement.  The  arbitrator  says  it 
existed  in  fact  at  the  time  of  shipment,  but  the  subsequent  conduct  of 
both  parties  shows  it.  What  seems  decisive  is  this  :  the  plaintiff  must 
have  a  right  against  some  one;  has  he  any  against  Phatsea?  Now 
Phatsea  has  done  nothing  that  he  had  no  right  to  do.  and  he  has  done 
everything  he  was  bound  to  do,  treating  the  altered  agreement  as  irov- 
erning.     No  action  therefore  would  lie  against  him.     It  must  then  be 


272  MIRABITA    V.    IMPERIAL   OTTOMAN   BANK.  [CHAP.  II. 

the  defendants  who  are  in  the  wrong.  I  think  they  are,  that  the  prop- 
erty was  to  pass  on  payment,  and  consequently  on  tender  of  payment, 
of  the  bill  of  exchange  ;  that  the  bill  of  lading  was  handed  to  the 
Larnaca  Bank  to  be  delivered  to  the  plaintiff  on  payment  of  the  bill  of 
exchange  ;  that  therefore  the  plaintiff  can  maintain  this  action,  and  the 
judgment  should  be  affirmed.  I  would  add  that  I  agree  with  the  rea- 
soning of  my  brother  Cleasby  in  the  court  below  ;  and  I  would  further 
remark  that  I  believe  this  is  a  question  which  would  not  have  been 
open  to  the  slightest  doubt  if  the  action  had  been  brought  after  the 
coming  into  operation  of  the  Judicature  Acts.  Cotton.  L.  J.,  has 
favored  me  with  a  perusal  of  his  judgment,  and  I  entirely  agree 
with  it. 

Cotton,  L.  J.  In  this  case  the  vendors  on  shipping  the  goods,  the 
subject  of  the  contract,  took  a  bill  of  lading  requiring  the  delivery  of 
the  goods  to  be  to  their  order,  and  dealt  with  that  bill  of  lading  in  this 
way  in  order  to  secure  payment  of  the  bill  of  exchange  which  they  then 
drew  on  the  plaintiff.  The  bill  of  exchange  was  discounted  with  the 
defendants,  and  the  bill  of  lading  was  transferred  to  them  as  security 
for  the  payment  of  the  bill  of  exchange  ;  this  bill  of  exchange  having 
been  refused  acceptance,  a  second  bill  of  exchange  was  drawn  and 
given  in  lieu  of  the  first  bill,  upon  the  terms  of  the  delivery  of  the  bill 
of  lading  to  the  plaintiff  upon  payment  of  the  second  bill  of  exchange, 
and  in  ~so  dealing  with  the  bill  of  exchange  the  vendors  intended 
that  upon  payment  the  plaintiff,  the  purchaser,  should  obtain  the  goods, 
and  they  agreed,  and,  as  far  as  they  could,  transferred  to  the  purchaser 
their  right  to  insist  that  on  payment  of  the  bill  of  exchange  the  bill  of 
lading  should  be  handed  over. 

I  mention  those  facts  for  the  purpose  of  adding  this :  that  the  action 
was  instituted  before  the  passing  of  the  Judicature  Acts,  and  therefore 
it  is  simply  to  be  dealt  with  as  a  legal  question  ;  and  we  cannot  inquire 
here  how  far  the  plaintiff  has  the  right  in  equity  to  insist  that  he 
occupies  the  same  position  as  the  vendors,  and  to  insist  that  as  against 
the  pledgee  of  the  bill  of  lading  the  plaintiff,  as  transferee  of  the  right, 
lias  a  good  equitable  title,  even  if  he  has  not  a  legal  title.  In  fact  in 
the  present  case  it  simply  turns  on  this  question,  whether  the  property 
in  the  goods  in  question  has,  under  the  circumstances,  passed  to  the 
plaintiff. 

Now  I  quite  agree  with  the  judgment  of  Bramwell,  L.  J.,  but  as 
several  cases  were  cited  in  the  argument  which  it  was  contended  were 
adverse  to  the  ground  of  our  decision,  I  think  it  better  to  state  what  I 
consider  to  be  the  principle  of  those  decisions,  and  to  point  out  how 
far  that  principle  is  applicable  to  such  cases  as  this:  Under  a  contract 
for  sale  of  chattels  not  specific  the  property  does  not  pass  to  the  pur- 
chaser unless  there  is  afterwards  an  appropriation  of  the  specific  chat- 
tels to  pass  under  the  contract,  that  is,  unless  both  parties  agree  as  to 
the  specific  chattels  in  which  the  property  is  to  pass,  and  nothing  re- 
mains to  Ik*  done  in  order  to  pass  it.     In  the  case  of  such  a  contract 


SECT.  VI.]  MIRABITA  V.    IMPERIAL   OTTOMAN   BANK.  273 

the  deliver}'  by  the  vendor  to  a  common  carrier,  or  (unless  the  effect 
of  the  shipment  is  restricted  by  Hie  terms  of  the  bill  of  lading)  ship- 
ment on  board  a  ship  of,  or  chartered  for,  the  purchaser,  is  an  appro- 
priation sufficient  to  pass  the  property.     If,  however,  the  vendor,  when 

shipping  the  articles  which  he  intends  to  deliver  under  the  contract, 
takes  the  bill  of  lading  to  his  own  order,  and  does  so  not  as  agent  or 
on  behalf  of  the  purchaser,  but  on  his  own  behalf,  it  is  held  that  he 
thereby  reserves  to  himself  a  power  of  disposing  of  the  property,  and 
that  consequently  there  is  no  final  appropriation,  and  the  property  does 
not  on  shipment  pass  to  the  purchasers.  When  the  vendor  on  ship- 
ment takes  the  bill  of  lading  to  his  own  order,  he  has  the  power  of 
absolutely  disposing  of  the  cargo,  and  may  prevent  the  purchaser  from 
ever  asserting  any  right  of  property  therein  ;  and  accordingly  in  Wait 
.v.  Baker,  supra,  Ellershaw  v.  Magniac,  supra,  and  Gabarron  a. 
Ereeft,  supra  (in  each  of  which  cases  the  vendors  had  dealt  with  the 
bills  of  lading  for  their  own  benefit),  the  decisions  were  that  the  pur- 
chaser had  no  property  in  the  goods,  though  he  had  offered  to  accept 
bills  for  or  had  paid  the  price.  80,  if  the  vendor  deals  with  or  claims 
to  retain  the  bill  of  lading  in  order  to  secure  the  contract  price,  as  when 
he  sends  forward  the  bill  of  lading  with  a  bill  of  exchange  attached, 
with  directions  that  the  bill  of  lading  is  not  to  be  delivered  to  the  pur- 
chaser till  acceptance  or  payment  of  the  bill  of  exchange,  the  appro- 
priation is  not  absolute,  but,  until  acceptance  of  the  draft,  or  payment, 
or  tender  of  the  price,  is  conditional  only,  and  until  such  acceptance,  or 
payment,  or  tender,  the  property  in  the  goods  does  not  pass  to  the  pur- 
chaser ;  and  so  it  was  decided  in  Turner  v.  Trustees  of  Liverpool 
Docks,  6  Ex.  543  ;  20  L.  J.  (Ex.)  393  ;  Shepherd  v.  Harrison,  Law 
Rep.  4  Q.  B.  196  ;  Ogg  v.  Shuter,  supra.  But  if  the  bill  of  lading 
has  been  dealt  with  only  to  secure  the  contract  price,  there  is  neither 
principle  nor  authority  for  holding  that  in  such  a  case  the  goods 
shipped  for  the  purpose  of  completing  the  contract  do  not  on  payment 
or  tender  by  the  purchaser  of  the  contract  price  vest  in  him.  When 
this  occurs  there  is  a  performance  of  the  condition  subject  to  which  the 
appropriation  was  made,  and  everything  which,  according  to  the  inten- 
tion of  the  parties,  is  necessary  to  transfer  the  property  is  done  ;  and  in 
my  opinion,  under  such  circumstances,  the  property  does  on  payment  or 
tender  of  the  price  pass  to  the  purchaser. 

Apply  these  principles  to  the  present  case.  Pappa  did  not  attempt 
to  make  use  of  the  power  of  disposition  which  he  had  under  the  bill  of 
lading  for  the  purpose  of  entirely  withdrawing  the  cargo  from  the  con- 
tract. He  dealt  with  it  only  for  the  purpose  of  securing  payment  of 
the  price.  It  is  expressly  stated  in  the  special  case  that  31  r.  Corkji, 
who  acted  for  Pappa,  discounted  the  said  bill  of  exchange  at  the 
agency  of  the  defendants'  bank,  and  with  the  bill  of  exchange  handed 
them  the  bills  of  lading,  saying  that  they  were  to  be  sent  to  Con- 
stantinople and  given  up  to  the  plaintiff  on  payment  of  the  bill  of 
exchange  at  maturity. 

18 


274  GLYN,   ETC.    CO.    V.    EAST   INDIA,    ETC.    DOCK    CO.      [CHAP.  II. 

Under  these  circumstances  there  was  an  appropriation  by  the  vendors 
of  the  cargo  subject  only  to  payment  of  the  price.  This  was  tendered, 
and  as  it  is  conceded  that  the  defendants  were  wrong  in  claiming  any- 
thing more,  the  plaintiff,  the  purchaser,  had  done  or  offered  to  do  all  that 
was  incumbent  on  him  to  make  the  appropriation  absolute,  and  the  prop- 
erty vested  in  him. 

Brett,  L.  J.,  concurred  that  the  judgment  of  the  Exchequer  Division 
must  be  affirmed.  Judgment  affirmed. 


GLYN,  MILLS,  CURRIE,  &   CO.  v.  THE  EAST  AND  WEST 
INDIA  DOCK  CO. 

In  the  House  of  Lords,  August  1,  1882. 

[Reported  in  7  Appeal  Cases,  591.] 

Appeal  from  the  judgment  of  the  Court  of  Appeal  (6  Q.  B.  D.  475) 
reversing  a  judgment  of  Field,  J.  (who  tried  the  case  without  a  jury), 
in  favor  of  the  appellants  (5  Q.  B.  D.  129).  The  facts  which  are  set 
out  in  the  judgments  of  Field,  J.,  and  Brett,  L.  J.,  are  shortly  as 
follows  :  — 

Sugar  was  shipped  in  Jamaica  and  consigned  to  Cottam,  Mortan,  & 
Co.,  merchants  in  London.  On  April  16,  1878,  the  master  signed  a 
set  of  three  bills  of  lading  marked  respectively  "First,"  "Second," 
and  "Third,"  making  the  sugar  deliverable  to  Cottam  &  Co.  or  their 
assigns,  freight  payable  in  London.  Each  bill  contained  the  clause, 
"  In  witness  whereof  the  master  or  purser  of  the  said  ship  hath  affirmed 
to  three  bills  of  lading,  all  of  this  tenor  and  date,  the  one  of  which  bills 
being  accomplished,  the  others  to  stand  void."  During  the  voyage 
Cottam  &  Co.  on  the  15th  of  May,  1878,  indorsed  in  blank  the  bill 
marked  "First"  to  the  appellants,  London  bankers,  in  consideration 
of  a  loan.  The  ship  arrived  at  London  on  the  27th  of  May,  and  on 
the  28th  the  master  landed  the  sugar  and  deposited  it  with  the  respond- 
ents in  their  docks,  lodging  with  them  a  copy  of  his  manifest  in  a 
printed  form  supplied  by  the  respondents.  In  the  manifest  the  names 
of  Cottam  &  Co.  appeared  as  consignees  and  as  entering  the  goods. 
At  the  foot  was  a  printed  clause:  "  I  declare  the  above  to  be  a  true 
copy  of  the  manifest  of  the  cargo  of  the  above  ship,  and  hereby  autho- 
rize' the  East  and  West  India  Dock  Company  to  deliver  the  same  to 
the  consignees  as  above  or  to  the  holders  of  the  bills  of  lading."  This 
w:is  signed  by  the  master,  the  words  "  the  consignees  as  above  or  to  " 
being  first  struck  out.  On  the  29th  the  master  lodged  with  the  re- 
spondents a  written  notice  "  pursuant  to  25  &  26  Vict.  c.  63  s.  68,  &c." 
to  detain  the  sugar  till  payment  of  the  freight.  On  the  31st  Cottam  &  Co. 
brought  the  bill  marked  "  Second,"  not  indorsed,  to  the  respondents, 
who  entered  Cottam  &  Co.  in  their  books  as  proprietors  of  the  sugar. 


SECT.  VI.]       GLYN,    ETC.    CO.    V.    EAST   INDIA,    ETC.    DOCK   CO.  2  i  5 

On  the  7th  of  Juno,  the  freight  having  been  paid  by  Cottam  &  Co.,  the 
stop  for  freight  was  removed,  in  July  the  respondents,  bonafide  and 
without  notice  or  knowledge  of  any  claim  by  the  appellants,  delivered 
the  sugar  to  Williams  &  Co.,  who  held  delivery  orders  signed  by  Cot- 
tam &  Co.  Cottam  &  Co.  having  gone  into  liquidation  in  August  the 
appellants  demanded  the  sugar  from  the  respondents,  producing  the 
hill  of  lading  marked  "First."  The  respondents  not  being  able  to  de- 
liver, the  appellants  brought  this  action  against  them  claiming  damages 
for  the  value  of  the  sugar. 

Sir  F.  Herschett,  S.  G.,  and  Benjamin,  Q.  C.  (Barnes  with  them;, 
for  the  appellants. 

Sir  11.  Giffard,  Q.  C,  and  Cohen,  Q.  C.  (Pollard  with  them),  for 
the  respondents. 

Lord  Blackburn.  My  lords,  this  is  one  of  the  cases  in  which  diffi- 
culty arises  from  the  mercantile  usage  of  making  out  a  bill  of  lading  in 
parts. 

There  is  since  the  decision  of  Lickbarrow  v.  Mason,  1  Sm.  L.  C.  8th 
ed.  p.  753,  now  nearly  one  hundred  years  ago,  no  doubt  that,  before 
there  was  any  statute  affecting  the  matter,  the  bill  of  lading  was 
a  transferable  document  of  title,  at  least  to  the  extent,  as  was  said  by 
Lord  Hatherley  in  Barber  v.  Meyerstein,  Law  Rep.  4  H  L.  326,  that. 
"  when  the  vessel  is  at  sea  and  the  cargo  has  not  yet  arrived,  the 
parting  with  the  bill  of  lading  is  parting  with  that  which  is  the  symbol 
of  property,  and  which  for  the  purpose  of  conveying  a  right  and  inter- 
est in  the  property  is  the  property  itself."  And  the  very  object  of 
making  the  bill  of  lading  in  parts  would  be  baffled  unless  the  delivery 
of  one  part  of  the  bill  of  lading,  duly  assigned,  had  the  same  effect 
as  the  delivery  of  all  the  parts  would  have  had.  And  the  conse- 
quence of  making  a  document  of  title  in  parts  is,  that  it  is  possible 
that  one  part  may  come  into  the  hands  of  one  person  who  bona  fide 
gave  value  for  it  under  the  belief  that  he  thereby  acquired  an  interest 
in  the  goods,  either  as  purchaser,  mortgagee,  or  pawnee,  and  another 
part  may  come  into  the  hands  of  another  person  who,  with  equal  bona 
fides,  gave  value  for  it  under  the  belief  that  he  thereby  acquired  a 
similar  interest.  This  cannot  well  happen,  unless  there  is  a  fraud  on 
the  part  of  those  who  pass  the  two  parts  to  different  persons  such  as 
would  in  "most  cases  bring  them  within  the  grasp  of  the  criminal  law, 
and  from  the  nature  of  the  transaction  such  a  fraud  must  speedily  be 
detected  ;  the  cases,  therefore,  in  which  it  occurs  are  not  very  frequent. 
Nevertheless,  it  does  at  times  occur,  and  there  are  cases  in  our  courts, 
where  the  rights  of  the  two  holders  have  had  to  be  considered.  The 
last  of  those  was  Barber  v.  Meyerstein,  Law  Rep.  4  II.  L.  317.  in  this 
House;  and  so  far  as  that  decision  extends,  the  law  must  be  taken 
to  be  settled. 

I  have  never  been  able  to  learn  why  merchants  and  shipowners  con- 
tinue the  practice  of  making  out  a  bill  of  lading  in  parts.  I  should 
have  thought  that,  at  least  since  the  introduction  of  quick  and  regu 


276  GLYN,    ETC.    CO.    V.    EAST    INDIA,    ETC.    DOCK    CO.       [CHAP.  II. 

lar  communication  by  steamers,  and  still  more  since  the  establishment 
of  the  electric  telegraph,  every  purpose  would  be  answered  by  making 
one  bill  of  lading  only  which  should  be  the  sole  document  of  title,  and 
taking  as  many  copies,  certified  by  the  master  to  be  true  copies,  as  it  is 
thought  convenient;  those  copies  would  suffice  for  every  legitimate 
purpose  for  which  the  other  parts  of  the  bill  can  now  be  applied,  but 
could  not  be  used  for  the  purpose  of  pretending  to  be  holder  of  a  bill 
of  lading  already  parted  with.  However,  whether  because  there  is 
some  practical  benefit  of  which  I  am  not  aware,  or  because,  as  I  sus- 
pect, merchants  dislike  to  depart  from  an  old  custom  for  fear  that  the 
novelty  may  produce  some  unforeseen  effect,  bills  of  lading  are  still 
made  out  in  parts,  and  probably  will  continue  to  be  so  made  out.  80 
long  as  this  practice  continues,  it  is  of  vast  importance  not  to  unsettle 
the  principles  which  have  been  already  settled  ;  and  when  a  new  case 
has  to  be  decided  it  is  desirable  to  be  very  cautious  as  to  what  principles 
are  applied. 

The  facts  in  the  present  case  bear  in  many  respects  a  close  resem- 
blance to  those  in  Barber  v.  Meyerstein,  Law  Rep.  4  H.  L.  317,  but 
they  are  not  quite  the  same  ;  and  the  question,  on  the  solution  of  which 
in  my  opinion  the  decision  in  the  present  case  ought  to  depend,  did  not 
arise  in  Barber  v.  Meyerstein,  Law  Rep.  4  H.  L.  317,  though  Lord 
AVcstbury  did  in  that  case  mention  it  when  he  says  (Law  Rep.  4  H.  L. 
336) :  "  There  can  be  no  doubt  therefore  that  the  first  person  who  for 
value  gets  the  transfer  of  a  bill  of  lading,  though  it  be  only  one  of  a 
set  of  three  bills,  acquires  the  property  ;  and  all  subsequent  dealings 
with  the  other  two  bills  must  in  law  be  subordinate  to  that  first  one, 
and  for  this  reason,  because  the  property  is  in  the  person  who  first 
gets  a  transfer  of  the  bill  of  lading.  It  might  possibly  happen  that  the 
shipowner  having  no  notice  of  the  first  dealing  with  the  bill  of  lading, 
may.  on  the  second  bill  being  presented  by  another  party,  be  justified 
in  delivering  the  goods  to  that  party  ;  but  although  that  may  be  a  dis- 
charge to  the  shipowner,  it  will  in  no  respect  affect  the  legal  ownership 
of  the  goods."  That  point  did  not  arise,  and  Lord  Westbury  did  not 
express  any  opinion  on  it.  He  only  mentions  it  so  as  to  show  that  it 
was  not  decided  either  way. 

In  the  present  case  Cottam  &  Co.,  on  the  loth  of  May,  1878,  applied 
in  writing  to  Glyn  &  Co.,  bankers  in  London,  for  an  advance,  on  the 
Becurity  of  certain  bills  of  lading.  From  the  terms  of  the  application  it 
is  plain  that  the  bankers  were  to  have  the  property,  with  a  power  of  sale 
in  the  goods  represented  by  the  bills  of  lading,  so  far  as  was  necessary 
to  secure  their  advance,  and  that,  subject  thereto,  Cottam  &  Co.  were 
to  remain  owners  of  all  the  rest  of  the  interest  in  the  goods  and  mighl 
do.  as  owners,  everything  consistent,  with  the  property  thus  given  to 
the  bankers.  I  do  not  think  it  necessary  to  express  any  opinion  on  a 
question  much  discussed  by  Brett,  L.  J.,  I  mean  whether  the  property 
which  the  bankers  were  to  have  was  the  whole  legal  property  in  the 
goods,  Cottam   &   Co.'s  interest  being  equitable  only,  or  whether  the 


SECT.  VI.]       GLYN,   ETC.    CO.    V.   EAST   INDIA,    ETC.    DOCK   CO. 


277 


bankers  were  only  to  have  a  special  property  as  pawnees,  Cottam  & 
Co.  having  the  legal  general  property.  Kit  her  way  the  hankers  had  a 
legal  property,  and  at  law  the  right  to  the  possession,  subject  to  the 

shipowners5  lien,  and  were  entitled  to  maintain  an  action  against  any 
one  who,  without  justification  or  legal  excuse,  deprived  thern  of  that 
right. 

Cottam  &  Co.  delivered  to  the  hankers,  as  part  of  their  security,  a 
bill  of  lading  for  twenty  hogsheads  of  sugar  by  the  "Mary  Jones," 
shipped  by  Elliot  in  Jamaica,  deliverable  to  Cottam  &  Co.  or  to  their 
assigns,  indorsed  in  blank  by  Cottam  &  Co.  This  bill  of  lading  bore 
,,n  the  face  of  it,  distinctly  printed,  the  word  "First,"  and  at  the  end 
had  the  usual  clause  "  In  witness  whereof  the  master  of  the  ship  hath 
affirmed  to  three  bills  of  lading,  all  of  this  tenor  and  date,  the  one  of 
which  hills  being  accomplished,  the  others  to  stand  void."  There  could 
be  no  doubt  therefore  that  the  hankers  had  distinct  notice  that  there 
were  two  other  parts  of  the  hill  of  lading.  It  appears  in  Barber  v. 
Meyerstein,  Law  Hep.  4  II.  L.  317,  that  in  a  similar  transaction  the 
Chartered  Mercantile  Bank,  before  making  a  similar  advance  to  Abra- 
ham, had  insisted  on  having  all  three  parts  of  the  bill  of  lading  deliv- 
ered to  them,  and  so  no  doubt  might  Glyn  &  Co.  have  done  here;  but 
I  infer  that  Abraham,  who  soon  after  was  guilty  of  a  very  gross  fraud, 
was  not  a  person  who  could  ask  any  reliance  to  be  placed  on  his  hon- 
esty ;  and  that  where  the  person  depositing  the  bill  of  lading  is  of  good 
repute,  a  hanker  would  rather  run  the  risk,  in  most  such  cases  nominal, 
of  the  depositor  having  committed  a  fraud,  than  the  risk  of  offending  a 
good  customer  by  making  inquiries  which  might  be  construed  as  imply- 
ing that  they  thought  him  capable  of  committing  a  gross  fraud.  How- 
ever this  be,  it  appears  that  Glyn  &  Co.  made  no  inquiry,  and  were 
content  to  take  the  one  part.  And  as  in  fact  neither  of  the  other  parts 
had  been  transferred,  the  security  which  Glyn  &  Co.  had  was  not  im- 
peached by  such  a  prior  transfer.  And  as  the  "  Mary  Jones"  was  then 
at  sea,  the  question  mainly  discussed  in  Barber  v.  Meyerstein,  Law 
Rep.  4  H.  L.  317,  does  not  arise  in  this  case. 

The  "Mary  Jones"  arrived  on  the  27th  of  May,  and  the  next  day 
the  master  reported  her  at  the  Customs,  and  the  goods  were  there,  for 
Customs  purposes,  entered  by  Cottam  &  Co.  as  owners.  All  this  was 
quite  right,  and  did  not  require  the  production  of  any  bill  of  lading; 
it  could  and  ought  to  have  been  done  as  well  if  the  other  parts  of  the 
hill  of  lading  had  been  delivered  to  Glyn  &  Co.,  or  had  remained  locked 
up  in  the  desk  of  the  shipper  Elliot  in  Jamaica. 

The  master  appears  to  have  been  in  a  hurry  to  get  his  vessel  empty, 
and  to  have  resolved  to  avail  himself  of  the  provisions  of  the  Merchant 
Shipping  Act.  1862,  sects.  66  to  78.  He  had  not,  in  strictness,  any 
right  to  do  so  till  default  had  been  made  in  making  entry,  which  never 
was  the  case  at  all.  or  till  default  had  been  made  in  taking  delivery 
within  seventy-two  hours  after  the  report  of  the  ship,  which  would  not 
in  this  case  be  till  the  31st  of  May.     But  the  master,  apparently  being 


278  GLYN,   ETC.    CO.    V.    EAST   INDIA,    ETC.    DOCK    CO.       l_CHAP.  II. 

ill  a  hurry,  on  the  28th  of  May,  prepared  and  signed  a  notice  to  the 
East  and  West  India  Docks  to  "  detain  all  the  undermentioned  goods 
which  shall  be  landed  in  your  docks,  now  on  board  the  ship  l  Mary 
Jones'  from  Jamaica,  whereof  I  am  master,  until  the  freight  due  thereon 
shall  be  duly  paid  or  satisfied,  in  proof  of  which  you  will  be  pleased  to 
receive  the  directions  of  James  Shepherd  &  Co.  The  whole  cargo  as  per 
bills  of  lading."  This  stop  was  lodged  with  the  dock  company  on  the 
29th  of  May. 

The  dock  company,  it  appears,  were  in  the  habit  of  requiring  the 
master  to  sign  an  authority  at  the  foot  of  a  copy  of  the  manifest.  And 
in  this  case  the  copy  manifest  was  signed  and  lodged  on  the  28th  of 
May.  It  is  not  necessary  to  inquire  what  would  have  happened  if,  be- 
fore the  seventy-two  hours  had  expired,  a  duly  authorized  person  had 
tendered  the  freight  and  demanded  delivery,  for  no  such  thing  occurred. 
And  I  think,  as  soon  as  the  seventy-two  hours  had  elapsed,  the  dock 
company  held  the  goods  under  the  provisions  of  the  Act,  just  as  much 
as  if  they  had  not  been  landed  till  then.  The  counsel  for  the  respon- 
dents wished  your  lordships  to  draw  the  inference  of  fact  that  all  this 
must  have  been  done,  not  under  the  provisions  of  the  Act,  but  by 
virtue  of  some  agreement  to  which  Cottam  &  Co.  were  a  party.  I  do 
not  see  any  evidence  of  this  ;  and  looking  at  the  manner  in  which  the 
admissions  were  made,  so  as  to  apply  not  only  to  the  "  Mary  Jones" 
but  to  two  other  ships  mentioned  in  the  6th  and  11th  paragraphs  of  the 
statement  of  defence,  I  should,  if  necessary,  draw  the  inference  that  it 
was  not  the  fact. 

Then  on  the  31st  of  May,  on  which  the  seventy-two  hours  had  ex- 
pired, Cottam  &  Co.  brought  down  and  showed  to  the  dock  company 
a  bill  of  lading  with  the  word  "second"  distinctly  printed  on  the  face 
of  it,  and  in  every  other  respect  precisely  similar  to  the  bill  at  that  time  in 
the  hands  of  Glyn  &  Co.  It  was  not  indorsed.  The  clerk  of  the  dock 
company  entered  in  the  books  of  the  company  that  Cottam  &  Co. 
were  the  proprietors  of  the  goods,  and  marked  the  bill  of  lading  with 
his  initials  and  the  date,  so  as  to  show  that  he  had  seen  it,  and  returned 
it  to  Cottam  &  Co.  It  was  proved,  what  I  think  would  have  been 
inferred  without  proof,  that  after  this  the  dock  company  would,  accord- 
ing to  their  ordinary  practice,  have  delivered  the  goods  when  the  stop 
for  freight  was  removed  to  the  order  of  Cottam  &  Co.,  unless,  in  the 
mean  time,  they  had  got  notice  that  another  bill  of  lading  was,  as  the 
witness  says,  out. 

It  appeared  in  Barber  v.  Meyerstein,  Law  Rep.  4  IT.  L.  317,  that  in 
the  case  of  Abraham,  whose  honesty  they  seem  to  have  distrusted,  the 
Chartered  Mercantile  Bank  had  lodged  a  stop;  and  so  might  Glyn  & 
(n.  have  done  in  the  present  case.  They  did  not  do  so.  And  the  stop 
for  freight  having  been  removed  the  dock  company,  though  not  till  the 
month  of  July,  delivered  the  goods  to  the  order  of  Cottam  &  Co.,  not 
having  then  either  notice  or  knowledge  of  the  fact  that  one  pari  of  the 
bill  of  lading  had  been  indorsed  to  Glyn  &  Co.,  but  having  from  the 


SECT.  VI.]       GLYN,   ETC.    CO.   V.   EAST   INDIA,    ETC.   DOCK   CO.  279 

form  of  the  bill  itself  notice  that  there  were  two  other  bills  of  lading 
either  of  which  Cottam  &  Co.,  if  dishonest  enough,  might  have  indorsed 
and  delivered  for  value  to  some  other  party. 

The  real  question,  I  think,  is,  whether  the  dock  company  were  under 
such  circumstances  justified  in  or  rather  excused  for  delivering  to  Cot- 
tain  &  Co.'s  order,  though  if  they  had  had  notice  or  knowledge  of  the 
previous  transfer  of  the  bill  of  lading  to  Glyn  &  Co.  it  would  have  been 
a  misdelivery,  for  which  they  would  have  been  responsible.  I  do  not 
think  the  dock  company  held  the  goods  by  virtue  of  an}'  contract. 
They  held  them  under  the  statute  subject  to  a  dut\'  imposed  by  the 
statute,  to  deliver  them  to  the  person  to  whom  the  shipowner  was  bound 
to  deliver  them.  And,  as  I  think,  they  were  justified,  or  rather  excused, 
by  anything  which  would  have  justified  or  excused  the  master  in  so 
delivering  them.  So  that,  I  think,  the  very  point  which  has  to  be  de- 
cided is  that  raised  by  Lord  Westbury,  namely,  what  will  excuse  or 
justify  the  master  in  delivering. 

The  case  of  Barber  v.  Meyerstein,  Law  Rep.  4  H.  L.  317,  settles 
that  the  mere  fact  that  there  were  parts  of  the  bills  in  the  hands  of  the 
mortgagor  or  pledgor  does  not  form  a  justification  or  excuse  for  an 
innocent  purchaser  from  the  mortgagor  or  pledgor,  whichever  he  was, 
taking  the  goods.  If  it  could  be  proved  that  the  other  parts  of  the  bills 
of  lading  were  left  in  the  hands  of  the  mortgagor  or  pledgor,  in  order 
that  he  might  seem  to  be  the  owner,  though  he  was  not,  a  purchaser 
from  the  person  in  whose  hands  the}-  were  thus  left  might  either  at  com- 
mon law  or  under  the  Factors'  Acts  have  a  good  title  ;  but  there  is  not 
in  this  case,  ai^  more  than  there  was  in  Barber  v.  Meyerstein,  any 
evidence  to  raise  such  a  question. 

But  the  master  is  not  in  the  position  of  a  purchaser  from  the  holder, 
or  person  supposed  to  be  the  holder,  of  a  bill  of  lading.  He  is  a  per- 
son who  has  entered  into  a  contract  with  the  shipper  to  carry  the  goods, 
and  to  deliver  them  to  the  persons  named  in  the  bill  of  lading  —  in 
this  case  Cottam  &  Co.  —  or  their  assigns,  that  is,  assigns  of  the  bill 
of  lading,  not  assigns  of  the  goods.  And  I  quite  assent  to  what  was 
said  in  the  argument  that  this  means  to  Cottam  &  Co.,  if  they  have 
not  assigned  the  bill  of  lading,  or  to  the  assign  if  they  have.  If  there 
were  only  one  part  of  the  bill  of  lading,  the  obligation  of  the  master 
under  such  a  contract  would  be  clear,  he  would  fulfil  the  contract  if  he 
delivered  to  Cottam  &  Co.  on  their  producing  the  bill  of  lading  unin- 
dorsed ;  he  would  also  fulfil  his  contract  if  he  delivered  the  goods  to 
any  one  producing  the  bill  of  lading  with  a  genuine  indorsement  by  Cot- 
tam &  Co.  lie  would  not  fulfil  his  contract  if  he  delivered  them  to  any 
one  else,  though  if  the  person  to  whom  he  delivered  was  really  entitled 
to  the  possession  of  the  goods,  no  one  might  be  entitled  to  recover 
damages  from  him  for  that  breach  of  contract.  But  at  the  request  of 
the  shipper,  and  in  conformity  with  ancient  mercantile  usage  the  mas- 
ter has  affirmed  to  three  bills  of  lading  all  of  the  same  tenor  and  date, 
the  one  of  which  bills  being  accomplished  the  others  to  stand  void. 


280  GLYN,   ETC.    CO.    V.    EAST   INDIA,    ETC,    DOCK    CO.       [CHAP.  II. 

In  Fearon  v.  Bowers,  1  Sra.  L.  C.  782,  decided  in  1753,  Lee,  C.  J.,  is 
reported  to  have  ruled  ••  that  it  appeared  by  the  evidence  that  accord- 
ing to  the  usage  of  trade  the  captain  was  not  concerned  to  examine 
who  had  the  best  right  on  the  different  bills  of  lading.  All  he  had  to 
do  was  to  deliver  the  goods  upon  one  of  the  bills  of  lading,  which  was 
done.  The  jury  were  therefore  directed  by  the  Chief  Justice  to  find  a 
verdict  for  the  defendant."  Lord  Tenterden  says  (I  quote  from  the 
5th  edition  of  Abbott  on  Shipping,  the  last  published  in  his  lifetime, 
part  3,  chap,  ix.,  sect.  24),  ;'  But  perhaps  this  rule  might  upon  further 
consideration  be  held  to  put  too  much  power  into  the  master's  hands." 
It  is  singular  enough  that  one  hundred  and  twenty-nine  years  should 
have  elapsed  without  its  having  been  necessary  for  any  court  to  say 
whether  this  rule  was  good  law.  It  was  suggested  on  the  argument 
with  great  probability  that,  especially  after  the  caution  given  immedi- 
ately after  the  passage  I  have  read  (part  3,  chap,  ix.,  sect.  25),  masters 
have  declined  to  incur  the  responsibility  of  deciding  between  two  persons 
claiming  under  different  parts  of  the  bill  of  lading,  so  that  the  case  has 
not  arisen.  If  this  rule  were  the  law,  it  would  follow  a  fortiori  that 
if  the  master  was  entitled  to  choose  between  two  conflicting  claims,  of 
both  of  which  he  had  notice,  and  deliver  to  either  holder,  he  must  lie 
justified  in  delivering  to  the  only  one  of  which  he  had  notice.  So 
that  I  think  it  is  necessary  to  consider  whether  it  is  law,  and  I  do  not 
think  it  can  be  law,  for  the  reason  given  by  Lord  Tenterden  ;  it  puts 
too  much  power  in  the  master's  hands.  Where  he  has  notice  or  prob- 
ably even  knowledge  of  the  other  indorsement,  I  think  he  must  deliver, 
at  his  peril,  to  the  rightful  holder  or  interplead.  . 

But  where  the  person  who  produces  a  bill  of  lading  is  one  who  — 
either  as  being  the  person  named  in  the  bill  of  lading  which  is  not  in- 
dorsed, or  as  actually  holding  an  indorsed  bill  —  would  be  entitled  to 
demand  delivery  under  the  contract,  unless  one  of  the  other  parts  had 
been  previously  indorsed  for  value  to  some  one  else,  and  the  master 
has  no  notice  or  knowledge  of  anything  except  that  there  are  other 
parts  of  the  bill  of  lading,  and  that  therefore  it  is  possible  that  one  of 
them  may  have  been  previously  indorsed,  1  think  the  master  cannot  be 
bound,  at  his  peril,  to  ask  for  the  other  parts. 

It  is  not  merely  that,  as  Bramwell,  L.  J.,  says  (6  Q.  B.  I).  492)  "it 
is  the  undoubted  practice  to  deliver  without  inquiry  to  any  one  who 
produces  a  bill  of  lading."  i.e.  when  no  other  is  brought  forward,  and 
that  the  evidence  given  in  Fearon  v.  Bowers,  1  Sin.  L.  C.  8th  ed.  782, 
must  have  proved  that  much,  though  it  seems  also  to  have  proved 
more;  but  that,  as  it  seems  to  me,  unless  this  was  the  practice,  the 
business  of  a  shipowner  could  not  be  carried  on,  unless  bills  of  lading 
were  made  in  only  one  part.  I  cannot  say  on  this  anything  in  addition 
to  what  Baggallay,  L.  J.,  says  (6  <v>.  B.  I),  pp.  502,  503),  and  I  quite 
assent  to  his  reasoning  there;  I  think  also  that  the  only  reasonable 
construction  to  be  put  upon  the  clause  at  the  end  of  the  bill  of  lading 
is  that  the  shipowner  stipulates  that  he  shall  not  he  liable  on  this  con- 


SECT.  VI.]       GLYN,   ETC.    CO.   V.    EAST    I  NIT  A,    ETC.    DOCK   CO. 


281 


tract  if  he  bona  fide,  and  without  notice  or  knowledge  of  anything  to 
make  it  wrong,  delivers  to  a  person  producing  one  part  of  the  bill  of 

lading,  designating  him  —  either  as  being  the  person  named  in  the  bill 
if  it  has  not  been  indorsed,  or  if  there  be  a  genuine  indorsement  as 
being  assign  —  as  the  person  to  whom  the  goods  are  to  be  delivered. 
In   that  case,  as  against  the   shipowner,  the  other  bills  are   to  stand 
void.      Even  without  that  clause  I  should  say  that  the  case  falls  within 
the  principle  laid  down  as  long  ago  as  the  reign  of  James  I.  in  Watts 
v.  Ognell,  Cro.  dac.  192.     That  depends,  says  Willes,  J.,  in  De  Nicholls 
v.  Saunders,  Law  Rep.  5  C.  P.  594,  "upon  a  rule  of  general  juris- 
prudence, not  confined  to  choses  in  action,  though  it  seems  to  have 
been  lost  sight  of  in  some  recent  cases,  viz.,  that  if  a  person  enters  into 
a  contract,  and  without  notice  of  any  assignment  fulfils  it  to  the  person 
with  whom  he  made  the  contract,  he  is  discharged  from  his  obligation." 
The  equity  of  this   is  obvious,     it  was  acted   upon   in  Town-end  v. 
Inglis,  Holt,  N.  P.  278,'  where  goods  lodged  in  the  docks  by  Reed  & 
Co.  were  by  them  sold  to  Townsend  and  a  delivery  order  was  given  by 
Reed  &  Co.  to  Townsend.     Townsend  paid  for  the  goods  to  Reed  & 
Co.'s  brokers,  who  misappropriated  the  money.     Then   Reed   &  Co. 
countermanded  the  order  and  finally  removed  the  goods  from  the  docks 
before  the  dock  company  had  any  notice  either  of  the  sale  to  Townsend 
or  of  the   delivery  order  given  to  him.      Townsend   brought   trover 
against    Heed   &  Co.   and   the   dock  company.      Gibbs,   C.  J.,  a   very 
great  commercial  lawyer,  left  to  the  jury  the  question  as  to  whether 
Townsend   was,  on  the  evidence  as  to  previous  dealings,  justified  in 
paving  the  broker,  which  the  jury  found  he  was,  and  the  plaintiff  had  a 
verdict  against  Reed  &  Co.,  but  he  directed  a  verdict  for  the  dock  com- 
pany,  saving,   "Though  the  skins  were  the  property  of  the  plaintiffs 
from  the  completion  of  the  bargain,  the  company  had  made  no  transfer, 
and  had  no  notice  of  their  possessory  title  when  they  delivered  the  skins 
to  Reed  &  Co.''     And  in  Knowles  v.  Horsfall,  5  B.  &  Aid.  139,  Abbott, 
('.  J.,  treats  this  as  indisputable.     Goods,  part  of  which  were  in  a  ware- 
house, had  been  sold  by  Dixon  to  the  plaintiff.     Abbott,  C.  J.,  says,  as  to 
the  parcel  in  the  warehouse,   kw  If  the  plaintiff  had  given  notice  of  the 
sale  to  the  warehouse  keeper,  the  latter  would  not  have  been  justified  in 
delivering  them  to  any  other  order  than  that  of  the  plaintiff,   but   not 
having  received  any  such  notice,  the  warehouse  keeper  would  have  be  en 
justified  in  delivering  them  to  the  order  of  Dixon,   who  placed  them 
there.''      I   know  of  no  case  in  which   this  principle  has  been  departed 
from   intentionally,  and  though  it  is  very  likely  that  it  may  have  been 
sometimes  lost  sight  of,  I  do  not  know  to  what  eases  Willes.  J.,  alludes. 
The  sum  involved  in  this  case  is  not  large,  but  the  amounts  advanced 
by  those  who  lend   money  on  the   security  of  bills  of  lading,   and   the 
value  of  the  goods  for  which  warehouse  keepers  and  wharfingers  become 
responsible,  are  enormous.     Which  is  the  more  important  trade  of"  the 
two  I  do  not  know,  but  the  decision  o['  this  case  must    have  an   effect 
on  both,  and  it  is  therefore  of  great  importance,  and  requires  careful 


282  GLYN,    ETC.    CO.    V.    EAST   INDIA,    ETC.    DOCK   CO.       [CHAT.  II. 

consideration.  And  that  being  so,  I  have  felt  some  diffidence  in  differ- 
ing from  the  two  learned  judges  who  had  below  come  to  a  different 
result.  Mr.  Justice  Field  seems  (5  Q.  B.  D.  135)  to  have  taken  a 
view  of  the  facts  as  to  the  way  in  which  the  goods  came  into  the  hands 
of  the  dock  company  different  from  that  which  I  have  taken,  and  con- 
sequently to  have  thought  that  the  very  important  question  suggested 
by  Lord  Westbury  did  not  arise.  Lord  Justice  Brett  thinks  (G  Q.  B.  D. 
488)  that  the  master  cannot  be  excused  as  against  the  first  assignee  of 
one  part  of  the  bill,  who  has  the  legal  right  to  the  property,  for  deliver- 
ing under  any  circumstances  to  one  who  produces  another  bill  of  lading 
bearing  a  genuine  indorsement,  unless  he  would  be  excused  in  all  cir- 
cumstances; in  other  words  unless  Fearon  v.  Bowers,  1  Sm.  L.  C.  8th 
ed.  7«s2,  is  good  law  to  its  full  extent.  In  this  I  cannot  agree.  I  think, 
as  I  have  already  said,  that  where  the  master  has  notice  that  there  has 
been  an  assignment  of  another  part  of  the  bill  of  lading,  the  master 
must  interplead  or  deliver  to  the  one  who  he  thinks  has  the  better  right, 
at  his  peril  if  he  is  wrong.  And  I  think  it  probably  would  be  the  same 
if  he  had  knowledge  that  there  had  been  such  an  assignment,  though 
no  t>ne  had  given  notice  of  it  or  as  yet  claimed  under  it.  At  all  events, 
he  would  not  be  safe,  in  such  a  case,  in  delivering  without  further  in- 
quiry. But  I  think  that  when  the  master  has  not  notice  or  knowledge 
of  anything  but  that  there  are  other  parts  of  the  bill  of  lading,  one  of 
which  it  is  possible  may  have  been  assigned,  he  is  justified  or  excused 
in  delivering  according  to  his  contract  to  the  person  appearing  to  be 
the  assign  of  the  bill  of  lading  which  is  produced  to  him. 

And  I  further  think  that  a  warehouseman  taking  the  custody  of  the 
goods  under  the  provisions  of  the  Merchant  Shipping  Act,  1802,  s.  66, 
&C-,  is  under  an  obligation  cast  upon  him  by  the  statute  to  deliver  the 
goods  to  the  same  person  to  whom  the  shipowner  was  b}'  his  contract 
bound  to  deliver  them,  and  is  justified  or  excused  by  the  same  things 
as  would  justify  or  excuse  the  master.  And  I  find,  as  a  fact,  that  this 
was  the  position  of  the  respondents  here.  And,  on  this  ratio  decidendi, 
I  think  that  the  appeal  should  be  dismissed,  with  costs. 
Judgment  appealed  from  affirmed,  and  appeal  dismissed  with  costs.1 

1  Lords  Selborne,  Cairns,  O'Hagan,  Watson,  ami  Fitzgerald  delivered 
concurring  opinions.  Lord  Cairns,  at  the  end  of  his  opinion,  said :  "Jtis  said  that 
this  will  cause  inconvenience  t<>  those  who  advance  money  upon  hills  of  lading.  I  do 
not  think  that  it  need  do  so  in  the  least.  There  are,  at  all  events,  three  courses  open 
to  them,  either  of  which  they  may  take.  The  mercantile  world  may,  if  they  think 
right,  alter  the  practice  of  giving  bills  of  lading  in  more  parts  than  one.  That  would 
be  one  course  which  might  be  taken.  But  even  supposing  that  the  hill  of  lading  is  in 
in'!'-  parts  than  one,  all  that  any  person  who  advances  money  upon  a  hill  of  lading 
will  have  to  do,  if  he  sees,  as  he  will  see,  on  the  face  of  the  hill  of  lading,  that  it  1ms 
b(  ■  signed  in  more  parts  than  one,  will  he  to  require  that  all  the  parts  are  brought  in, 
that   is  to  say,  that    all  tin-  title  deeds  .are  brought  in.      1  know  that   that   is  the  practice 

with  regard  to  other  title  deeds,  and  it  strikes  me  with  some  surprise  that  any  one 
would  advance  monej  upon  a  hill  of  lading  without  taking  that,  course  of  requiring  the 
deli\  >vy  up  of  all  the  parts.  If  the  person  advancing  the  money  does  not  choose  to  do 
that,  another  course  which  he  may  take  is,  to  he  vigilant  and  on  the  alert  and   to  take 


SECT.  VI.]  SEWELL   V.    BURDICK. 


283 


SEWELL  v.   BURDICK. 
In  the  House  of  Lords,  December  5,  1884. 

[Reported  in   10  Appeal  Cases,  7-i.] 
Appeal  by  the  defendants  from  an  order  of  the  Court  of  Appeal  (13 
q    i-    i)    [59)   reversing  a  decision  of  Field,  J.     The  facts  are  fully 
set  out  in  the  judgment  of  Field,  J.,  10  Q.  B.  D.  363.     Briefly  they 
were  as  follows  :  — 

In  September,  1H80,  Nercessiantz  shipped  machinery  on  the  respon- 
dent's ship  to  be  carried  from  London  to  Poti  in  the  Black  Sea,  under 
bills  of  lading  whereby  the  goods  were  made  deliverable  to  the  shipper 
or  assigns,  freight,  primage,  and  disbursements  to  be  paid  at  destination, 
in  default  the  owners  or  agents  to  have  an  absolute  lien  on  the  goods 
and  liberty  to  sell  by  auction  and  retain  freight  and  all  charges.  The 
hills  of  lading,  indorsed  in  blank,  were,  in  November,  1880,  deposited 
by  Nercessiantz  with  the  appellants,  bankers  in  Manchester,  as  security 
for  a  loan  of  £300  advanced  by  them  to  Nercessiantz.  The  ship  mean- 
while had  arrived  at  Poti  in  September,  and  the  goods  were  landed  and 
warehoused  at  the  Russian  custom-house  in  October.  Nercessiantz  dis- 
appeared, and  after  a  year  the  goods,  in  accordance  with  Russian  law, 
were  sold  to  pay  custom-house  duty  and  charges,  and  realized  no  more 
than  enough  for  that  purpose.  Meanwhile  the  appellants  had  indorsed 
the  bills  of  lading  to  their  agents  at  Tiflis,  with  instructions  to  protect 
their  interests,  and  had  informed  the  shipowners  that  if  the  goods  were 
sold  to  pay  freight,  &c,  the  appellants  claimed  all  the  proceeds  over  and 
above  the'amount  due  to  the  shipowners  for  freight,  &c,  but  the  appel- 
lants never  claimed  delivery  of  the  goods.  The  respondent  having 
brought  an  action  for  £174  8s.  M.  for  freight  and  charges  against  the 
appellants  as  indorsees  of  the  bills  of  lading,  Field,  J.,  who  tried  the 
case  without  a  jury,  gave  judgment  for  the  defendants.  1<»  <  >.  B.  D. 
363.  The  Court  of  Appeal  (Brett,  M.  R.,  and  Baggallay,  L.  J„  Bowen, 
L.  J.,  dissenting)  set  aside  this  judgment  and  gave  judgment  for  the 
plaintiff  for  the  amount  claimed.     13  Q.  B.  D.  159.     The  defendants 

appealed. 

Sir  F.  Herschett,  S.  G.  (Dancfam-fs  with  him),  for  the  appellants. 

r.  Hull,  Q.  C,  and  Edwyn  Jones,  for  the  respondent. 

Lord  Blackborn.  My  Lords,  the  judgment  of  Field,  J.,  -was  re- 
ran, that  lie  is  o„  the  spot  at  the  first  arrival  of  the  ship  in  the  dock.  If  those  who 
advance  money  o„  hills  of  lading  do  not  adopt  one  or  other  of  those  courses,  it  appears 
to  me  thai  if  they  suffer,  they  suffer  in  consequence  of  their  own  act." 

In  Sanders  v.  McLean,  11  (I  B.  D.  o->7.  the  Court  of  Appeal  decided  that  where  by 
a  contracl  of  .air  paj  menl  was  to  be  made  "  in  exchange  for  hills  of  helm-. '  tie-  pur- 
chaser was  bound  to  pay  when  a  duly  indorsed  hill  of  lading  was  tendered  to  him 
although  the  hill  of  lading  was  drawn  in  triplicate,  and  all  the  parts  were  not  tendered 
ur  accounted  for. 


284  SEWELL   V.   BU11DICK.  [CHAP.  II. 

versed  by  the  order  now  under  appeal.  The  case  was  tried  before  him 
without  a  jury,  and  I  think  it  is  necessary  to  see  what  he  had  to  deter- 
mine. There  was  no  question  between  vendor  and  vendee,  nor  of  stop- 
page in  transitu,  raised,  for  there  was  neither  a  vendor  nor  a  stoppage. 
The  law  and  decisions  as  to  stoppage  in  transitu  might  be  relevant  in 
construing  the  Statute  18  &  19  Vict.  c.  Ill,  but  did  not  otherwise  affect 
the  rights  of  the  parties. 

It  will  be  seen  by  reference  to  the  statement  of  claim  and  of  defence 
that  it  was  not  suggested  that  the  defendants  were,  at  the  time  the  goods 
were  shipped,  in  any  way  interested  in  the  goods  ;  nor  that  they  were, 
either  as  undisclosed  principals  or  otherwise,  parties  to  the  contract  in 
the  bill  of  lading  until  it  was  delivered  to  them,  after  the  ship  had  sailed 
and  the  goods  were  in  the  hands  of  the  shipowners  to  be  carried  under 
the  bill  of  lading  and  were  not  yet  delivered,  with  an  indorsement  in 
blank  by  Nercessiantz,  the  consignee  named  in  the  bill  of  lading. 

I  do  not  think  that,  either  at  the  trial  or  on  the  argument,  it  was  at 
all  disputed  that  at  common  law  the  remedy  of  the  shipowner  under  a 
bill  of  lading  was  by  enforcing  his  lien  upon  the  goods,  or  by  bringing 
an  action  on  the  contract  against  any  one  who,  at  the  time  when  the 
goods  were  shipped,  was  a  party  to  the  bill  of  lading,  either  as  being  on 
the  face  of  it  a  contracting  party,  or  as  being  an  undisclosed  principal  of 
such  a  party.  In  either  of  these  cases  he  might  be  su.ed  as  having  been 
from  the  beginning  a  party  to  the  contract. 

Some  attempts  had  been  made  to  say  that  the  contract  in  a  bill  of 
lading  might,  under  some  circumstances  at  least,  be  transferred  to  an 
assignee  in  a  manner  analogous  to  that  in  which  the  contract  in  a  bill  of 
exchange  was  transferred  by  the  indorsement  of  the  bill  of  exchange ; 
but  I  think  since  the  decision  in  Thompson  v.  Dominy,  14  M.  &  W.  403, 
in  1815,  it  has  been  undisputed  law  that  under  no  circumstances  could 
any  one  not  a  party  to  the  contract  from  the  beginning  sue  on  it  in  his 
own  name.  Any  action  on  the  contract  at  common  law  must  be  brought 
in  the  name  of  an  original  contractor,  and  no  action  could  be  brought  on 
the  contract  against  one  who  was  not  liable  to  be  sued  as  an  original 
contractor. 

But  ten  years  later  the  18  &  19  Vict.  c.  Ill,  was  passed.  The  pre- 
amble! states  this  as  one  of  the  objects  which  the  legislature  had  in  view. 
"  Whereas  by  the  custom  of  merchants  a  bill  of  lading  being  transfer- 
able by  indorsement  the  property  in  the  goods  may  thereby  pass  to  the 
indorsee"  (which  I  think  for  a  long  time  before  the  18  &  19  Vict.,  a.d. 
L855,  was  undisputed),  "but  nevertheless  all  rights  in  respect  of  the 
contract  contained  in  the  bill  of  lading  continue  in  the  original  shipper 
or  owner"  (this,  it  is  to  my  mind  clear,  refers  to  Thompson  V.  Dominy, 
supra),  "and  it  is  expedient  that  such  rights  should  pass  with  the 
property." 

The  mod.'  in  which  the  legislature  carry  out  the  object  thus  expressed 
in  the  preamble  is  by  sect.  1  :  "Every  consignee  of  goods  named  in  a 
bill  of  lading,  and  every  indorsee  of  a  bill  of  lading,  to  whom  the  prop- 


SECT.  VI.]  SEWELL   V.    BURDICK.  285 

ertv  in  the  goods  therein  mentioned  shall  pass  upon  or  by  reason  of 
such  consignment  or  indorsement,  shall  have  transferred  to  and  vested 
in  him  all  rights  of  suit,  and  be  subject  to  the  same  liabilities  in  respect 
of  such  goods  as  if  the  contract  contained  in  the  bill  of  lading  had  been 
made  with  himself." 

The  ease  made  on  the  statement  of  claim  was  that  "the"  property 
had  passed  upon  or  by  reason  of  the  indorsement  to  the  defendants. 
Not  that  they  were  before  that  a  party  to  the  contract  in  the  bill  of  lad- 
ing, but  that  by  virtue  of  the  Act  18  &  19  Vict,  when  the  property 
passed  they  became  subject  to  the  same  liabilities  as  if  the  contract  con- 
tained in  the  bill  of  lading  had  been  made  with  themselves. 

It  is  not  disputed  that  the  delivery  of  the  bill  of  lading  to  the  defend- 
ants with  the  indorsement  of  the  consignee  on  it  in  blank  was  an  in- 
dorsement, nor  that  whatever  interest  then  passed  to  them  still  remained 
in  them.  What  was  in  issue  was  whether  upon  or  by  reason  of  that 
indorsement  "  the"  property  passed. 

The  first  and  most  important  question  to  be  decided  in  this  case  is, 
what  is  the  true  construction  of  18  &  19  Vict.  c.  111?  Does  "the 
property"  in  the  goods  there  mean  any  legal  property  in  the  goods:  so 
as  to  be  satisfied  by  proof  that  a  legal  property  passed  accompanied  by 
a  right  of  possession  so  as  to  entitle  the  transferee  to  maintain  trover, 
though  it  was  intended  by  the  parties,  and  was  as  between  them,  to  be 
by  way  of  security  only,  the  transferor  retaining  a  right  of  redemption 
either  by  way  of  a  common  law  retention  of  the  general  property, 
though  the  pledgee  had  a  right  to  the  possession  and  a  property  as 
pledgee,  a  right  exceeding  a  lien  :  or  the  whole  property  at  law  having 
passed  by  way  of  mortgage  the  transferor  retaining  an  equity  of  re- 
demption, which  in  1855  was  an  equitable  right,  enforceable  only  in  a 
Court  of  Equity? 

I  think  that  all  the  judges  below  were  of  opinion  that  if  the  right 
reserved  was  the  general  right  to  the  property  at  law,  what  was  trans- 
ferred being  only  a  pledge  (conveying,  no  doubt,  a  right  of  property  and 
an  immediate  right  to  the  possession,  so  that  the  transferee  would  be 
entitled  to  bring  an  action  at  law  against  any  one  who  wrongfully  inter- 
fered with  his  right),  though  "«"  property,  and  "a"  property  against 
the  indorser,  passed  "  upon  and  by  reason  of  the  indorsement,"'  yet  the 
property  did  not  pass.  And  I  agree  with  them.  I  do  not  at  all  proceed 
on  the  ground  that  this  being  an  indorsement  in  blank  followed  by  a 
delivery  of  the  bill  of  lading  so  indorsed,  had  any  different  effect  from 
what  would  have  been  the  effect  if  it  had  been  an  indorsement  to  the 
appellants  by  name. 

The  case  of  The  Freedom,  Law  Rep.  3  P.  C.  594,  was  cited,  and  1 
think  there  arc  expressions  used  in  the  judgment  delivered  in  that  case 
by  Sir  Joseph  Napier  which  indicate  that  the  Judicial  Committee  were 
not  of  that  opinion.  It  i9  said  (page  599),  "The  plaintiffs  were  con- 
signees for  sale  ;  but  as  part  of  the  transaction  a  bill  of  exchange  was 
drawn  by  the  consignors  for  nearly  the  full  value  of  the  goods,  the  bills 


286  SEWELL   V.    BURDICK.  [CHAP.  II. 

of  lading  were  indorsed  by  them  and  forwarded  to  the  plaintiffs,  by 
whom  the  draft  of  the  consignors  was  accepted  and  paid  in  due  course." 
If  that  was  the  transaction  (and  whether  it  was  so  or  not,  the  Judicial 
Committee  proceeded  on  the  assumption  that  such  was  the  transaction), 
the  plaintiffs  in  The  Freedom  were  in  exactly  the  position  of  Church,  in 
the  case  of  Newsom  v.  Thornton,  G  East,  17,  the  case  to  which  I  shall 
have  to  refer  afterwards.  Church  had  the  bill  of  lading  indorsed  to  him 
as  a  factor,  or  consignee  for  sale,  and  had  therefore  a  right  to  hold  the 
goods  as  against  the  indorser  as  a  security  for  all  his  advances,  and  he 
had  authority  at  common  law  to  sell  the  goods,  and  before  the  arrival 
of  the  ship  to  transfer  the  bill  of  lading  in  furtherance  of  a  sale,  but  he 
had  no  authority  to  pledge  either  the  goods  or  the  bill  of  lading.  It  is 
true  that  by  the  Factors'  Acts  the  plaintiffs  in  The  Freedom  would  have 
had  a  power,  which  Church  had  not,  to  pledge  the  bill  of  lading,  but  as 
they  did  not  exercise  that  power  it  could  make  no  difference. 

The  judgment  then  proceeds  :  "  The  legal  title  to  the  property  in  the 
goods  specified  in  the  bills  of  lading  was  thus  transferred  to  and  vested 
in  the  plaintiffs  ;  the  right  of  suing  upon  the  contract  in  the  bills  of  lad- 
ing was  transferred  to  them  by  force  of  the  Statute  18  &  19  Vict.  c.  111." 
The  judgment  then  proceeds  to  show,  I  think  correctly,  that  the  dictum 
of  Martin,  B.,  reported  in  Fox  v.  Nott,  6  H.  &  N.  637,  was  not  neces- 
sary for  the  decision  in  Fox  v.  Nott,  and  goes  on  :  "  Their  Lordships 
are  satisfied  that  it  was  intended  by  this  Act  that  the  right  of  suing 
upon  the  contract  under  a  bill  of  lading  should  follow  the  property  in 
the  goods  therein  specified  ;  that  is  to  say,  the  legal  title  to  the  goods  as 
against  the  indorser."  It  certain!}-  seems  to  me  that  their  Lordships 
thought  that  "  the"  property  passed  within  the  meaning  of  18  &  19  Vict, 
c.  Ill,  if  any  legal  right  to  hold  as  against  the  indorser  passed. 

The  statute  which  their  Lordships  had  to  construe  was  the  24  Vict. 
c.  10,  s.  6,  which  is  in  these  terms  :  "  The  High  Court  of  Admiralty  shall 
have  jurisdiction  over  any  claim  by  the  owner  "  (i.  e.,  of  the  goods)  'k  or 
consignee  or  assignee  of  any  bill  of  lading  of  any  goods  carried  into  any 
port  in  England  or  Wales  in  any  ship,  for  damage  done  to  the  goods  or 
any  part  thereof  by  the  negligence  or  misconduct  of  or  for  any  breach 
of  duty  or  breach  of  contract  on  the  part  of  the  owner,  master,  or  crew 
of  t he  ship,  unless  it  is  shown  to  the  satisfaction  of  the  court  that  at  the 
time  of  the  institution  of  the  cause  any  owner  or  part  owner  of  the  ship 
is  domiciled  in  England  or  Wales."  It  is  not  necessary  to  put  a  con- 
st ruction  on  24  Vict.  c.  10,  s.  6. 

I  think  that  there  are  very  good  reasons  for  contending  that  a  person 
who  has  possession  of  an  indorsed  bill  of  lading  without  any  right  at  all 
to  hold  it  against  the  indorser,  without  being  owner  of  any  interest  in 
the  goods,  is  not  an  "  assignee"  within  the  meaning  of  this  enactment. 
and  consequently  that  what  T  understand  to  be  the  actual  decision  of 
Dr.  Lushington  in  The  St.  Cloud,  Brow.  &  Lush.  4,  that  such  a  person 
could  not  sue  under  the  Admiralty  Act.  may  have  been  right  enough. 
It  is  not  necessary  to  decide  that.     But  I  agree  with  what  was  said  in 


SECT.  VI.]  SEWELL   V.   BURDICK.  287 

The  Nepoter,  Law  Rep.  2  A.  &  E.  37G,  that  it  is  contrary  to  all  rules  of 
construction  to  interpolate  any  reference  to  the  Bill  of  Lading  Act  into 
the  Admiralty  Act.  I  think,  therefore,  that  the  actual  point  decided  in 
The  Freedom,  supra,  might  be  quite  right,  for  the  plaintiff  in  that  action 
had  a  property,  and  a  very  substantial  property,  in  the  goods,  as  against 
the  indorsers,  and  every  one  else,  and  was  in  every  sense  an  assignee  of 
the  bill  of  lading.  The  opinion  expressed  on  the  construction  of  the  18 
&  19  Vict.  c.  Ill,  that  in  that  Act  the  property  meant  a  legal  title  as 
against  the  indorser,  was  perhaps  unnecessary,  and,  I  think,  not 
sound. 

The  words  used  in  the  statute  are  not  such  as  prima  facie  to  express 
such  an  intention.  No  one,  in  ordinary  language,  would  say  that  when 
goods  are  pawned,  or  money  is  raised  by  mortgage  on  an  estate,  the 
property,  either  in  the  goods  or  land,  passes  to  the  pledgee  or  mort- 
gagee, and  I  cannot  think  that  the  object  of  the  enactment  was  to  enact 
that  no  security  for  a  loan  should  be  taken  on  the  transfer  of  bills  of 
lading  unless  the  lender  incurred  all  the  liabilities  of  his  borrower  on 
the  contract.  That  would  greatly,  and  I  think  unnecessarily,  hamper 
the  business  of  advancing  monej'  on  such  securities  which  the  legis- 
lature has,  by  the  Factors'  Acts,  shown  it  thinks  ought  rather  to  be 
encouraged. 

It  is  not  uncommon  to  reduce  into  writing  the  agreement  between  the 
banker  and  his  customers  as  to  the  terms  on  which  the  bills  of  lading 
deposited  by  them  as  securities  are  to  be  held.  Such  was  the  case  in 
Glyn  v.  East  and  West  India  Dock  Company,  5  Q.  B.  D.  129  ;  6  Q.  B.  D. 
475  ;  7  App.  Cas.  591,  as  to  which  I  shall  have  more  to  say  hereafter. 

When  there  is  such  a  writing,  it  is,  in  the  absence  of  fraud,  conclusive 
as  between  the  parties  as  to  what  they  intended.  And  I  do  not  in  the 
least  question. that  such  a  writing  may  be  so  expressed  as  to  show  that 
between  the  parties  the  transfer  was  a  mortgage,  though  of  goods,  in 
the  manner  with  which  everyone  is  familiar  with  regard  to  lands.  The 
equity  of  redemption  in  such  a  case  was  an  equitable  estate  only,  and 
in  1855  enforceable  in  equity,  not  at  law. 

Where  there  is  neither  a  symbolical  delivery  by  a  transfer  of  a  bill  of 
lading,  nor  an  actual  delivery  of  the  goods  themselves,  there  may  be 
(though  there  seldom  is)  a  substantial  difference  in  the  rights  of  the 
lender  according  as  the  transaction  is  of  the  one  kind  or  the  other. 

In  Howes  v.  Ball,  7  B.  &  C.  481,  Ball  sold  and  delivered  a  coach  to 
John  Howes  (since  deceased)  under  an  agreement  in  writing,  in  which 
there  was  this  clause,  "And  further  I,  John  Howes,  do  agree  that 
Thomas  Ball  do  have  and  hold  a  claim  upon  the  coach  until  the  debt  be 
duly  paid."  John  Howes  died  without  having  paid  the  debt.  Ball, 
after  his  death,  seized  the  coach,  for  which  seizure  the  action  was 
brought  by  the  executor.  Had  that  agreement  amounted  to  a  mortgage 
by  John  Howes  to  Ball,  T  take  it  there  could  have  been  no  doubt  that 
the  mortgagee  would  have  had  as  much  right  against  the  executor  of 
John  Howes  as  he  would  have  had  against  John  Howes  himself.     But  it 


28S  SEWELL   V.    BUKD1CK.  [CHAP.  II. 

was  held  that  it  did  not  amount  to  a  mortgage,  but  only  to  an  agreement 
that  Ball  should  have  a  right  of  hypothec,  and,  there  having  been  no 
deliver^'  by  Howes  to  Ball,  the  decision  was  that  though  so  long  as  John 
Howes  lived  and  held  the  property  in  the  coach  Ball  might  have  justified 
the  seizure,  as  against  him,  he  could  not  justify  a  seizure  as  against  the 
representatives. 

In  Flory  v.  Denny,  7  Ex.  581,  where  the  agreement  was  "  as  an  ad- 
ditional security  for  a  loan  to  assign  all  the  debtor's  right  and  interest 
in  a  chattel,"  it  was  held  to  be  a  mortgage,  and  to  operate  so  as  to 
transfer  the  property,  without  any  delivery,  as  a  bargain  and  sale  out 
and  out  of  the  goods  would,  though  an  agreement  to  create  a  pledge 
would,  according  to  Howes  v.  Ball,  supra,  have  conveyed  no  property 
of  any  kind  in  the  goods  without  a  delivery. 

But  where  the  goods  are  at  sea,  and  there  is  a  transfer  of  the  bill  of 
lading,  there  is  a  deliver}'  of  possession,  symbolical,  it  is  true,  but  all 
that  can  be  given.  The  question  whether  there  was  a  mortgage  or  only 
a  common  law  pledge,  or  hypothec,  it  being  accompanied  by  delivery, 
might  affect  the  question  what  was  the  court  in  which  those  rights  were 
to  be  enforced,  but  does  not  affect  the  substance  of  the  rights.  The 
borrower,  if  read}'  and  willing  to  pay  the  money,  might  in  the  one  case 
be  able  to  bring  an  action  at  law  against  the  lender  who  refused  to  allow 
him  to  redeem,  and  in  the  other  have  to  sue  in  equity,  but  as  it  would 
equally  be  a  pledge  his  rights  would  be  the  same  in  substance.  I  am 
therefore  strongly  inclined  to  hold  that  even  if  this  was  a  mortgage 
there  would  not  have  been  a  transfer  of  "the"  property  within  the 
meaning  of  18  &  19  Vict.  c.  111.  This  is  contrary  to  the  opinions  not 
only  of  Brett,  M.  R.,  and  Baggallay,  L.  J.,  but  of  Field,  J.,  also. 

Bowen,  L.  J.,  who  agreed  with  Field,  J.,  in  thinking  that  this  was  not 
a  mortgage  but  only  a  pledge,  did  not  express  an}'  opinion  as  to  what 
would  have  been  the  law  if  it  had  been  a  mortgage.  I  believe  all  the 
noble  and  learned  lords  who  heard  the  argument  are  agreed  with  him 
in  thinking  that  in  this  case  it  was  only  a  pledge.  I  do  not  therefore 
intend  to  express  a  final  decision  that  an  assignee  of  a  bill  of  lading  by 
way  of  mortgage  is  not  as  such  liable  to  be  sued  under  18  &  19  Vict, 
c.  Ill  ;  but  only  to  guard  against  its  being  supposed  that  even  if  Brett, 
M.  R.,  and  Baggallay,  L.  J.,  were  right  in  holding  this  a  mortgage,  I, 
as  at  present  advised,  should  agree  in  their  conclusion  that  the  defend- 
ants conld  be  sued. 

I  now  proceed  to  consider  the  question  on  which  the  Court  of  Appeal 
were  divided  in  opinion,  but  the  majority  made  the  order  now  appealed 
against.  The  question  is  stated  by  Brett,  M.  R.,  to  be,  "Does  the  in- 
dorsement of  a  bill  of  lading  as  a  security  for  an  advance,  by  a  neces- 
sary implication  which  cannot  be  disproved,  pass  the  legal  property  in 
the  goods  named  in  the  bill  of  lading  to  the  indorsee  with  an  equity  in 
the  indorser,  the  borrower,  to  redeem  the  bill  of  lading  by  payment,  or 
to  receive  the  balance,  if  any,  on  a  sale?"     13  Q.  B.  1).  1(51. 

Field,  J.,  had  held,  and  Bowen,  L.  J.,  agreed  with  him,  that  it  might 


SECT.  VI.]  SEWELL   V.    BUBDICK.  239 

so  operate,  if  so  intended  by  the  parties  at  the  time,  hut  did  not  so 
operate  if  it  was  intended  to  he  no  more  than  a  pledge  as  distinguished 
from  a  mortgage. 

I  do  not  understand  that  an}'  one  of  the  judges  below  disputed  that  if 
it  was  a  question  of  intention  depending  on  the  evidence,  the  finding  of 
Field,  J.,  was  right;  but  the  majority  in  the  Court  of  Appeal  proceeded 
on  the  principles  laid  down  by  Brett,  L.  J.,  in  Glyn  v.  East  and  West 
India  Dock  Company,  supra.  In  that  case  the  terms  on  which  the 
bill  of  lading  was  delivered  to  Glyn  &  Co.  were  reduced  to  writing,  and 
the  question,  therefore,  whether  it  was  intended  to  deliver  it  by  way  of 
pledge  only,  or  by  way  of  a  mortgage,  depended  on  the  construction  of 
that  writing.  "Whether  Brett,  L.  J.,  thought  that  on  the  construction 
of  the  written  instrument  it  was  intended  to  be  a  mortgage  I  do  not 
know  :  I  do  not  think  he  proceeded  on  that  ground.  He  said  it  was  a 
mortgage,  and  that  the  effect  of  the  statute  18  &  19  Vict.  c.  Ill,  was 
to  transfer  the  light  to  sue  and  the  liability  to  be  sued  to  Glyn  &  Co. 

Lord  Bramwell,  then  Bramwell,  L.  J.,  was  of  an  opposite  opinion  on 
both  points.  He  thought  that  Glyn  &  Co.  had  a  special  property  and 
a  right  of  possession,  and  no  more. 

In  the  House  of  Lords  I  said,  "  I  do  not  think  it  necessary  to  express 
any  opinion  on  a  question  much  discussed  by  Brett,  L.  J.,  —  I  mean 
whether  the  property  which  the  bankers  were  to  have  was  the  whole 
legal  property  in  the  goods,  Cottam  &  Co.'s  interest  being  equitable 
only,  or  whether  the  bankers  were  only  to  have  a  special  property  as 
pawnees,  Cottam  &  Co.  having  the  legal  general  property.  Either  way 
the  bankers  had  a  legal  property,  and  at  law  the  right  to  the  possession, 
subject  to  the  shipowner's  lien,  and  were  entitled  to  maintain  an  action 
against  any  one  who,  without  justification  or  legal  excuse,  deprived  them 
of  that  right."  7  App.  Cas.  591,  606.  All  the  noble  and  learned  lords 
agreed  in  this.  I  think,  therefore,  the  decision  of  this  House  is  a  strong 
authority  in  support  of  the  position  which  I  have  before  advanced,  that 
the  rights  of  a  mortgagee  having  taken  a  bill  of  lading,  and  the  rights 
of  a  pawnee  having  taken  a  bill  of  lading,  are  in  substance  the  same. 

I  did  not  think  it  necessary  to  point  out  that  the  question  which  the 
House  in  Glyn  v.  East  and  West  India  Dock  Company,  supra,  had  to 
decide,  and  did  decide,  would  have  been  just  the  same  if  18  &  19  Vict. 
c.  Ill,  had  never  been  passed  or  had  been  repealed,  and  consequently 
that  it  was  unnecessary  to  express  any  opinion  on  the  construction  of 
that  Act,  but  it  obviously  was  so. 

Before  proceeding  further  I  wish  to  point  out  what,  in  my  opinion,  is 
a  great  misapprehension  as  to  the  effect  of  the  decision  of  this  House  in 
Lickbarrow  v.  Mason,  6  East,  20,  n.,  and  as  to  the  weight  to  he  given 
to  the  opinion  of  Buller,  J.,  delivered  in  this  House  and  reported  in  a 
note  to  6  East. 

I  have  already  said  that  in  this  case  there  is  no  sale,  no  vendor,  and 
no  vendee,  and  no  stoppage  in  transitu,  so  that  this  misapprehension,  as 
I  think  it  is,  is  not  so  material  as  it  might  be  in  some  other  cases. 

19 


290  SEWELL   V.    BUEDICK.  [CHAP.  II. 

A  demurrer  on  evidence,  .is  is  pointed  out  by  Eyre,  C.  J.,  in  deliver- 
ing the  unanimous  opinion  of  the  judges  in  Gibson  v.  Hunter,  2  H.  Bl. 
205,  206,  not  Gibson  v.  Minet,  as  is  by  mistake  said  in  the  note  in  6 
East,  though  not  familiar  in  practice,  was  a  proceeding  known  to  the 
law.  He  explains  it,  and  states  his  veiw  confident  expectations  (which 
have  been  justified  b}'  the  result)  that  no  demurrer  on  evidence  would 
again  be  brought  before  the  House. 

It  may  be  well  to  point  out  the  dates.  The  demurrer  to  evidence  in 
Lickbarrow  v.  Mason,  5  T.  R.  683,  was  in  1787.  The  only  case  of  a 
demurrer  on  evidence  in  what  were  then  recent  times,  was  Cocksedge  v. 
Eanshawe,  1  Doug.  118,  134,  on  which  judgment  had  been  given  in  this 
House  in  1783.  Neither  in  the  King's  Bench  nor  in  the  Exchequer 
Chamber  was  any  question  raised  in  Lickbarrow  v.  Mason  as  to  the 
mode  in  which  the  questions  discussed  were  raised.  In  1790  the  writ 
of  error  from  the  decision  of  the  Exchequer  Chamber  was  brought  be- 
fore the  House  of  Lords.  The  law  peers  at  that  time  were  Lord  Thurlow, 
Lord  Loughborough,  and  Lord  Kenyon.  When  it  was  argued  does  not 
appear,  but  it  was  argued,  and  the  same  question  as  had  been  asked  of 
the  judges  in  Cocksedge  v.  Eanshawe  was  asked  of  the  judges.  Six 
judges  (including  all  the  survivors  of  those  who  had  joined  in  Lord 
Loughborough's  judgment  in  the  Exchequer  Chamber)  answered  in 
favor  of  the  respondent.  The  three  judges  who  had  given  judgment  in 
the  King's  Bench  answered  in  favor  of  the  appellant.  This  House  de- 
layed giving  its  opinion  till  1793.  In  the  meantime,  in  1791,  there  was 
a  demurrer  to  evidence  in  Gibson  v.  Hunter,  supra,  wdiich  was  brought 
before  this  House.  The  case  in  this  House  is  reported,  2  H.  Bl.  187. 
On  the  7th  of  Eebruaiy,  1793,  this  House  gave  judgment,  awarding  a 
venire  de  novo.  One  week  afterwards,  on  the  14th  of  February,  1793, 
this  House  delivered  judgment  in  the  long  pending  case  of  Lickbarrow 
/•.  Mason,  awarding  in  that  case  also  a  venire  de  novo.  Lord  Lough- 
borough was  himself  at  that  time  Lord  Chancellor. 

I  should  have  thought,  if  anything  was  clear,  it  was  that  this  House 
did  not  decide  anything,  except  that  on  that  demurrer  to  the  evidence 
no  judgment  could  be  given  ;  certainly  the  last  conclusion  that  I  should 
draw  is  that  stated  by  Field,  J.,  that  the  House  in  which  Lord  Lough- 
borough was  Chancellor  decided  "  presumably  "  on  the  opinion  delivered 
by  Buller,  J.,  against  the  judgment  of  Lord  Loughborough,  which  six 
judges  to  three  had  thought  rigid.  Neither  can  I  at  all  agree  in  the 
opinion  expressed  by  Field,  J.,  that  the  opinion  of  Buller,  J.,  has  always 
been  taken  as  the  law,  and  been  adopted  and  followed  as  the  law  up  to 
the  present  day.  It  never  was  published  till  1805  in  a  note  to  6  East,  20. 
I  have  for  many  years  been  of  opinion,  and  still  remain  of  opinion,  that 
much  of  what  Buller,  J.,  expresses  in  that  opinion  as  to  stoppage  in 
transitu  was  peculiar  to  himself,  and  was  never  adopted  by  any  other 
judge,  and  is  not  law  at  the  present  day.  But  it  is  not  necessary  to 
pursue  the  subject  further,  as  I  agree"  with  Bowen,  L.  J.,  that  neither 
the  statement  of  the  custom  of  merchants  in  the  special  verdict  in  Lick- 


SECT.  VI.]  SEWELL    V.    BURDICK.  291 

barrow  v.  Mason,  supra,  nor  the  opinion  of  Buller,  J.,  justifies  the  in- 
ference that  the  indorsement  of  a  bill  of  lading  for  a  valuable  consider- 
ation must  pass  the  entire  legal  property,  whatever  was  the  intention  of 

the  parties. 

In  Liekbarrow  v.  Mason,  supra,  Turing  was  an  unpaid  vendor  to 
Freeman.  He  bad  indorsed  the  bill  of  lading  to  Freeman,  and  had  not 
therefore  any  right,  except  that  of  stopping  the  goods  whilst  in  transitu 
if  Freeman  became  insolvent  without  having  paid  for  the  goods,  and 
that  right  he  had,  though  the  indorsed  bill  of  lading  had  been  sent  on 
to  the  vendee,  so  long  as  that  bill  of  lading  remained  in  the  vendei  - 
hands.  But  before  any  such  stoppage  Freeman,  for  valuable  consider- 
ation, indorsed  the  bill  of  lading  to  Liekbarrow,  who,  whether  as  mort- 
gagee or  pledgee,  had  a  legal  property  accompanied  by  a  righl 
possession.  The  point  which  I  understand  to  have  been  decided  in 
Liekbarrow  /•.  Mason  was,  that  on  the  transfer  of  the  lull  of  lading  to 
Liekbarrow  the  goods  ceased  to  be  in  transitu,  the  shipowner  from  that 
time  no  longer  holding  them  as  a  middleman  to  carry  the  goods  from  the 
unpaid  vendor,  Turing,  to  Freeman  his  vendee,  but  holding  them  as 
agent  for  Liekbarrow.  It  was  held,  first  in  lie  Westzinthus,  •">  B.  & 
Ad.  Ml  7.  and  then  in  Spalding  v.  Ruding,  6  Beav.  381,  that  where  the 
transitus  was  thus  put  an  end  to  by  what  was  in  reality  only  a  pledge, 
the  stoppage  might  be  made  available  in  equity  so  far  as  the  rights  of 
the  pledgee  did  not  extend.  I  thought,  and  still  think,  that  the  reason 
why  the  stoppage  could  not  be  made  available  at  law  was  because  the 
shipowner  no  longer  held  the  goods  as  a  middleman,  as  the  transferee 
of  the  bill  of  lading  for  valuable  consideration  and  bona  fide  so  as  to 
give  him  a  security  whether  by  way  of  mortgage  or  by  way  of  pledge, 
had  a  legal  property  in  the  goods  which  he  could  enforce  as  against  the 
shipowner.  Such  being  my  view  of  the  law.  whether  it  was  right  or 
wrong,  1  expressed  myself  accordingly  in  Kemp  r.  Falk.  7  App  Cas. 
573,  so  as  to  show  that  I  thought  so  ;  but  there  was  nothing  in  that  case 
to  call  for  a  decision  on  the  point  now  before  this  House. 

In  Newsom  v.  Thornton.  G  East,  40,  Lord  Fllenborough  says:  ••  r 
should  be  veiy  sorry  if  anything  fell  from  the  court  which  weakened  the 
authority  of  Liekbarrow  v.  Mason,  supra,  as  to  the  right  of  a  vendee  to 
pass  the  property  of  goods  in  transitu  by  indorsement  of  the  bill  of  lading 
to  a  bona  fide  holder  for  a  valuable  consideration  and  without  notice. 
For  as  to  Wright  v.  Campbell,  4  Burr.  2047,  though  that  was  the  c  - 
of  an  indorsement  of  a  factor,  it  was  an  outright  assignment  of  the 
property  for  value.  Scott,  the  indorsee,  was  to  sell  the  goods  and  in- 
demnify himself  out  of  the  produce  the  amount  of  the  debt  for  which  he 
had  made  himself  answerable.  The  factor,  at  least,  purported  to  make 
a  sale  of  the  goods  transferred  by  the  bill  of  lading,  and  not  a  pledge. 
Now  this  was  a  direct  pledge  of  the  bill  of  lading,  and  not  intended  by 
the  parties  as  a  sale.  A  bill  of  lading,  indeed,  shall  pass  the  property 
upon  a  bona  fid*  indorsement  and  delivery  where  it  is  intended  so  to 
operate,  in  the  same  manner  as  a  direct  delivery  of  the  goods  themselves 
would  do  if  so  intended.     But  it  cannot  operate  further." 


292  SEWELL   V.    BURDICK.  [CHAP.  II. 

Lawrence,  J.,  at  page  43,  says,  speaking  of  Lickbarrow  v.  Mason, 
supra,  "  All  that  that  case  seems  to  have  decided  is,  that  where  the  prop- 
erty in  the  goods  passed  to  a  vendee,  subject  only  to  be  devested  by  the 
vendor's  right  to  stop  them  while  in  transitu,  such  right  must  be  exer- 
cised, if  at  all,  before  the  vendee  has  parted  with  the  property  to  another 
for  a  valual  »le  consideration  and  bona  fidt .  and  by  indorsement  of  the  bill 
of  lading  given  him  a  right  to  recover  them."  And  Le  Blanc,  J.,  says 
that  what  the}'  then  determine  "  will  not  break  in  at  all  on  the  doctrine 
of  Lickbarrow  v.  Mason  that  the  indorsement  of  a  bill  of  lading  upon 
the  sale  of  the  goods  will  pass  the  property  to  a  bona  fide  indorsee,  the 
property  being  intended  to  pass  by  such  indorsement." 

In  Glyn  v.  East  and  West  India  Dock  Co.,  6  Q.  B.  D.  480,  Brett, 
L.  J.,  says  (speaking  of  an  opinion  of  Willes,  J.),  "  To  say  that  an  in- 
dorsement of  a  bill  of  lading  for  an  advance  is  only  a  pledge,  seems  to 
me  to  be  inconsistent  witli  what  has  always  been  considered  to  be  the 
result  of  Lickbarrow  v.  Mason,  supra,  namely,  that  such  an  indorse- 
ment passes  the  legal  property."  by  which  I  understand  him  to  mean  the 
whole  legal  property.  But  neither  in  that  case  nor  in  the  case  now  at 
bar  does  he  refer  to  any  authority  to  that  effect.  Expressions  used  by 
judges  have  been  cited  which,  I  think,  only  show  that  they  did  not  care- 
fully consider  their  language,  where  no  question  of  the  kind  before  us' 
was  under  discussion.  And,  as  far  as  I  know,  there  is  no  decision  sub- 
sequent to  Lickbarrow  v.  Mason  which  proceeds  on  such  a  ground, 
whilst  Newsom  v.  Thornton,  6  East,  17,  proceeds  expressly  on  the 
ground  that  the  indorsement  of  a  bill  of  lading,  when  intended  to  be 
a  pledge  only,  is  not  valid  if  made  by  one  who  has  no  authority  to  make 
a  pledge.  I  do  not  know  that  I  am  justified  in  saying  that  it  is  a  decis- 
ion that,  if  it  was  made  by  one  who  had  authority  to  make  a  pledge,  it 
would  be  good  as  such,  though  I  think  that  appears  to  have  been  Lord 
Ellenborough's  opinion,  and  I  do  not  think  any  authority  was  cited  on 
the  argument  at  the  bar  to  show  that  such  is  not  the  law.  No  case  was 
cited  at  the  liar,  nor  am  I  aware  of  any  in  which  it  has  been  held  that  a 
transfer  of  the  bill  of  lading  for  value  necessarily,  whatever  might  be  the 
intention,  passed  the  whole  legal  property.  The  Master  of  the  Bolls 
says  :  "  If  the  general  understanding  of  merchants  had  not  been  in  ac- 
cordance with  the  verdict  of  the  jury  in  Lickbarrow  v.  Mason,  1  Sm.  L. 
('.  753.  8th  ed.,  accepted  in  its  largest  sense,  there  would,  one  would 
think,  have  been  cases  in  the  books  raising  the  question."  13  Q.  B.  I). 
1 02.  With  submission  to  the  Master  of  the  Rolls,  I  think  no  weight  can 
be  given  to  this  absence  of  authority  until  it  is  shown  that  there  have 
been  cases  in  which  it  became  material  to  consider  whether  an  indorse- 
ment intended  to  be  and  operating  as  a  pledge  at  law  had  a  less  effeel 
than  an  indorsement  operating  against  the  intention  as  a  mortgage.  I 
have  already  given  my  reasons  for  thinking  that  in  substance  the  rights 
would  be  tin'  same  Without,  therefore,  deciding  the  question  whether 
a  mortgage  would  render  the  mortgagee  liable  under  18  &  19  Vict.  c. 
111.  I  decide  that,  mainly  for  the  reasons  given  by  Bowen,  L.  J.,  this 
transfer  did  not  operate  as  a  mortgage. 


SECT.  VI.]  STATE   V.    O'NEIL.  293 

I  therefore  am  clearly  of  opinion  that  the  order  made  by  the  Court  of 
Appeals  should  be  reversed  with  costs,  and  the  judgment  of  Field,  J., 
restored. 

Order  appealed  from  reversed.  Order  of  Field,  J.,  restored. 
Respondent  to  pay  the  coats  in  the  court  below  and  in  this 
House.     Cause  remitted  to  the  (Jute/i's  Bench  Division.1 


STATE  v.  JOHN  O'NEIL. 

Vermont  Supreme  Court,  October  Term,   1885. 

[Reported  in  58  Vermont,  140] 

Royce,  C.  J.  The  first  and  most  important  question  presented  by 
these  cases,  is  whether  or  not  the  intoxicating  liquors  in  question  were 
(in  the  first  two  cases)  in  contemplation  of  law  sold,  or  furnished,  by 
the  respondent  in  the  County  of  Rutland  and  State  of  Vermont ;  or  (in 
the  last  two  cases)  held  and  kept  for  the  purpose  of  sale,  furnishing, 
or  distribution  contrary  to  the  statute,  within  said  county  and  State. 
The  answer  depends  upon  whether  the  National  Express  Company,  by 
which  some  of  said  liquors  were  delivered  to  the  consignees  thereof, 
and  in  whose  possession  the  remainder  were  found  and  seized  before 
deliver}',  was  in  law  the  agent  of  the  vendors  or  of  the  vendees.  If  the 
purchase  and  sale  of  the  liquors  was  fully*  completed  in  the  State  of 
New  York,  so  that  upon  delivery  of  them  to  the  express  company  for 
transportation  the  title  vested  in  the  consignees,  as  in  the  case  of  a 
completed  and  unconditional  sale,  then  no  offence  against  the  laws  of 
this  State  lias  been  committed.  If,  on  the  other  hand,  the  sale  by  its 
terms  could  only  become  complete  so  as  to  pass  the  title  in  the  liquors 
to  the  consignees  upon  the  doing  of  some  act,  or  the  fulfilling  of  some 
condition  precedent  after  they  had  reached  Rutland,  then  the  rulings  of 
the  County  Court  upon  the  question  of  the  offence  were  correct. 

The  liquors  were  ordered  by  residents  of  Vermont  from  dealers  doing 
business  in  the  State  of  New  York,  who  selected  from  their  stock  such 
quantities  and  kinds  of  goods  as  they  thought  proper  in  compliance 
with  the  terms  of  the  orders,  put  them  up  in  packages,  directed  them  to 
the  consignees,  and  delivered  them  to  the  express  company  as  a  com- 
mon carrier  of  goods  for  transportation,  accompanied  with  a  bill,  or 
invoice,  for  collection.  The  shipment  was  in  each  instance,  which  it  is 
necessary  here  to  consider,  "  C.  O.  I).";  and  the  cases  show  that  the 
effect  of  the  transaction  was  a  direction  by  the  shipper  to  the  express 
company  not  to  deliver  the  goods  to  the  consignees  except  upon  pay- 

1  Lords  Selborse,  Br.vmwell,  and  Fitzgerald  delivered  concurring  opinions. 


29 i  STATE    V.    O'NEIL.  fCHAP.  II. 

rnent  of  the  amount  specified  in  the  C.  O.  D.  bills,  together  with  the. 
charges  for  the  transportation  of  the  packages  and  for  the  return  of  the 
money  paid.  This  direction  was  understood  by  the  express  company, 
which  received  the  shipments  coupled  therewith. 

Whether  or  not,  and  when,  the  legal  title  in  property  sold  passes 
from  the  vendor  to  the  vendee,  is  always  a  question  of  the  intention  of 
the  parties,  which  is  to  be  gathered  from  their  acts,  and  all  the  facts 
and  circumstances  of  the  case  taken  together.  In  order  that  the  title 
may  pass,  as  was  said  by  Morton,  J.,  in  Mason  v.  Thompson,  18  Pick. 
305  :  "The  owner  must  intend  to  part  with  his  property,  and  the  pur- 
chaser to  become  the  immediate  owner.  Their  two  minds  must  meet 
on  this  point ;  and  if  anything  remains  to  be  done  before  either  assents, 
it  may  be  an  inchoate  contract,  but  it  is  not  a  perfect  sale."  The 
authorities  seem  to  be  uniform  upon  this  point ;  and  the  acts  of  the  par- 
ties are  regarded  as  evidence  by  which  the  court  or  jury  may  ascertain 
and  determine  their  intent.  Benj.  Sales,  ss.  311,  319,  note  (c).  When 
there  is  a  condition  precedent  attached  to  the  contract,  the  title  in  the 
property  does  not  pass  to  the  vendee  until  performance  or  waiver  of  the 
condition,  even  though  there  be  an  actual  delivery  of  possession. 
Benj.  Sales,  s.  320,  note  (d).  The  Vermont  cases  to  the  above  points 
are  referred  to  in  Roberts's  Digest,  G10  et  seg.,  and  need  not  be  spe- 
cially reviewed  here. 

In  the  cases  under  consideration  the  vendors  of  the  liquors  shipped 
them  in  accordance  with  the  terms  of  the  orders  received,  and  the  mode 
of  shipment  was  as  above  stated.  They  delivered  the  packages  of 
liquors,  properly  addressed  to  the  several  persons  ordering  the  same,  to 
the  express  company,  to  be  transported  by  that  company  and  delivered 
by  it  to  the  consignees  upon  fulfilment  by  them  of  a  specified  condition 
precedent ;  namely,  payment  of  the  purchase-price  and  transportation 
charges,  and  not  otherwise.  Attached  to  the  very  body  of  the  contract, 
and  to  the  act  of  delivery  to  the  carrier,  was  the  condition  of  payment 
before  delivery  of  possession  to  the  consignee.  With  this  condition 
unfulfilled  and  not  waived,  it  would  be  impossible  to  say  that  a  delivery 
to  the  carrier  was  intended  by  the  consignor  as  a  delivery  to  the  con- 
signee, or  as  a  surrender  of  the  legal  title.  The  goods  were  intrusted 
to  the  carrier  to  transport  to  the  place  of  destination  named,  there  to 
present  them  for  acceptance  to  the  consignee,  and  if  he  accepted  them 
ami  paid  the  accompanying  invoice  and  the  transportation  charges,  to 
deliver  them  to  him  ;  otherwise,  to  notify  the  consignor  and  hold  them 
subject  to  his  order.  It  is  difficult  to  see  how  a  seller  could  more  posi- 
tively and  unequivocally  express  his  intention  not  to  relinquish  his 
righl  of  property  or  possession  in  goods  until  payment  of  the  purchase- 
price  than  by  this  method  of  shipment.  We  do  not  think  the  case  is 
distinguishable  in  principle  from  that  of  n  vendor  who  semis  his  clerk 
or  agent,  to  deliver  the  goods,  or  forwards  them  to,  or  makes  them 
deliverable  upon  the  order  of.  his  agent,  with  instructions  not  to  deliver 
them  except  on  payment  of  the  price,  or  performance  of  some  other 


SECT.  VI.]  STATE   V.    O'NEIL.  295 

specified  condition  precedent  by  the  vendee.  The  vendors  made  the 
express  company  their  agent  in  the  matter  of  the  delivery  of  the  goods, 
with  instructions  not  to  part  with  the  possession  of  them  except  upon 
prior  or  contemporaneous  receipt  of  the  price.  The  contract  of  sale 
therefore  remained  inchoate  or  executory  while  the  goods  were  in  tran- 
sit, or  in  the  hands  of  the  express  companj*,  and  could  only  become 
executed  and  complete  by  their  delivery  to  the  consignee.  There  was  a 
completed  executory  contract  of  sale  in  New  York;  but  the  completed 
sale  was,  or  was  to  be,  in  this  State. 

The  authorities  upon  the  above  points  and  principles  are  so  numer- 
ous, and  are  so  fully  collated  in  the  brief  of  the  learned  counsel  for  the 
State,  and  in  the  text  and  notes  of  2  Benj.  Sales  (4th  Am.  ed.),  that  we 
refrain  from  specific  references  in  support  of  the  conclusions  at  which 
we  have  arrived.  These  are  fully  supported  by  the  decision  of  the 
U.  S.  District  Court  in  Illinois  in  People  v.  Shriver,  31  Alb.  L.  J.  1G3, 
a  case  involving  precisely  the  same  question.  Treat,  J.,  says  in  the 
opinion  :  "In  the  case  of  liquor  shipped  by  the  defendant  to  Fairfield 
by  express  C.  O.  I).,  the  liquor  is  received  by  the  express  company  at 
Sbawneetown  as  the  agent  of  the  seller,  and  not  as  the  agent  of  the 
buyer,  and  on  its  reaching  Fairfield  it  is  there  held  by  the  company,  as 
the  agent  of  the  seller,  until  the  consignee  comes  and  pays  the  money, 
and  then  the  company,  as  the  agent  of  the  seller,  delivers  the  liquor  to 
the  purchaser.  In  such  case  the  possession  of  the  express  company  is 
the  possession  of  the  seller,  and  generally  the  right  of  property  remains 
in  the  seller  until  the  payment  of  the  price.  An  order  from  a  person  in 
Fairfield  to  the  defendant  at  Sbawneetown  for  two  gallons  of  liquor, 
to  be  shipped  to  Fairfield,  C.  O.  D.,  a  mere  offer  by  the  person  sending 
such  order  to  purchase  two  gallons  of  liquor  from  the  defendant,  and 
pay  him  for  it  when  he  delivers  it  to  him  at  Fairfield,  and  a  shipment 
by  the  defendant  according  to  such  order  is  practically  the  same  as  if 
the  defendant  had  himself  taken  two  gallons  of  liquor  from  his  store  in 
Shawneetown,  carried  it  in  person  to  Fairfield,  and  there  delivered  it  to 
the  purchaser,  and  received  the  price  of  it.  It  would  be  different 
if  the  order  from  Fairfield  to  the  defendant  was  a  simple  order  to  ship 
two  gallons  of  liquor  by  express  to  the  person  ordering,  whether  such 
order  was  accompanied  by  the  money  or  not.  The  moment  the  liquor 
under  such  an  order  was  delivered  to  the  express  company  at  Shawnee- 
town it  would  become  the  property  of  the  person  ordering,  and  the 
possession  of  the  express  company  at  Shawneetown  would  be  the  pos- 
session of  the  purchaser  —  the  sale  would  be  a  sale  at  Shawneetown  — 
and  if  it  were  lost  or  destroyed  in  transit  the  loss  would  fall  upon  the 
purchaser.  But  in  the  case  at  bar  the  shipping  of  the  liquor  to  Fair- 
tield,  C.  0.  D.,  the  defendant  made  no  sale  at  Shawneetown  ;  the  right 
<>!'  property  remained  in  himself,  and  the  right  of  possession,  as  well  as 
the  actual  possession,  remained  in  him  through  his  agent.  Had  it  been 
lost  or  destroyed  in  transit  the  loss  would  have  fallen  on  himself.  He 
simply  acted  upon  the  request  of  the  purchaser,  and  sent   the  liquor  to 


296  COMMONWEALTH    V.    FLEMING.  [CHAP.  II. 

Fairfield  by  bis  own  agent,  and  tbere  effected  a  sale  by  receiving  the 
money  and  delivering  the  liquor."  l 


COMMONWEALTH   v.   FLEMING. 
Pennsylvania  Supreme  Court,  October  15-November  4,  1889. 

[Reported  in  130  Pennsylvania,  13S.] 

Mr.  Justice  Green.  In  tbe  case  now  under  consideration,  the 
liquor  was  sold  upon  orders  sent  by  mail  by  the  purchasers,  living  in 
Mercer  County,  to  the  defendant,  who  is  a  wholesale  liquor-dealer  in 
Allegheny  County.  The  goods  were  set  apart  at  the  defendant's  place 
of  business  in  Allegheny  County,  and  were  there  delivered  to  a  common 
carrier,  consigned  to  the  purchaser  at  his  address  in  Mercer  County, 
and  by  the  carrier  transported  to  Mercer  County,  and  there  delivered 
to  the  purchaser,  who  paid  the  expense  of  transportation.  Upon  these 
facts  alone,  the  decision  of  this  court  in  the  case  of  Garbracht  v.  Com- 
monwealth, 96  Pa.  449,  is  directly  and  distinctly  applicable,  and  requires 
us  to  reverse  the  judgment  of  the  court  below,  unless  there  are  other 
facts  in  the  case  which  distinguish  it  from  that  of  Garbracht. 

It  is  claimed,  and  it  was  so  held  by  the  court  below,  that,  because 
the  goods  were  marked  C.  O.  D.,  the  sale  was  not  complete  until  the 
delivery  was  made,  and,  as  that  took  place  in  Mercer  County,  where 
the  defendant's  license  was  inoperative,  he  was  without  license  as  to 
such  sales,  and  became  subject  to  the  penalty  of  the  criminal  law. 
The  argument  by  which  this  conclusion  was  reached  was  simply  that 
the  payment  of  the  price  was  a  condition  precedent  to  the  delivery,  and 
hence  there  was  no  delivery  until  payment,  and  no  title  passed  until 
delivery.  The  legal  and  criminal  inference  was,  that  the  sale  was 
made  in  Mercer,  and  not  in  Allegheny.  This  reasoning  ignores  cer- 
tain facts  which  require  consideration.  The  orders  were  sent  by  the 
purchasers,  in  Mercer,  by  mail  to  the  seller,  in  Allegheny,  and  in  the 
orders  the  purchasers  requested  the  defendant  to  send  the  goods  C.  O.  D. 
The  well-known  meaning  of  such  an  order  is  that  the  price  of  the 
goods  is  to  be  collected  by  the  carrier  at  the  time  of  delivery.  The 
purchaser,  for  his  own  convenience,  requests  the  seller  to  send  him 
the  goods,  with  authority  in  the  carrier  to  receive  the  money  for  them. 
This  method  of  payment  is  the  choice  of  the  purchaser,  under  such  an 
order;  and  it  is  beyond  question  that,  so  far  as  the  purchaser  is  con- 

1  A  portion  of  the  opinion  is  omitted.  This  case  was  carried  by  writ  of  error  to  the 
Supreme  Court  of  the  United  States.  The  majority  of  the  court,  holding  that  no  Fed- 
eral question  was  involved,  dismissed  the  writ.  In  a  dissenting  opinion,  Mr.  Justice 
Harlan  intimates,  obiter,  his  assent  to  the  conclusion  of  the  Vermont  court  that  title 
to  the  liquor  did  not  pass  until  it  was  received  and  paid  for.  O'Neil  v.  Vermont, 
144  U.  3.  323. 


SECT.  VI.]  COMMONWEALTH    V.    FLEMING.  297 

cerned,  the  carrier  is  bis  agent  for  the  receipt  and  transmission  of  the 
money.  If  the  seller  accedes  to  such  a  request  by  the  purchaser,  he 
certainly  authorizes  the  purchaser  to  pay  the  money  to  the  carrier,  and 
the  purchaser  is  relieved  of  all  liability  to  the  seller  for  the  price  of  the 
goods  if  he  pays  the  price  to  the  carrier.  The  liability  for  the  price  is 
transferred  from  the  buyer  to  the  carrier;  and,  whether  the  carrier 
receives  the  price  or  not,  at  the  time  of  delivery,  he  is  liable  to  the 
seller  for  the  price  if  he  does  deliver.  Substantially,  therefore,  if  the 
delivery  is  made  by  the  carrier,  and  he  chooses  to  give  credit  to  the 
purchaser  for  the  payment  of  the  price,  the  transaction  is  complete,  so 
far  a.s  the  seller  is  concerned,  and  the  purchaser  may  hold  the  goods. 

Of  course,  if  the  seller  were  himself  delivering  the  goods  in  parcels 
upon  condition  that  on  delivery  of  the  last  parcel  the  price  of  the 
whole  should  be  paid,  it  would  be  a  fraud  on  the  seller  if  the  pur- 
chaser, after  getting  all  the  parcels,  should  refuse  to  perform  the  con- 
dition upon  which  he  obtained  them,  and  in  such  circumstances  the 
seller  would  be  entitled  to  recover  the  goods.  This  was  the  case  of 
Henderson  v.  Lauck,  21  Pa.  359.  The  court  below,  in  that  case, 
expressly  charged  that  if  the  seller  relied  on  the  promise  of  the  pur- 
chaser to  pay,  and  delivered  the  goods  absolutely,  the  right  to  the 
property  was  changed,  although  the  conditions  were  never  performed  ; 
but  if  he  relied,  not  on  the  promise,  but  on  actual  payment  at  the 
delivery  of  the  last  load,  he  might  reclaim  the  goods  if  the  money  was 
not  paid.  The  case  at  bar  is  entirely  different.  So  far  as  the  seller 
is  concerned,  he  is  satisfied  to  take  the  responsibility  of  the  carrier  for 
the  price,  in  place  of  that  of  the  buyer.  He  authorizes  the  purchaser 
absolutely  to  pay  the  price  to  the  carrier ;  and,  if  he  does  so,  un- 
doubtedly the  purchaser  is  relieved  of  all  responsibility  for  the  price, 
whether  the  carrier  ever  pays  it  to  the  seller  or  not.  But  the  carrier 
is  also  authorized  to  deliver  the  goods.  If  he  does  so,  and  receives 
the  price,  he  is  of  course  liable  for  it  to  the  seller.  But  he  is  equally 
liable  for  the  price  if  he  chooses  to  deliver  the  goods  without  receiving 
the  price.  It  cannot  be  questioned  that  the  purchaser  would  be  liable 
also ;  but,  as  he  had  received  the  goods  from  one  who  was  authorized 
to  deliver  them,  his  right  to  hold  them  even  as  against  the  seller  is  un- 
doubted. In  other  words,  the  direction  embodied  in  the  letters  C.  O.  D., 
placed  upon  a  package  committed  to  a  carrier,  is  an  order  to  the 
carrier  to  collect  the  money  for  the  package  at  the  time  of  its  delivery. 
It  is  a  part  of  the  undertaking  of  the  carrier  with  the  consignor,  a  vio- 
lation of  which  imposes  upon  the  carrier  the  obligation  to  pay  the  price 
of  the  article  delivered,  to  the  consignor.  We  have  been  referred  to 
no  authority,  and  have  been  unable  to  discover  any,  for  the  proposition 
that  in  such  a  case,  after  actual,  absolute  delivery  to  the  purchaser  bv 
the  carrier,  without  payment  of  the  price,  the  seller  could  reclaim  the 
goods  from  the  purchaser  as  upon  violation  of  a  condition  precedent. 

If,  now,  we  pause  to  consider  the  actual  contract  relation  between 
the  seller  and  purchaser,  where  the  purchaser  orders  the  goods  to  be 


298  COMMONWEALTH    V.    FLEMING.  [CHAP.  II. 

sent  to  him  C.  0.  D.,  the  matter  becomes  still  more  clear.  Upon  such 
an  order,  if  it  is  accepted  by  the  seller,  it  becomes  the  duty  of  the 
seller  to  deliver  the  goods  to  the  carrier,  with  instruction  to  the  carrier 
to  collect  the  price  at  the  time  of  delivery  to  the  purchaser.  In  such 
a  case  it  is  the  duty  of  the  purchaser  to  receive  the  goods  from  the 
carrier,  and.  at  the  time  of  receiving  them,  to  pay  the  price  to  the 
carrier.  This  is  the  whole  of  the  contract,  so  far  as  the  seller  and 
the  purchaser  are  concerned.  It  is  at  once  apparent  that  when  the 
seller  has  delivered  the  goods  to  the  carrier,  with  the  instruction  to 
collect  the  price  on  delivery  to  the  purchaser,  he  has  performed  his 
whole  duty  under  the  contract ;  he  has  nothing  more  to  do.  If  the 
purchaser  fail  to  perform  his  part  of  the  contract,  the  seller's  right  of 
action  is  complete  :  and  he  may  recover  the  price  of  the  goods  from 
the  purchaser,  whether  the  purchaser  takes,  or  refuses  to  take,  the 
goods  from  the  carrier.  Hence  it  follows  that  the  passage  of  the  title 
to  the  purchaser  is  not  essential  to  the  legal  completeness  of  the  con- 
tract of  sale.  It  is,  in  fact,  no  more  than  the  ordinary  case  of  a  con- 
tract of  sale,  wherein  the  seller  tenders  delivery  at  the  time  and  place 
of  delivery  agreed  upon,  but  the  purchaser  refuses  performance.  In 
such  case  it  is  perfectly  familiar  law  that  the  purchaser  is  legally  liable 
to  pay  the  price  of  the  goods,  although,  in  point  of  fact,  he  has  never 
had  them.  The  order  to  pay  on  delivery  is  merely  a  superadded  term 
of  the  contract ;  but  it  is  a  term  to  be  performed  by  the  purchaser, 
and  has  no  other  effect  upon  the  contract  than  any  other  term  affecting 
the  factum  of  delivery.  It  must  be  performed,  but  performed  by  the 
purchaser,  just  as  the  obligation  to  receive  the  goods  at  a  particular 
time  or  a  particular  place.  Its  non-performance  is  a  breach  by  the 
purchaser,  and  not  b}-  the  seller,  and  therefore  cannot  affect  the  right 
of  the  seller  to  regard  the  contract  of  sale  as  complete,  and  completely 
performed  on  his  part,  without  any  regard  to  the  question  Whether  the 
title  to  the  goods  has  passed  to  the  purchaser  as  upon  an  actual  recep- 
tion of  the  goods  by  him.  If  this  be  so,  the  case  of  the  commonwealth 
falls  to  the  ground,  even  upon  the  most  critical  consideration  of  the 
contract  between  the  parties,  regarded  as  a  contract  for  civil  purposes 
only. 

The  duties  which  lie  intermediate  between  those  of  the  seller  and 
those  of  the  purchaser  are  those  only  which  pertain  to,  and  are  to  be 
performed  by,  the  carrier.  These,  as  we  have  before  seen,  are  the 
ordinary  duties  of  carriage  and  delivery,  with  the  additional  duty  of 
receiving  the  price  from  the  purchaser,  and  transmitting  it  to  the 
seller.  The  only  decided  case  to  which  we  have  been  referred  which 
presents  the  effect  of  an  order  C.  O.  D.  to  a  carrier,  is  Iliggins  v. 
Murray,  73  N.  Y.  252.1     There  the  defendant  employed  the  plaintiff 

1  Othor  decisions  or  judicial  statements  to  the  effect  that  shipment  of  goods  C.  0.  D. 
will  not  prevenl  the  title  from  passing  on  delivery  to  the  carrier,  are  Pilgreen  v 
The  State,  71  Ala,  368;  State  v.  Carl,  4.3  Ark.  .'J.Vi ;  Hunter  v.  State,  55  Ark.  357, 
3.VJ  ,  State  v.  Intoxicating  Liquors,  73  Me.  278,  279. 


SECT.  VI.]  COMMONWEALTH    V.    FLEMING.  299 

to  manufacture  tor  him  a  set  of  circus  tents.  When  they  were  finished, 
the  plaintiff  shipped  them  to  the  defendant  C.  O.  D.,  and  they  were 
destroyed  by  fire  on  the  route.  It  was  held  that  the  defendant,  who 
was  the  purchaser,  should  bear  the  loss  ;  that  the  plaintiff  had  a  lien 
on  the  tents  for  the  value  of  his  labor  and  materials,  and  his  retaining 
his  lien  by  shipping  them  C.  O.  D.  was  not  inconsistent  with,  and  did 
not  affect  his  right  to  enforce  the  defendant's  liability.  In  the  course 
of  the  opinion  Chief  Justice  Church  said:  "Suppose,  in  this  case, 
that  the  defendant  had  refused  to  accept  a  delivery  of  the  tent,  his 
liability  would  have  been  the  same,  although  the  title  was  not  in  him. 
Tin-  plaintiff  had  a  lien  upon  the  article  for  the  value  of  his  labor  and 
materials,  which  was  good  as  long  as  he  retained  possession.  .  .  .  Re- 
taining the  lien  was  not  inconsistent  with  his  right  to  enforce  the  lia- 
bility for  which  this  action  was  brought.  That  liability  was  complete 
when  the  request  to  ship  was  made  by  the  defendant,  and  was  not 
affected  by  complying  with  the  request,  nor  by  retaining  the  lien  the 
same  as  when  the  request  was  made.  As  the  article  was  shipped  at 
the  request  of  and  for  the  benefit  of  the  defendant,  (assuming  that  i'. 
was  done  in  accordance  with  the  directions,)  it  follows  that  it  was  at 
his  risk,  and  could  not  impair  the  right  of  the  plaintiff  to  recover  for 
the  amount  due  him  upon  the  performance  of  bis  contract.  ...  As 
before  stated,  the  point  as  to  who  had  the  title  is  not  decisive.  It 
may  be  admitted  that  the  plaintiff  retained  the  title  as  security  for  the 
debt,  and  yet  the  defendant  was  liable  for  the  debt  in  a  proper  personal 
action."  It  seems  to  us  this  reasoning  is  perfectly  sound.  Practically, 
it  was  ruled  that  the  effect  of  the  order  C.  O.  D.  was  simply  the  reten- 
tion of  the  seller's  lien,  and  that  such  retention  of  lien  is  not  inconsis- 
tent with  a  right  of  recovery  for  the  price  of  the  article,  though,  in 
point  of  fact,  it  is  not  delivered  to  the  purchaser.  In  other  words,  the 
literal  state  of  the  title  is  not  decisive  of  the  question  of  liability  of  the 
purchaser,  and  he  may  be  compelled  to  pay  for  the  article,  though  lie 
never  received  it  into  his  actual  possession.  The  Chief  Justice  pro- 
pounds the  very  question  suggested  heretofore,  of  a  refusal  by  the  pur- 
chaser to  accept  the  article,  and  holds  that  his  liability  would  be  the 
same,  though  the  title  was  not  in  him. 

In  Hutchinson  on  Carriers,  at  §  389,  the  writer  thus  states  the  posi- 
tion and  duty  of  the  carrier:  "The  carrier  who  accepts  the  goods  with 
such  instructions  [C.  O.  D.]  undertakes  that  they  shall  not  be  delivered 
unless  the  condition  of  payment  be  complied  with,  and  becomes  the 
agent  of  the  shipper  of  the  goods  to  receive  such  payment.  He  there- 
fore undertakes,  in  addition  to  his  duties  as  carrier,  to  collect  for  the 
consignor  the  price  of  his  goods."  And  again,  in  §  390:  "When  the 
goods  are  so  received,  the  carrier  is  held  to  a  strict  compliance  with 
such  instructions  ;  and.  if  the  goods  are  delivered  without  an  exaction 
from  the  consignee  of  the  amount  which  the  carrier  is  instructed  t<> 
collect,  he  becomes  liable  to  the  consignor  for  it."  This  is  certainly  a 
correct  statement  of  the  position  and  liability  of  the  carrier.     He  be- 


300  LANE    V.    CHADWTCK.  [CHAP.  II. 

comes  subject  to  an  added  duty,  that  of  collection  ;  and,  if  he  fails  to 
perform  it,  he  is  liable  to  the  seller  for  the  price  of  the  goods.  We 
have  searched  in  vain  for  any  text-writer's  statement,  or  any  decision, 
to  the  effect  that  in  such  case  no  title  passes  to  the  purchaser.  We 
feel  well  assured  none  such  can  be  found.  But,  if  this  be  so,  the  whole 
theory  that  the  title  does  not  pass  if  the  money  is  not  paid  falls,  and 
the  true  legal  status  of  the  parties  results,  that  the  seller  has  a  remedy 
for  the  price  of  his  goods  against  the  carrier.  In  other  words,  an  order 
from  a  seller  to  a  carrier  to  collect  on  delivery,  accepted  by  the  carrier, 
1/  creates  a  contract  between  the  seller  and  the  carrier,  for  a  breach  of 
which  by  the  carrier  the  seller  may  recover  the  price  from  him.  So 
far  as  the  seller  and  purchaser  are  concerned,  the  latter  is  liable, 
whether  he  takes  the  goods  from  the  carrier  or  not,  and  the  order 
itself  is  a  mere  provision  for  the  retention  of  the  seller's  lien.  While, 
if  the  goods  are  not  delivered  to  the  purchaser  by  the  carrier,  the  title 
does  not  pass,  that  circumstance  does  not  affect  the  character  of  the 
transaction  as  a  sale  ;  and  the  right  of  the  seller  to  recover  the  price 
from  the  purchaser,  if  he  refuse  to  take  them,  is  as  complete  as  if  he 
had  taken  them,  and  not  paid  for  them. 

Judgment  reversed  and  defendant  dischargd.1 


SARAH   S.    LANE   v.  CHARLES   F.   CHAD  WICK. 

Supreme  Judicial  Court  of  Massachusetts,  November  28, 

1887 -January  9,  1888. 

[Reported  in  146  Massachusetts,  68.] 

Replevin  of  certain  goods.  Trial  in  the  Superior  Court,  without  a 
jury,  before  Hammond,  J.,  who  allowed  a  bill  of  exceptions  in  substance 
as  follows  :  — 

The  plaintiff  ordered  the  goods  from  wholesale  druggists  in  Boston 
to  be  shipped  to  her  by  express  C.  O.  D.  The  goods  were  so  shipped, 
nailed  up  in  two  boxes,  and  accompanied  by  an  itemized  bill.  The 
defendant,  an  express  messenger,  took  the   goods   to   the    plaintiff's 

i  A  portion  of  the  opinion  is  omitted.  Mr.  Justice  Williams  delivered  a  dissenting 
opinion,  in  which,  referring  to  Higgins  v.  Murray,  73  N.  Y.  253,  he  said  :  "This  case 
is  nut,  authority,  therefore,  for  the  doctrine  advanced  by  the  defendant  in  error,  but 
turned  upon  another  question,  viz.,  the  right  of  a  manufacturer  to  payment  when  he 
completed  the  article  contracted  for  by  his  customer.  The  rule  on  that  subject  is 
well  stated  in  Ballentine  v.  Robinson,  46  Pa.  177:  'When  the  manufacturer  of  an 
article  ordered  tins  completed  it,  and,  upon  notice  of  its  completion,  the  buyer  refuses 
or  neglects  to  pay  for  it  and  take  it,  the  maker  may  sue  for  its  value,  and  the  measure 
of  damages  is  thecontract  price.'  The  manufacturer  does  not  lose  his  right  to  sue 
upon  his  contract   because,  at  the  request  of  his  customer,  he  sends  the  goods  by  a 

carrier  with  instructions  to  collect  the  price;  but,  if  his  contract  had  1 n  to  make 

and  deliver  at  a  place  named,  the  title  would  not  pass  until  delivery  at  the  place 
named." 


SECT.  VI.]  LANE   V.   CIIADWICK.  301 

store,  and  demanded  the  amount  of  the  bill  with  express  charges  on 
delivery  of  the  boxes.  The  plaintiff  refused  to  pay  until  she  had  had 
an  opportunity  to  examine  the  contents  of  the  boxes,  and  to  com- 
pare the  contents  with  the  bill.  The  defendant  refused  to  permit  such 
an  examination,  and  took  the  boxes  away.  There  was  evidence  tend- 
ing to  show  that  the  defendant  told  the  plaintiff,  when  he  brought  the 
boxes,  that  if  the  boxes  did  not  contain  the  goods  ordered  by  the  plain- 
tiff he  would  not  refund  the  C.  O.  1).  charges  after  payment  to  him. 

Subsequently  the  plaintiff  procured  this  writ  and  went  to  the  defend- 
ant witli  the  officer,  and  in  his  presence  tendered  to  the  defendant  the 
amount  of  the  bill  and  express  charges  ;  and,  showing  the  bill  of  items, 
demanded  that  those  specific  goods  be  delivered  to  her.  The  defend- 
ant replied  that  he  knew  nothing  about  those  particular  goods,  and 
could  not  be  responsible  for  the  contents  of  the  boxes,  but  said  he  was 
ready  to  deliver  the  boxes.  The  plaintiff  refused  to  accept  the  boxes 
without  knowledge  of  their  contents,  and  the  writ  was  served.  The 
goods  named  in  the  itemized  bill  were  all  in  the  boxes.  The  plaintiff 
also  introduced  evidence  tending  to  show  that  after  this  last  tender  she 
made  an  absolute  tender  of  the  money  and  demanded  the  boxes. 

The  plaintiff  asked  the  judge  to  rule  that,  under  a  C.  O.  D.  contract 
like  the  one  in  this  case,  if  the  consignee  pays  the  carrier's  charges, 
and  tenders  the  price  of  the  goods,  the  consignee  has  a  right  to  have  it 
certain  that  the  goods  are  present  before  he  actually  parts  with  his 
money,  especially  when  told  that  the  money  would  not  be  refunded 
even  if  the  boxes  did  not  contain  the  goods  so  ordered  C.  O.  D.  The 
judge  refused  so  to  rule,  and  found  for  the  defendant. 

The  plaintiff  alleged  exceptions. 

P.  II.  Hutchinson  and  C.  G.  M.  Dunham,  for  the  plaintiff. 

II.  JI.  Knoiclton,  for  the  defendant. 

Morton,  C.  J.  To  maintain  replevin,  the  plaintiff  must  show  that, 
at  the  time  she  sued  out  her  writ,  she  was  entitled  to  the  immediate 
and  exclusive  possession  of  the  goods  replevied.  Collins  v.  Evans,  15 
Pick.  63  ;  Wade  v.  Mason,  12  Gray,  335. 

The  goods  in  suit  were  delivered  to  the  defendant,  who  is  a  common 
carrier,  b}'  the  consignor  in  Boston,  to  be  transported  to  the  plaintiff. 
They  were  in  two  boxes  securely  nailed  up,  and  were  accompanied  by 
an  itemized  bill.  The  defendant  was  instructed  to  deliver  the  goods  to 
the  plaintiff  upon  the  payment  of  the  bill  b}^  her  in  cash. 

The  delivery  to  the  carrier  was  not  a  delivery  to  the  plaintiff.  He 
was  not  her  agent,  but  the  agent  of  the  consignor.  Merchants'  National 
Hank  v.  Bangs,  102  Mass.  291.  Until  he  delivered  the  goods  to  her. 
no  title  or  right  of  possession  would  pass  to  her,  and  it  is  immaterial 
whether  he  rightfully  or  wrongfully  refused  to  make  the  delivery.  At 
the  time  she  replevied  the  goods  she  had  no  title  or  right  of  possession. 

Exceptions  overruled. 


302  WARD    V.    TAYLOR.  [CHAP.  IL 


WARD   v.  TAYLOR. 
Supreme  Court  of  Illinois,  September  Term,  1870. 

[Reported  in  56  Illinois,  494.] 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  court :  — 

This  was  an  action  of  assumpsit,  brought  by  Taylor  against  Ward,  to 
recover  the  price  of  a  threshing-machine. 

The  declaration  was  for  goods  sold  and  delivered. 

The  question  which  we  shall  consider  is,  whether,  upon  the  facts  in 
this  case,  an  action  lies  for  goods  sold  and  delivered. 

In  order  to  maintain  the  count  for  goods  sold  and  delivered,  it  is 
essential  that  the  goods  should  have  been  delivered  to  the  defendant  or 
his  agent,  or  to  a  third  person  at  his  request,  or  that  something  equiva- 
lent to  a  delivery  should  have  occurred. 

It  is  claimed  that  the  delivery  of  the  machine  to  the  railroad  com- 
pany, at  Canton,  for  transportation  to  the  defendant,  was  a  delivery  to 
him. 

While  it  is  the  rule,  that  the  delivery  of  goods  bought,  to  a  carrier,  to 
be  conveyed  to  the  vendee,  is  a  complete  delivery  to  the  latter,  and 
vests  the  property  in  the  goods  in  him,  yet  the  delivery  to  a  carrier  is 
incomplete  to  charge  the  vendee  for  the  price  of  the  goods,  if  lost, 
unless  the  vendor,  in  so  delivering  them,  exercises  due  care  and  dili- 
gence, so  as  to  provide  the  consignee  with  a  remedy  over  against  the 
carrier.  Chitty  on  Contracts,  440;  Buckman  v.  Levi,  3  Camp.  414  ; 
Clarke  v.  Ilutchings,  14  East,  475. 

Taylor  consigned  this  machine,  not  to  Ward,  but  to  himself,  to  the 
care  of  Ward.  Whether  the  delay  in  carrying  the  machine  to  its  place 
of  destination  was  occasioned  by  the  loss  of  time  between  the  manufac- 
tory at  Canton  and  Cincinnati,  or  between  Cincinnati  and  Metropolis, 
Ward  was  cut  off  from  any  remedy  against  the  carrier.  The  contract 
for  safe  carriage  is  between  the  carrier  and  consignee,  and  the  latter  has 
the  legal  right  of  action. 

In  Evans  v.  Martell,  1  Ld.  Raym.  271,  it  was  held  per  totam  curiam: 
"  If  goods,  by  bill  of  lading,  are  consigned  to  A,  A  is  the  owner  and 
must  bring  the  action  against  the  master  of  the  ship,  if  they  are  lost. 

"But,  if  the  bill  be  special,  to  be  delivered  to  A  to  the  use  of  B, 
B  ought  to  bring  the  action.  But  if  the  bill  be  general  to  A,  and  the 
invoice  only  shows  that  they  are  upon  the  account  of  B,  A  ought 
always  to  bring  the  action,  for  the  property  is  in  him,  and  B  has  only 
a  trust." 

This  question  cannot  be  determined  by  the  relations  between  Ward 
and  Taylor  merely.  The  carrier  is  a  third  parly,  and  in  case  of  an  ac- 
tion, has  the  right  to  insist  that  the  party  alone  entitled  should  sue. 
Ward  could  maintain  no  action  against  the  carrier;  Taylor  could. 

Had  tin;  machine  been  lost,  the  delivery  to   the   railroad  company 


SECT.  VI.]  WARD   V.    TAYLOR.  303 

would  have  been  incomplete,  under  the  authorities  cited,  to  charge 
Ward  for  the  price  of  it.  And,  although  the  machine  was  not  lost, 
that  should  not  change  the  effect  of  the  act  of  delivery  to  the  carrier,  as 
to  whether  it  amounted  to  a  delivery  to  Ward. 

It  is  further  urged,  that  the  machine  coming  into  the  possession  of 
J.  F.  Mills  &  Co.,  at  Cincinnati,  the  agents  of  Ward,  that  amounted  to 
a  delivery  to  Ward. 

But  it  came  to  them  only  in  pursuance  of  the  shipment,  en  route  to 
Metropolis,  "via  Cincinnati,  care  of  J.  F.  Mills  &  Co.,"  as  helpers-on 
of  the  forwarding  of  the  machine  to  its  destination  to  Taylor,  and 
no  greater  effect,  as  regards  delivery,  is  to  be  given  to  their  recep- 
tion of  it  for  that  purpose,  than  to  the  receiving  of  it  by  the  railroad 
Company. 

There  was  no  actual  deliver}*  of  the  machine  to  Ward  at  Metropolis, 
nor  was  it  stored  or  left  there  for  him  ;  but  on  the  failure  to  pay  the 
freight  and  charges,  the  boat  carried  away  the  machine,  and  delivered 
it  at  St.  Louis  to  Koenig  &  Co.,  agents  of  C.  Aultman  &  Co.,  and  cor- 
respondents of  Taylor,  who  assumed  to  pay  the  freight  and  charges  for 
Taylor. 

He  has  never  parted  with  the  machine,  and  is  not  entitled  absolutely 
to  the  price.  The  evidence  shows  no  more  than  a  breach  of  contract 
in  refusing  to  receive  the  machine,  and  we  are  of  opinion  that  the  de- 
livery to  the  railway  company  did  not  constitute  a  complete  delivery  to 
Ward,  so  as  to  charge  him  for  the  price  of  the  machine  ;  because,  being 
consigned  to  Taylor  himself,  it  was  not  put  into  such  a  course  of  con- 
veyance as  that  in  case  of  a  loss,  Ward  might  have  had  his  indemnity 
against  the  carrier. 

In  Turner  v.  Trustees,  etc.,  6  Eng.  L.  &  Eq.  R.  507,  the  consignment 
being  to  the  consignors  or  order,  it  was  held,  notwithstanding  the  goods 
were  placed  on  the  ship  of  the  vendee,  that  there  was  no  delivery  as 
such  to  him,  because  the  vendors  had  purposely  restrained  the  effect  of 
deliver}'  on  board  the  vessel,  still  reserving  to  themselves  the  jus 
disponendi. 

As  Taylor  intentionally  reserved  to  himself  the  rightful  power  of  dis- 
position of  the  machine  in  question,  as  against  Ward,  he  cannot, 
because  he  was  not  called  on  to  exercise  it,  be  permitted  to  deny  his 
possession  of  that  right  which  he  expressly  reserved,  and  would  have 
asserted,  had  occasion  required. 

We  think  the  common  count  for  goods  sold  and  delivered  is  not 
maintainable  in  this  case,  and  that  a  recovery  can  only  be  had  under  a 
special  count  upon  the  contract,  for  not  accepting  the  machine,  or,  may 
be,  a  count  for  goods  bargained  and  sold. 

This  being  a  sufficient  ground  upon  which  to  reverse  the  judgment,  it 
is  unnecessary  to  consider  the  various  errors  assigned. 

The  judgment  of  the  court  below  is  reversed  and  the  cause  remanded. 

Judgment  reversed. 


304  PETERS   V.   ELLIOTT.  [CHAP.  II. 


PETERS   v.    ELLIOTT. 
Supreme  Court  of  Illinois,  September  Term,  1875. 

[Reported  in  78  Illinois,  321.] 

Appeal  from  the  Circuit  Court  of  Mercer  County  ;  the  Hon.  George 
W.  Pleasants,  Judge,  presiding. 

This  was  a  suit  in  replevin,  brought  by  Peters,  Fuhlhage,  &  Co.,  to 
recover  the  possession  of  200  barrels  of  flour. 

The  flour  had  been  levied  upon  and  taken  out  of  the  hands  of  the 
Chicago,  Burlington,  and  Quincy  Railroad  Company  by  a  constable,  as 
the  property  of  Cannon  &  Van  Liew,  under  four  several  writs  of 
attachment  issued  against  them.  The  defendants  in  the  suit  are,  the 
constable,  in  whose  possession  under  the  levy  the  flour  was,  and  the 
plaintiffs  in  the  attachment  suits.  The  controversy  was  as  to  the  pro- 
perty in  the  flour  at  the  time  of  the  levy  of  the  writs  of  attachment, 
whether  it  was  in  Cannon  &  Van  Liew,  or  in  the  plaintiffs  in  this  suit, 
Peters,  Fuhlhage,  &  Co. 

The  evidence  consisted  of  a  shipping-receipt,  a  draft,  and  a  written 
stipulation  of  facts,  as  follows  :  — 

Chicago,  Burlington,  and  Quincy  Railroad  Line. 
■KT0     236  Viola,  III.,  April  30,  1874. 

Received  from  Cannon  &  Van  Liew,  as  consignors,  the  articles 
marked  and  weighed,  as  follows  : 

ARTICLES.  MARKS  AND  NUMBERS.  WEIGHT. 

200  bbls.  Flour, 

Shipped  in  cars,  Nos.  716  and  810. 

(More  or  less). 

To  be  billed  to 

Peters,  Fuhlhage,  &  Co., 
(Original.)  East  St.  Louis,  111. 

*  *  * 

This  receipt  is  not  transferable. 

A.  O.  Waterman, 
(1033.)  Freight  Agent. 

<M   000.  Aledo,  III.,  April  30th,  1874. 

At  sight,  pay  to  the  order  of  McKinney,  Gilmore,  &  Co.  one  thou- 
sand dollars,  and  charge  the  same  to  account  of 

Cannon  &  Van  Liew. 

To  Peters,  Fuhlhage,  &  Co., 

St.  Louis,  Mo. 


SECT.  VI.]  PETERS   V.    ELLIOTT.  305 

INDORSEMENT. 

Pay  Valley  Nat.  Bank,  St.  Louis,  Mo. 

McKlNNEY,  GlLMORE,  &  Co. 

E.  E.  Moses,  Teller. 

Stipulation  as  follows  :  — 

"It  is  admitted  by  the  defendants  that  the  plaintiffs  paid  to  the 
Valley  National  Hank  of  St.  Louis,  Mo.,  81,000,  on  the  2d  day  of  May, 
a.  d.  1874,  on  the  above  draft,  and  that  to  said  draft  was  attached 
the  said  shipping-receipt  signed  by  the  agent  of  the  Chicago,  Burling- 
ton, and  Quincy  Railroad  Company,  at  Viola,  111. 

"  It  is  further  admitted,  that  the  said  draft  was  mailed  to  the  said 
Valley  National  Bank  of  Missouri,  on  the  30th  day  April,  a.  i>. 
1874,  by  McKinney,  Gilmore,  &  Co.,  and  reached  said  bank  with  the 
shipping-receipt  attached  in  the  ordinary  way,  and  that  said  plaintiffs 
paid  said  draft  in  good  faith,  and  had  not,  at  the  time  they  paid  the 
same,  any  knowledge  of  the  existence  of  any  attachment  suit,  or  of 
any  levy  on  said  flour,  by  virtue  of  any  process  of  law. 

"  It  is  further  stipulated,  that  Cannon  &  Van  Liew  had  not,  at  the 
time  of  the  shipment  of  said  flour  to  the  plaintiffs,  nor  at  the  time  it  was 
levied  on  by  said  attachments,  sold  or  contracted  to  sell  said  flour  to 
said  plaintiffs,  but  that  said  flour  was  simply  consigned  to  said  plain- 
tiffs, as  commission  merchants,  to  sell  and  account  for  the  proceeds 
to  said  Cannon  &  Van  Liew. 

"  It  is  further  stipulated,  that  said  draft  was  drawn  on  the  morn- 
ing of  April  30th,  1874,  and  delivered  to  McKinney,  Gilmore,  &  Co. 
before  12  o'clock  in  the  forenoon  of  said  day,  with  said  shipping-re- 
ceipt for  the  flour  in  controversy,  by  Cannon  &  Van  Liew,  who  then 
said  :  '  You  hold  said  flour  for  your  security.'  That  McKinney,  Gil- 
more, &  Co.  held  a  note  against  said  Cannon  &  Van  Liew  for  8600, 
which  the  said  draft  and  receipt  were  to  secure,  and  which  was  after- 
wards, when  the  $1,000  were  collected,  surrendered  to  said  Cannon  & 
Van  Liew,  with  the  remainder  of  $400  placed  to  their  credit,  and  paid 
out  on  their  order. 

"  It  is  further  admitted,  that  the  said   McKinney,  Gilmore,  &  Co. 
•  placed  said  draft  and  shipping-receipt  in  the  post-office  in  Aledo,  by  3 
o'clock  in  the  afternoon  of  said  day,  directed  to  the  National  Valley 
Bank  of  St.  Louis,  for  collection. 

"  It  is  further  admitted,  that  the  several  attachment  suits  offered  in 
evidence  by  the  defendants  were  not  commenced  until  2  o'clock  in 
the  afternoon  of  the  said  day,  and  the  property  was  not  levied  upon 
until  after  that  time." 

It  was  admitted  that  the  four  writs  of  attachment  in  favor  of  the  de- 
fendants, against  Cannon  cS:  Van  Liew,  were  issued  and  levied  upon 
the  flour  on  the  30th  day  of  April,  1874,  and  that  judgments  were  ren- 
dered afterward  in  the  suits,  against  Cannon  &  Van  Liew,  in  favor  of 
the  several  plaintiffs. 

20 


306  PETERS   V.    ELLIOTT.  [CHAP.  II. 

Messrs.  Basselt  and  Wharton,  for  the  appellants. 
Messrs.  Pepper  and  Wilson,  for  the  appellees. 
Mu.  Justice  Sheldon  delivered  the  opinion  of  the  court :  — 
It  is  admitted  by  the  counsel  for  the  appellees,  that,  ordinarily,  a 
sale,  mortgage,  or  pledge  of  property  in  the  course  of  transportation, 
may  be  legally  made,  and  the  title  passed  by  the  delivery  of  the  ship- 
ping-bill.    But  it  is  contended  that  the  rule,  being  received  in  its  full 
force,  does  not,  under  the  circumstances  of  this  case,  aid  the  claim  of 
right  to  this  property   which   is    here    asserted    on   the    part   of   the 
plaintiffs. 

It  is  first  claimed  that  no  right  to  the  flour  could  pass  by  the  de- 
livery of  the  shipping-receipt,  because  of  the  provision  in  it,  that  it 
was  not  transferable. 

It  is  enough  to  say,  that,  whatever  the  reason  of  this  provision,  it 
must  have' been,  for  some  purpose,  in  the  interest  of  the  railroad  com- 
pany. As  the  company  intended  and  undertook  to  carry  and  deliver 
the  flour  to  the  consignees,  the  delivery  of  the  shipping- receipt  to 
them,  or  for  their  benefit,  was  only  to  the  strengthening  of  their  right 
to  have  the  delivery  of  the  flour  made  to  them,  and  it  is  not  perceived 
how  plaintiffs',  the  consignees,  assertion  of  right  to  the  property, 
through  a  delivery  of  the  receipt,  should  interfere  with  any  interest  of 
the  railroad  company,  or  any  object  of  this  provision  in  the  shipping- 
receipt.  We  do  not  conceive  that  it  has  any  significance  in  its  bearing 
upon  the  rights  of  the  parties  iu  this  suit. 

It  is  then  objected  that  there  was  no  valid  sale  or  pledge  to 
McKinney,  Gilmore,  &  Co.,  or  to  the  plaintiffs,  of  the  flour  prior  to 
the  levy  of  the  attachments,  because  the  former  parted  with  nothing 
for  the  draft ;  that  they  neither  surrendered  up  the  note  for  $600, 
upon  which  the  drawers  were  indebted  to  them,  nor  paid  to  the  drawers 
the  excess  of  $400  above  the  note,  until  after  the  draft  was  collected 
and  the  money  remitted  to  them  from  St.  Louis  ;  that  they  merely  for- 
warded the  draft  for  collection  ;  that  it  was  a  voluntary  pledge  to 
them.  The  pledge  of  the  property  by  delivery  of  the  shipping-receipt, 
if  made  to  secure  a  pre-existing  debt,  would  be  as  valid  as  if  made  for 
new  advances. 

There  was  an  acknowleged  indebtedness  of  $000  to  McKinney.  Gil- 
more,  &  Co.,  which  the  draft  and  shipping-receipt  were  to  secure. 
This  would  form  a  sufficient  consideration  for  a  pledge  of  the  pro- 
perty to  them,  if  it  were  to  be  regarded  as  one  to  them  alone. 

The  excess  of  the  amount  of  the  draft  which  they  received  above 
their  indebtedness,  the  $400,  might  have  been  garnisheed  in  the  hands 
of  McKinney,  Gilmore,  &  Co.  by  these  attaching  creditors,  but  the  lat- 
in could  not  take  the  flour  from  the  former.  By  the  delivery  of  the 
draft  and  shipping-receipt  to  McKinney,  Gilmore,  &  Co.,  Cannon  & 
Van  l.iew  were  divested  of  the  title  to  the  Hour,  so  far  as  was  neces- 
sary to  protect  the  paymenl  of  the  draft;  their  interest  then  was  in  the 
surplus  only,  and  their  attaching  creditors  acquired  no  greater  interest 
than  they  possessed.     Schweizer  v.  Tracy,  76  111.  345. 


SECT.  VI. J  PETERS    V.    ELLIOTT.  307 

But  it  is  insisted  that,  whatever  the  rights  of  McKinney,  Gilinore,  & 
Co.  may  have  been,  as  the  plaintiffs  did  not  pay  the  draft  until  some 
days  after  the  levy  of  the  attachments,  they  could  have  acquired  no 
i«i<rht  to  the  property  until  at  that  time,  and  that  it  must  have  been 
acquired  from  McKinney,  Gilmore,  cSt  Co.,  but  that  the  latter,  at  that 
time,  could  not  transfer  any  light  to  the  property,  because  it  was  in 
the  adverse  possession  of  the  officer,  under  the  attachments  ;  that  their 
claim  to  the  property  was  then  but  a  right  of  action  for  the  property, 
which,  under  the  law,  cannot  be  sold  or  assigned,  and  various  authori- 
ties are  eil  sd  to  that  point. 

We  do  not  consider  that  the  state  of  facts  in  this  case  brings  the 
claim  of  the  plaintiffs  within  the  range  of  the  objection  taken,  or  of 
the  authorities  cited. 

The  simultaneous  acts,  of  the  shipment  of  the  flour,  drawing  the 
draft  and  the  delivery  of  the  same,  together  with  the  railroad  receipt 
for  the  flour  to  the  payees  of  the  draft,  McKinney,  Gilmore,  &  Co., 
expressed  the  intention  of  the  drawers,  that  the  drawees  should  pay 
the  amount  of  the  draft  and  reimburse  themselves  for  the  payment, 
out  of  the  flour.  It  was  a  request  to  the  drawees,  these  plaintiffs,  to 
pay  the  draft,  and  an  intended  transfer  of  the  flour  as  a  security  to 
protect  them  in  the  acceptance  and  payment  of  the  draft.  At  the 
time.  Cannon  &  Van  Liew  were  the  absolute  owners  of  the  flour,  and 
had  the  full  power  of  disposition  of  it.  Their  intention  and  purpose 
should  have  effect,  unless  there  be  some  rule  of  law  which  forbids. 
There  is  none  such,  but,  on  the  contrary,  the  law  sustains  and  gives 
effect  to  transactions  of  this  character. 

It  is  well  settled,  that,  where  a  party  consigns  goods  to  another,  and 
thereupon  draws  upon  the  consignee  for  funds,  accompanying  the 
draft  with  the  delivery  of  the  bill  of  lading,  or  shipping-receipt,  as 
collateral  security  for  its  payment,  the  acceptance  and  payment,  by 
the  consignee,  of  the  draft  accompanied  with  the  bill  of  lading  or  ship- 
ping-receipt, vests  in  him  a  special  property  in  the  goods,  sufficient  to 
maintain  replevin  against  an  officer  who.  after  such  delivery,  attaches 
them  upon  a  writ  against  the  general  owner. 

The  bill  of  lading,  or  shipping-receipt,  in  such  case,  is  a  symbol  of 
the  goods,  and  the  delivery  thereof,  with  the  intention  to  transfer  the 
property  in  the  goods,  is  a  symbolical  delivery  of  tin1  goods.  Michigan 
Central  Railroad  Company  r.  Phillips  et  ah,  GO  111.  190;  Ilaille  v. 
Smith,  1  Bos.  ,v  Pull.  563;  llolbrook  v.  Wight,  24  Wend  169;  Cros- 
venor  '•.  Phillips,  2  Hill,  117;  The  Bank  of  Rochester  v.  Jones.  4 
Comst.  197;  Gibson  v.  Stevens,  s  How.  384;  Allen  v.  Williams.  12 
Pick.  297;  National  Bank  of  Cairo  v.  Crocker,  111  Mass.  163;  First 
National  Bank  /•.  Dearborn,  115  id.  21!». 

The  delivery  of  the  shipping-receipt  took  place  before  the  lew  of  the 
attachments,  but,  as  payment  was  not  made  of  the  draft  until  some 
days  after  such  levy,  it  is  supposed  by  appellants'  counsel  that  the 
plaintiffs9  title  had  its  origin  at  the  time  of  such  payment,  and  so  must 


308  WIGTON    V.    BOWLEY.  [CHAP.  IL 

yield  to  the  prior  levy  of  the  attachments.  But  the  interest  acquired 
by  the  plaintiffs  in  the  flour  dates  back  to  the  time  of  the  delivery  of 
the  draft  and  shipping-receipt  to  Mclvinuey,  Gilmore,  &  Co.  The  de- 
livery to  the  latter  is  to  be  regarded  as  one  made  to  them  for  the  use 
of  the  plaintiffs,  vesting  the  property  in  the  latter  provisionally,  — 
that  is,  in  case  of  their  acceptance  and  payment  of  the  draft.  The 
plaintiffs,  from  the  time  of  that  delivery,  had  a  lien  upon  the  flour  for 
the  advance  they  should  make,  with  possession  in  themselves,  for  the 
constructive  possession  of  McKinney,  Gilmore,  &  Co.  is  to  be  regarded 
as  theirs.  And,  as  respects  the  right  of  the  plaintiffs,  we  do  not  con- 
ceive it  makes  any  difference  that  McKinney,  Gilmore,  &  Co.  paid 
nothing  for  the  draft ;  that  they  received  it  to  pay  a  debt  of  $600  to 
themselves,  and  to  pay  over  the  balance  of  $400  to  Cannon  &  Van 
Liew  ;  or  whether  there  was  any  consideration  whatever  between  Can- 
non &  Van  Liew  and  the  payees  of  the  draft. 

The  draft  came  to  the  plaintiffs  with  the  shipping-receipt  attached 
to  it.  They  paid  it  in  entire  good  faith,  with  no  notice  of  the  attach- 
ments or  their  levy.  They  were  entitled  to  make  the  payment  on  the 
credit  of  the  flour,  and  to  hold  the  flour  which  the  shipping-receipt 
represented,  for  their  security  in  making  the  payment.  It  would  be, 
in  effect,  as  if,  at  the  time  of  making  the  draft,  a  mortgage  of  the 
flour  had  been  given  to  the  drawees  to  secure  them  in  the  payment 
they  should  make  of  the  draft.  A  mortgage  may  be  made  to  secure 
future  advances,  and  will  be  effective  to  that  end,  at  least  when  the 
future  advances  are  made  in  good  faith,  without  notice  of  any  inter- 
vening adverse  right. 

Our  conclusion,  then,  is,  that  the  plaintiffs  had  at  least  the  interest 
of  a  lien  upon  this  flour  to  secure  the  advance  they  made  upon  the 
draft,  which  is  to  be  regarded  as  acquired  at  the  time  of  the  delivery 
of  the  draft  and  shipping-receipt  to  McKinney,  Gilmore,  &  Co.  ;  and 
that  these  attaching  creditors  had  no  right  afterward  to  levy  upon  and 
take  the  property  out  of  the  hands  of  McKinney,  Gilmore,  &  Co.,  in 
whose  constructive  possession  it  was  for  the  plaintiffs,  before  their 
claim  upon  the  property  was  discharged. 

The  judgment  must  be  reversed.  Judgment  reversed. 


M ATTAR  WIGTON    v.    EDWIN   BOWLEY. 

Supreme  Judicial   Court   of  Massachusetts,  November  5,  1880- 
January    17,    1881. 

[Reported  in  180  Massachusetts,  252.] 

Tort  for  the  conversion  of  112  barrels  of  flour.     Answer,  a  general 
denial.     The    case   was   submitted   to  the   Superior   Court,   and    after 


SECT.  VI.] 


WIGTON    V.    BOWLEY.  309 


judgment  for  the  defendants,  to  this  court,  on  appeal,  upon  agreed 
facts,   in  substance  as  follows:  — 

The  plaintiffs  are  proprietors  of  flouring-mills  in  Hart,  Michigan; 
and.  on  October  18,  1878,  they  received  from  Henry  Fenno,  who  was 
then  doing  business  in  Boston,  a  letter  asking  for  the  price  per  car- 
load of  their  Hour  delivered  on  hoard  the  cars.  On  October  28,  the 
plaintiffs  sent  to  Fenno  the  figures  requested;  and,  on  October  31, 
Fenno  ordered  of  the  plaintiffs  a  car-load  of  the  flour  at  the  price 
named,  authorized  them  to  draw  on  him  for  the  amount  at  ten  days' 
sight,  and  referred  them  to  persons  with  whom  he  had  dealt.  The 
plaintiffs,  having  obtained  satisfactory  information  from  the  persons 
indicated  as  to  Fenno's  pecuniary  standing,  on  November  13,  1878, 
loaded  a  car  with  the  flour  ordered,  directed  and  consigned  to  Fenno  at 
Boston;  and,  at  the  same  time,  they  drew  on  Fenno  as  directed.  The 
draft  and  the  bill  of  lading  for  the  Hour,  in  which  Fenno  was  named  as 
consignee,  were  sent  to  a  bank  in  Boston,  with  the  instruction  to 
deliver  the  bill  of  lading  to  Fenno,  if  the  draft  was  accepted.  The 
draft  was  never  accepted,  and  the  bill  of  lading  was  never  delivered. 
There  is  no  evidence  to  show  that  it  was  ever  presented  to  Fenno  for 
acceptance. 

On  December  5,  1878,  Fenno  executed  to  the  defendants  an  order  on 
the  freight  agent  of  the  Boston  and  Albany  Railroad  Company  to 
deliver  to  the  defendants  the  flour  in  question  ;  and  the  defendants 
paid  the  full  purchase  price  of  the  flour  to  Fenno.  The  defendants 
presented  the  order  to  the  freight  agent  of  said  company,  and  he 
delivered  the  flour  to  them,  according  to  the  usage  of  that  and  other 
railroad  corporations,  without  exacting  the  production  of  the  bill  of 
lading'.  On  December  9,  1878,  the  bill  of  lading  and  the  draft  were 
returned  to  the  plaintiffs  by  the  bank.  The  flour  so  delivered  to  the 
defendants  is  the  same  flour  which  the  plaintiffs  had  consigned  to 
Fenno.  The  plaintiffs  have  never  received  anything  in  payment  or 
part  payment  thereof.  Fenno  failed  immediately  after  he  executed  the 
order  to  the  defendants,  and  his  testimony  cannot  be  procured  by  either 
party. 

If,  upon  the  above  facts  and  such  inferences  as  a  jury  would  be 
authorized  to  draw,  the  plaintiffs  were  entitled  to  recover,  judgment 
was  to  be  entered  for  them  for  $518.56,  and  interest  from  the  date  of 
the  writ ;  otherwise,  judgment  for  the  defendants. 

F.   W.  Griffin  and  S.  T  Horn's,  for  the  plaintiffs. 

//.   Carter,  for  the  defendants. 

Colt,  J.  Upon  the  agreed  facts,  the  court  below  was  justified  in 
finding  that  the  property  in  the  Hour  was  transferred  to  Fenno,  the 
purchaser,  when  it  was  delivered  for  transportation  to  the  railroad 
company  in  Michigan. 

It  appears  that  Fenno,  having  obtained  from  the  plaintiffs  the  price 
asked  for  their  flour  delivered  on  board  the  cars,  ordered  a  car  load  at 
the  price  named,  and  authorized  the  plaintiffs  to  draw  on  him  for  the 


310  WIGTOS    V.    BOWLEY.  [CHA.P.  II. 

amount  at  ten  days'  sight,  at  the  same  time  giving  references  to  other 
parties  as  to  his  pecuniary  standing.  The  plaintiffs  took  time  to 
satisfy  themselves  as  to  his  responsibility,  and  then  delivered  the  flour 
on  board  the  cars,  directed  to  Fenno  at  Boston,  and  consigned  to  him. 
The  receipt  given  by  the  railroad,  sometimes  called  the  shipping-receipt 
or  bill  of  lading,  was  taken  in  his  name.  These  facts  sufficiently  show 
that  the  plaintiffs  did  not  intend  to  retain  their  hold  on  the  property, 
after  it  was  taken  by  the  carrier,  as  security  for  the  payment  of  the 
price. 

In  the  sale  of  specific  chattels,  an  unconditional  deliver}'  to  the  buyer 
or  his  agent,  or  to  a  common  carrier  consigned  to  him,  whether  a  bill 
of  lading  is  taken  or  not,  is  sufficient  to  pass  the  title,  if  there  is  nothing 
to  control  the  effect  of  it.  If  the  bill  of  lading  or  written  evidence  of 
the  delivery  to  a  carrier  be  taken  in  the  name  of  the  consignee,  or  be 
transferred  to  him  by  indorsement,  the  strongest  proof  is  afforded  of 
the  intention  to  transfer  the  property  to  the  vendee.  Merchants' 
National  Bank  v.  Bangs,  102  Mass.  291.  If  the  vendor  intends  to 
retain  the  right  to  dispose  of  the  goods  while  the}'  are  in  course  of 
transportation,  he  must  manifest  that  intention  at  the  time  of  their 
delivery  to  the  carrier.  It  is  not  the  secret  purpose,  but  the  intention 
as  disclosed  by  the  vendor's  acts  and  declarations  at  the  time,  which 
governs.  Foster  v.  Ropes,  111  Mass.  10;  Upton  v.  Sturbridge  Mills, 
111  Mass.  446.  Where  there  is  conflicting  evidence  as  to  intention, 
the  question  is  for  the  jury.  It  cannot  be  disposed  of  as  matter  of 
law,  unless  the  evidence  will  justify  a  finding  but  one  wa}\  National 
Bank  of  Cairo  v.  Crocker,  111  Mass.  163  ;  National  Bank  of  Chicago 
v.  Bailey,  115  Mass.  228;  Alderman  v.  Eastern  Railroad,  115 
Mass.  233. 

In  the  case  at  bar,  the  fact  that  the  shipping-receipt  was  not  deliv- 
ered to  Fenno,  but  was  sent  with  the  draft  to  a  bank  in  Boston,  is  not 
conclusive  evidence,  as  against  the  rights  of  the  consignee,  that  the 
plaintiffs  intended  not  to  part  with  the  title.  It  was  no  part  of  the 
contract  of  sale.  It  was  given  in  the  name  of  Fenno,  and  could  not 
be  transferred  by  the  plaintiffs  so  as  to  change  title  in  the  property 
without  his  indorsement.  What  passed  between  the  plaintiffs  and 
the  bank  in  Boston,  not  communicated  to  Fenno,  cannot  affect  his 
rights. 

It  is  not  shown  that  the  acceptance  or  payment  of  the  draft  was  a 
condition  precedent  to  a  change  of  title;  and  the  finding  of  the  court 
below  cannot  be  disturbed.  Judgment  affirmed. 


sect,  vi.]  dows  v.  i*j;i;i;in.  311 

DOWS   v.   PERRIN. 

New  Yokk  Court  of  Appeals,  December,  1857. 

[Reported  in  16  N.  Y.  325.] 

Appeal  from  the  Superior  Court  of  New  York  City.  The  action  was 
brought  to  recover  the  possession  of  about  live  thousand  bushels  of 
corn.  On  the  trial,  before  Mr.  Justice  Oakley,  it  was  proved  that  Dows 
&  Carey,  commission  merchants  of  New  York  City,  had  agreed  with 
I,  F.  Mack,  of  Rochester,  to  advance  thirty-eight  cents  per  bushel  upon 
corn  which  he  should  consign  to  them,  upon  his  delivering  to  their 
agent  at  Rochester  shipping-bills  therefor;  that  Mack  delivered  to 
their  agent,  on  the  8th  of  August,  1818,  bills  purporting  the  shipment 
of  the  corn  in  question,  at  Buffalo,  by  two  canal-boats,  to  the  care  of 
Dows  &  Carey,  New  York,  for  account  of  I.  F.  Mack.  The  bills  were 
signed  "  Niles  &  Wheeler,  per  E.  H.  Walker."  E.  H.  Walker  was  a 
clerk  in  the  office  of  Niles  &  Wheeler,  who  were  forwarders  at  Buffalo, 
acting  agents  of  a  line  in  which  they  and  the  defendant  Caleb  were 
interested  as  partners,  and  were  also  engaged  in  the  purchase  and  sale 
of  grain  on  their  own  account.  Upon  the  delivery  of  these  bills  to 
their  agent,  the  plaintiffs  accepted  and  subsequently  paid  drafts  drawn 
upon  them  by  Mack  for  the  amount  of  the  stipulated  advances.  The 
defendants  offered  to  prove  as  follows  :  the  corn  originally  belonged  to 
Niles  &  Wheeler,  who  owned  and  had  it  in  their  actual  possession,  at 
Buffalo,  on  the  8th  of  August,  1818.  On  that  day  they  agreed  with 
one  James  O.  Bloss  to  give  him  the  refusal,  or  right  to  purchase  the 
corn,  at  forty-four  cents  a  bushel,  until  Friday,  the  11th  of  August; 
that  the  corn  should  be  shipped  on  the  boats  of  Niles  &  Wheeler,  as 
their  property,  and  should  become  Bloss'  property  if  paid  for  within 
the  stipulated  time,  but  not  otherwise.  It  was  shipped  accordingly  on 
two  boats,  and  the  boats  left  Buffalo  on  the  9th  and  10th  of  August, 
with  regular  bills  of  lading,  signed  b\r  their  captains  and  Niles  ifc 
Wheeler,  respectively,  consigning  the  corn  to  M.  M.  Caleb  &  Co.,  of 
New  York,  a  forwarding  firm  of  which  Niles  &  Wheeler  were  members. 
The  defendant  Perrin  was  master  of  one  of  the  boats,  and  Caleb,  the 
other  defendant,  was  one  of  the  firm  of  M.  M.  Caleb  &  Co.  Bloss 
obtained  the  instruments,  upon  the  production  of  which  the  plaintiffs 
made  their  advances,  by  falsely  representing  to  Walker,  the  clerk  of 
Niles  &  Weeeler,  that  he  had  bought  the  corn  of  the  latter:  and,  as 
soon  as  they  were  obtained, he  transmitted  them  to  Mack,  at  Rochester, 
who  delivered  them  to  the  plaintiffs'  agent,  procured  the  advances 
upon  them,  and  immediately  absconded,  being  then  insolvent.  On  the 
eleventh  day  of  August,  the  last  day  Bloss  hud  to  pay  for  the  corn,  he 
informed  Niles  &  Wheeler  that  he  could  not  pay  for  it  ;  that  he  had 
been  acting  for  Mack,  and  had  no  interest  in  the  corn,  and  that  he 


312  DOWS   V.    PERRIN.  [CHAP.  II. 

had  obtained  the  shipping-bills  from  Walker,  their  clerk.  This  was  the 
first  information  they  had  of  the  transaction  with  Walker,  and  they 
immediately  took  steps  to  notify  the  plaintiffs  by  telegraph  and  to 
guard  their  own  rights.  This  evidence  was  excluded  by  the  court, 
under  exceptions  by  the  defendants. 

It  was  proved  by  the  defendants  that  Walker,  the  clerk  from  whom 
Bloss  obtained  the  shipping-bills,  had  in  fact  no  authority  to  give  them. 
He  had  never  signed  shipping-papers  of  a  like  character,  nor  any  the 
effect  of  which  was  to  transfer  or  authorize  the  transfer  of  the  property 
of  Niles  &  Wheeler.  He  had  signed  papers  where  Niles  &  Wheeler 
had  received  freight  which  came  down  Lake  Erie,  and  which  the}' 
shipped,  by  boats  other  than  their  own,  to  places  along  the  canal,  to 
enable  the  captains  or  owners  of  the  boats  to  comply  with  the  statute 
in  relation  to  clearances  on  the  canal,  but  never  when  the  property  was 
destined  to  New  York,  except  when  it  was  sent  to  the  partners,  M.  M. 
Caleb  &  Co.  The  papers  he  had  signed  were  always  delivered  to  the 
captains,  with  a  view  to  their  obtaining  clearances,  and  he  signed  those 
in  question  under  the  belief  that  they  were  to  be  used  for  the  same 
purpose.  These  did  not  purport  to  be  regular  bills  of  lading,  being  on 
a  single  paper  and  relating  to  four  distinct  boats  and  shipments,  and 
not  being  signed  by  the  captains  or  masters  of  any  of  them.  There 
was  no  evidence,  on  the  part  of  the  plaintiffs,  as  to  Walker's  authority, 
except  that  in  a  single  instance  he  had  signed  a  shipping-bill,  for  prop- 
erty which  Niles  &  Wheeler  received  from  the  West,  and  shipped,  by 
the  boats  of  other  forwarders,  to  a  point  on  the  canal  between  Buffalo 
and  Albany.  The  cause  was  finally  submitted  to  the  jury,  under  instruc- 
tions that  the  only  question  was  as  to  Walker's  authority  to  bind  Niles 
&  Wheeler  by  the  so-called  bills  of  lading,  upon  which  Mack  procured 
the  advances  from  the  plaintiff.  Exceptions  were  duly  taken  to  the 
decisions  and  charge  of  the  judge  ;  and  the  jury  gave  a  verdict  for  the 
plaintiffs,  on  which  judgment  was  rendered,  and  was  afterwards,  on 
appeal,  affirmed  by  the  Superior  Court  at  general  term.  The  plaintiff 
Carey  died  after  verdict,  and  the  cause  was  continued  in  the  name  of 
his  survivor,  Dows.     The  defendants  appealed  to  this  court. 

Nicholas  /fill,  for  the  appellants. 

('.   Van  Santvoord,  for  the  respondent. 

Denio,  C.  J.  Assuming  that  Walker  had  power  to  sign  the  bill 
of  lading  on  behalf  of  Niles  &  Wheeler,  and  giving  to  that  paper 
as  a  commercial  instrument  the  effect  which  I  have  attributed  to  it,  was 
it  negotiable  in  such  a  sense  as  to  confer  upon  a  bona  fide  transferee  a 
title  not  affected  by  the  fraud  committed  in  obtaining  it?  Mack  clearly 
could  claim  nothing  under  it.  Taking  the  offer  of  proof  in  connection 
witli  what  was  in  fact  proved,  it  was  obtained  by  Bloss  representing  to 
the  clerk,  in  the  absence  of  his  emploj'ers,  that  those  employers  had 
sold  to  him.  ISloss.  the  corn  in  question,  when  in  fact  no  such  transac- 
tion had  taken  place.  On  the  strength  of  that  representation  the  clerk 
made  out  and  signed  the  bill  of  lading  in  question  on  behalf  of  Niles 


SECT.  VI.]  LOWS    V.    PEREIN.  313 

&  Wheeler,  operating,  as  I  have  shown,  to  transfer  the  corn  to  Mack, 
the  nominee  of  Bloss.  Bloss  acted  in  that  business  on  behalf  of  .Mack, 
in  whose  favor  the  instrument  ran,  under  some  arrangement  which  is 
not  disclosed.  Mack  does  not  stand  in  the  position  of  an  innocent 
holder.  He  is  a  party  to  the  very  instrument  affected  by  the  fraud, 
and  can  claim  nothing  under  it  against  Niles  &  Wheeler,  or  the  de- 
fendants who  hold  the  title  which  they  had.  But  Mack  transferred  the 
paper  to  the  plaintiffs,  who,  I  assume,  advanced  money  upon  it  in  good 
faith  and  without  notice.  If  the  paper  was  negotiable,  with  the  same 
effect  as  a  bill  of  exchange,  or  promissory  note  payable  to  bearer,  the 
plaintiffs  have  a  title  unaffected  by  the  fraud  of  Mack;  otherwise 
they  have  not.  I  think  that  the  courts  have  gone  no  further  upon  this 
subject  than  to  hold  that  the  bona  fide  indorsee  of  a  bill  of  lading,  for 
value,  is  not  liable  to  have  the  property  which  it  represents  stopped  in 
transitu  by  his  consignor  on  account  of  the  non-payment  of  the  pur- 
chase price.  The  right  of  stoppage  in  transitu  obtains  when  the  sale 
was  in  all  respects  valid,  where  there  was  no  condition  attached  to  the 
delivery  to  the  carrier,  and  where  the  title  and  the  right  of  possession 
are  transferred  to  the  purchaser  upon  the  execution  of  the  instrument 
of  sale.  The  right  to  arrest  goods  so  sold  while  in  the  hands  of  the 
carrier,  when  the  sale  was  on  credit  and  the  purchaser  has  failed,  is  one 
conferred  b}'  law  independently  of  an}'  contract  between  the  parties, 
and  it  assumes  the  entire  validity  of  the  contract  of  sale.  The  right  is 
peculiar  in  its  character,  and  bears  no  analogy  to  the  power  to  treat  as 
void  a  transaction  invalid  on  account  of  fraud.  The  right  of  stoppage 
in  transitu  is  cutoff  by  the  transfer  of  the  bill  of  lading  to  a  bona  file 
purchaser,  but  it  by  no  means  follows  that  the  holder  of  such  a  bill, 
void  on  account  of  fraud,  can  confer  a  better  title  than  he  had  himself, 
and  I  am  of  opinion  that  he  cannot  do  so.  The  quality  of  transfer- 
al lility  which  pertains  to  a  bill  of  lading  was  largely  discussed  in  the 
noted  case  of  Lickbarrow  v.  Mason,  on  the  several  occasions  when  that 
case  came  before  the  English  courts.  None  of  the  judges  affirmed 
that  it  was  negotiable  in  the  same  sense  as  a  bill  of  exchange  ;  but  that 
position  must  be  established  in  its  fullest  extent  in  order  to  hold  that 
these  plaintiffs  obtained  a  good  title  by  their  transaction  with  Mack. 
Lickbarrow  v.  Mason  should,  I  think,  be  considered  as  establishing  the 
precise  point  which  arose  in  the  case,  and  nothing  more.  To  that 
extent  it  has  ever  since  been  followed,  and  is  no  doubt  settled  law. 
2  Durn.  &  E.  63;  1  H.  Bl.  367;  2  id.  211;  5  Durn.  £  E.  367,  683. 
The  subsequent  cases  down  to  a  certain  period  have  been  collected  and 
examined  by  the  American  editor  of  Smith's  Leading  Cases.  His 
conclusion  I  understand  to  be,  that  a  bill  of  lading  is  not  negotiable  in 
a  commercial  sense,  and  that,  in  the  absence  of  a  right  of  property 
in  the  consignee,  and  of  a  power  to  sell,  he  cannot  by  any  indorsement 
of  the  bill  of  lading  confer  a  title  to  the  goods  as  against  the  true 
owner.  Vol.  1.  p.  543,  Phil.  ed.  of  1844.  Mack  certainly  had  no  right 
of  property  in  the  corn.      His  pretended  purchase,  effected   through 


314  DOWS   V.    PERRIN.  [CHAP.  II. 

Bloss,  was  utterly  void  on  account  of  fraud.  Niles  &  Wheeler  could 
have  taken  it  from  him  if  lie  had  obtained  the  actual  possession,  and 
could  have  maintained  trespass,  or  replevin  in  the  cepit,  for  any  act  of 
ownership  which  he  might  have  exercised  in  respect  to  it.  Care}' 
v.  Hotailing,  and  Olmsted  v.  Same,  1  Hill,  311,  317.  If  the  bill  of 
lading  had  been  made  out  by  Niles  &  Wheeler,  and  had  been  stolen 
from  their  desk,  where  it  had  been  awaiting  the  payment  of  Bloss,  he 
would  have  obtained  as  good  a  title  to  it  as  he  did  by  procuring  it  by 
the  use  of  the  means  which  he  adopted,  and  this  of  course  would  have 
been  no  title  which  he,  or  any  one  claiming  under  him,  could  have 
asserted.  Brower  v.  Peabody,  3  Kern.  12G.  A  question  similar  in 
principle  lately  came  before  the  Queen's  Bench  in  Gurney  v.  Behrend, 
3  Ellis  &  Bl.  G22.  In  that  case  the  plaintiffs  were  the  bona  fide  holders 
of  a  bill  of  lading  which  had  come  into  the  hands  of  one  Pries,  from 
whom  the  plaintiffs  immediately  obtained  it  as  security  for  an  advance 
of  money.  The  defendant  claimed  under  the  original  owner  and  shipper 
of  the  goods,  wdio  contended  that  the  parties  who  delivered  the  bill  to 
Pries  had  appropriated  it  in  fraud  of  their,  the  shippers',  rights.  Bills 
of  exchange  had  been  drawn  on  London  for  the  purchase  price  of  the 
goods,  and  the  shipper  contended  that  the  bill  of  lading  was  not  to  have 
been  delivered  until  the  bills  of  exchange  were  accepted.  They  were 
refused  acceptance,  and  the  drawers  became  bankrupt,  but  the  bill  of 
lading  was  delivered  over  and  was  then  put  in  circulation,  and  came  to 
the  plaintiffs  bona  fide.  Lord  Campbell,  delivering  the  judgment 
of  the  court,  said:  "A  bill  of  lading  is  not,  like  a  bill  of  exchange 
or  promissory  note,  a  negotiable  instrument  which,  passes  by  mere 
delivery  to  a  bona  fide  transferee  for  a  valuable  consideration,  without 
regard  to  the  title  of  the  parties  who  make  the  transfer.  Although  the 
shipper  may  have  indorsed  in  blank  a  bill  of  lading  deliverable  to  his 
assigns,  his  right  is  not  affected  by  an  appropriation  of  it  without 
his  authority.  If  it  be  stolen  from  him  or  transferred  without  his 
authority,  a  subsequent  bona  fide  transferee  cannot  make  title  under  it 
against  the  shipper  of  the  goods.  A  bill  of  lading  only  represents  the 
goods,  and  in  this  instance  the  transfer  of  the  symbol  does  not  operate 
more  than  a  transfer  of  what  is  represented."  He  added,  that  if  the 
delivery  to  Pries  was  a  misappropriation  of  the  bill  of  lading,  the  ship- 
pers would  have  a  right  to  stop  the  goods  in  transitu.  The  case  was 
decided  upon  another  ground,  namely,  that  no  condition  had  been 
annexed  to  the  delivery  of  the  bill  of  lading  to  Pries.  It  is  true,  it 
cannot  lie  claimed  that  what  was  said  by  the  venerable  Chief  -Justice  is 
strictly  authority  ;  but  as  the  opinion  was  delivered  after  an  adjourn- 
ment, and  seems  to  have  been  prepared  with  care,  and  no  dissent  from 
other  members  of  the  court  was  expressed,  it,  is  entitled  to  great-  weight, 
and  will,  no  doubt,  be  followed  in  the  English  courts.  That  it  was 
intended  to  be  :i  precedent  for  future  cases  is  further  evident  from  what 
was  added  by  the  Chief  Justice  in  conclusion:  "  No  decision  or  doc- 
trine,"  he  said,  "  was  cited  in  the  argument  which  at  all  conflicts  with 


SECT,  VI.]  SHAW    V.    RAILROAD    CO.  315 

the  view  we  have  taken  of  this  case,  and  we  conceive  that  it  is  in 
entire  conformity  With  various  decisions  relied  upon  by  the  plaintiffs." 
Lickbarrow  v.  Mason  had  been  pressed  upon  the  attention  of  the  court 
by  the  plaintiffs'  counsel,  and  the  Chief  Justice  further  added,  that  he 
approved  of  the  decision  in  that  case,  and  of  the  doctrine  that  when  a 
bill  of  lading  is  put  into  circulation  by  the  authority  of  the  owner  of  the 
goods  (the  shipper  or  consignee),  a  bona  fide  transferee  of  an  absolute 
title  is  freed  from  the  equitable  right  of  the  unpaid  vendor  to  stoppage 
in  transitu.  The  same  view  of  the  etl'ect  of  a  bill  of  lading  was  taken 
by  members  of  this  court  in  recent  cases,  where  however  the  precise 
point  was  not  in  judgment.  3  Kern.  028,  per  Comstock,  J.  ;  Farmers 
and  Mechanics'  Bank  v.  Butchers  and  Drovers'  Bank,  16  N.  Y.  110,  by 
Selden,  J.  Without  dwelling  upon  the  point,  1  am  clearly  of  the  opinion 
that  when  a  bill  of  lading  is  obtained  by  fraud  from  the  owner  of  the 
goods,  a  bona  fide  indorsee  or  transferee  has  no  better  title  than  the 
indorser  had.  I  think,  therefore,  that  the  Superior  Court  fell  into  an 
error  upon  this  part  of  the  case. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  with  costs 
to  abide  the  event. 

Comstock,  J.,  did  not  sit  in  the  case;  all  the  other  judges  con- 
curring. Judgment  reversed  and  new  trial  ordered.1 


SHAW   v.    RAILROAD   COMPANY. 
Supreme  Court  of  the  United  States,  October  Term,  1879. 

[Reported  in  101  United  States,  557.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern  Dis- 
trict of  Pennsylvania. 

This  is  an  action  of  replevin  brought  by  the  Merchants'  National 
Bank  of  St.  Louis,  Missouri,  against  Shaw  &  Esrey,  of  Philadelphia, 
Pennsylvania,  to  recover  possession  of  certain  cotton,  marked  "  W  I)  I." 
One  hundred  and  forty-one  bales  thereof  having  been  taken  possession 
of  by  the  marshal  were  returned  to  the  defendants  upon  their  entering 
into  the  proper  bond.  On  Nov.  11,  1874,  Norvell  &  Co..  of  St.  Louis, 
sold  to  the  bank  their  draft  for  $11,947.43  on  M.  Kulin  &  Brother,  of 
Philadelphia,  and,  as  collateral  security  for  the  payment  thereof,  in- 
dorsed in  blank  and  delivered  to  the  bank  an  original  bill  of  lading  for 
one  hundred  and  seventy  bales  of  cotton  that  day  shipped  to  the  last- 
named  city.  The  duplicate  bill  of  lading  was  on  the  same  day  for- 
warded to  Kuhn  &  Brother  by  Norvell  &  Co.  The  Merchants'  Bank 
forwarded  the  draft,  with  the  bill  of  lading  thereto  attached,  to  the 
Bank  of  North  America.     On  November  14,  the  last-named  bank  sent 

1  A  portion  of  the  opinion  (holding  that  there  was  not  sufficient  evidence  to  lie 

submitted  to  the  jury  that  Walker  had  power  to  hind  Niles  £  Wheeler)  is  omitted. 


310  SHAW   V.   RAILROAD    CO.  [CHAr.  II. 

the  draft  —  the  original  bill  of  lading  still  being  attached  thereto — to 
Kuhn  &  Brother  by  its  messenger  for  acceptance.  The  messenger  pre- 
sented the  draft  and  bill  to  one  of  the  members  of  that  firm,  who  ac- 
cepted the  former,  but,  without  being  detected,  substituted  the  duplicate 
for  the  original  bill  of  lading. 

On  the  day  upon  which  this  transaction  occurred,  Kuhn  &  Brother 
indorsed  the  original  bill  of  lading  to  Miller  &  Brother,  and  received 
thereon  an  advance  of  §8,500.  Within  a  few  days  afterwards,  the  cot- 
ton, or  rather  that  portion  of  it  which  is  in  controversy,  was,  through 
the  agency  of  a  broker,  sold  by  sample,  with  the  approval  of  Kuhn  & 
Brother,  to  the  defendants,  who  were  manufacturers  at  Chester,  Penn- 
sylvania. The  bill  of  lading  having  been  deposited  on  the  same  day 
with  the  North  Pennsylvania  Railroad  Company,  at  whose  depot  the 
cotton  was  expected  to  arrive,  it  was  on  its  arrival  delivered  to  the 
defendants. 

The  fact  that  the  Bank  of  North  America  held  the  duplicate  instead 
of  the  original  bill  of  lading  was  discovered  for  the  first  time  on  the  9th 
of  December,  by  the  president  of  the  plaintiff,  who  had  gone  to  Phila- 
delphia in  consequence  of  the  failure  of  Kuhn  &  Brother  and  the  protest 
of  the  draft. 

The  defendants  below  contended  that  the  bill  of  lading  was  nego- 
tiable in  the  ordinary  sense  of  that  word  ;  that  Miller  &  Brother  had 
purchased  it  for  value  in  the  usual  course  of  business,  and  that  they 
thereby  had  acquired  a  valid  title  to  the  cotton,  which  was  not  impaired 
by  proof  that  Kuhn  &  Brother  had  fraudulently  got  possession  of  the 
bill ;  but  the  court  left  it  to  the  jury  to  determine,  — 

1st,  Whether  there  was  any  negligence  of  the  plaintiff  or  its  agents 
in  parting  with  possession  of  the  bill  of  lading. 

2d,  Whether  Miller  &  Brother  knew  any  fact  or  facts  from  which 
they  had  reason  to  believe  that  the  bill  of  lading  was  held  to  secure 
payment  of  an  outstanding  draft. 

The  jury  having  found  the  first  question  in  the  negative  and  the  sec- 
ond in  the  affirmative,  further  found  "the  value  of  the  goods  eloigned" 
to  be  §7,015.97,  assessed  the  plaintiff's  damages  at  that  sum  with  costs, 
for  which  amount  the  court  entered  a  judgment.  Shaw  &  Esre}-  there- 
upon sued  out  this  writ  of  error. 

The  remaining  facts  are  stated  in  the  opinion  of  the  court. 

Mr.  James  E.  Gowen,  for  the  plaintiffs  in  error. 

Mr.  Robert  N.  Willson  and  Mr.  George  Junkin,  contra. 

Mi;.  Justice  Strong  delivered  the  opinion  of  the  court. 

The  defendants  below,  now  plaintiffs  in  error,  bought  the  cotton 
from  Miller  &  Brother  by  sample,  through  a  cotton-broker.  No  bill  of 
lading  or  other  written  evidence  of  title  in  their  vendors  was  exhibited  to 
them.  Hence,  they  can  have  no  other  or  better  title  than  their  vendors 
had. 

The  inquiry,  therefore,  is,  what  title  had  Miller  &  Brother  as  against 
the  bank,  which  confessedly  was  the  owner,   and  which    is   still    the 


BECT.  VI.]  SHAW   V.    RAILROAD    (JO.  317 

owner,  unless  it  has  lost  its  ownership  by  the  fraudulent  act  of  Kuhn  & 
Brother.  The  cotton  was  represented  by  the  bill  of  lading  given  to 
Norvell  &  Co.,  at  St.  Louis,  and  by  them  indorsed  to  the  bank,  to  se- 
cure the  payment  of  an  accompanying  discounted  time-draft.  That 
indorsement  Vested  in  the  bank  the  title  to  the  cotton,  as  well  as  to  the 
contract.  While  it  there  continued,  and  during  the  transit  of  the  cot- 
ton from  St.  Louis  to  Philadelphia,  the  indorsed  bill  of  hiding  was 
stolen  by  one  of  the  firm  of  Kuhn  &  Brother,  and  by  them  indorsed 
over  to  Miller  &  Brother,  for  an  advance  of  $8,500.  The  jury  has 
found,  however,  that  there  was  no  negligence  of  the  bank,  or  of  its 
agents,  in  parting  with  possession  of  the  bill  of  lading,  and  that  Miller 
&.  Brother  knew  facts  from  which  they  had  reason  to  believe  it  was  held 
to  secure  the  payment  of  an  outstanding  draft;  in  other  words,  that 
Kuhn  &  Brother  were  not  the  lawful  owners  of  it,  and  had  no  right  to 
dispose  of  it. 

It  is  therefore  to  be  determined  whether  Miller  &  Brother,  by  taking 
the  bill  of  lading  from  Kuhn  &  Brother  under  these  circumstances, 
acquired  thereby  a  good  title  to  the  cotton  as  against  the  bank. 

In  considering  this  question,  it  docs  not  appear  to  us  necessary  to 
inquire  whether  the  effect  of  the  bill  of  lading  in  the  hands  of  Miller  & 
Brother  is  to  be  determined  by  the  law  of  Missouri,  where  the  bill  was 
given,  or  by  the  law  of  Pennsylvania,  where  the  cotton  was  delivered. 
The  statutes  of  both  States  enact  that  bills  of  lading  shall  be  negotiable 
by  indorsement  and  delivery.  The  statute  of  Pennsylvania  declares 
simply,  they  "  shall  be  negotiable  and  may  be  transferred  by  indorse- 
ment and  delivery  ;  "  while  that  of  Missouri  enacts  that  "  they  shall  be 
negotiable  by  written  indorsement  thereon  and  delivery,  in  the  same 
manner  as  bills  of  exchange  and  promissory  notes."  There  is  no  mate- 
rial difference  between  these  provisions.  Both  statutes  prescribe  the 
manner  of  negotiation  ;  i.  e.,  by  indorsement  and  delivery.  Neither 
undertakes  to  define  the  effect  of  such  a  transfer.1 

We  must,  therefore,  look  outside  of  the  statutes  to  learn  what  they 
mean  by  declaring  such  instruments  negotiable.  What  is  negotiability? 
It  is  a  technical  term  derived  from  the  usage  of  merchants  and  bankers, 
in  transferring,  primarily,  bills  of  exchange  and,  afterwards,  promis- 
sory notes.  At  common  law  no  contract  was  assignable,  so  as  to  give 
to  an  assignee  a  right  to  enforce  it  by  suit  in  his  own  name.  To  this 
rule  bills  of  exchange  and  promissory  notes,  payable  to  order  or  bearer, 
have  been  admitted  exceptions,  made  such  by  the  adoption  of  the  law 
merchant.     They  may  be  transferred  by  indorsement  and  delivery,  and 

1  Similar  statutes  have  been  passed  in  California,  Maryland,  Washington,  and  per- 
haps other  States.  In  Tiedman  v.  Knox,  53  Md.  612,  it  was  held  that  under  the 
Maryland  statute  a  hill  of  lading  is  negotiable  to  the  same  extent  and  with  the  same 
effect  as  a  hill  of  exchange.  Such  legislation  is  very  common  in  regard  to  warehouse 
receipts  (see  S'timson's  Am.  Stat.  Law,  vol.  i.  §  4.57-2),  and  generally  literal  effect 
seems  to  be  given  to  it.  See  Greenbaum  v.  Megibben,  10  Bush,  410  (cf.  First  Nat. 
Bank  v.  Boyce,  7S  Ky.  41,  55;  Western  Bank  V.  Marion  County  Distilling  Co.,  89  Ky. 
91 )  ;  State  v.  Loomis,  27  Minn.  521 ;  Trice  v.  Wisconsin  Ins.  Co.,  43  Wis.  267,  281. 


318  SHAW    V.    RAILROAD    CO.  [CHAP.  II. 

such  a  transfer  is  called  negotiation.  It  is  a  mercantile  business  trans- 
action, and  the  capability  of  being  thus  transferred,  so  as  to  give  to 
the  indorsee  a  right  to  sue  on  the  contract  in  his  own  name,  is  what 
constitutes  negotiability.  The  term  "negotiable"  expresses,  at  least 
primarily,  this  mode  and  effect  of  a  transfer. 

In  regard  to  bills  and  notes,  certain  other  consequences  generally, 
though  not  always,  follow.  Such  as  a  liability  of  the  indorser,  if  demand 
be  duly  made  of  the  acceptor  or  maker,  and  seasonal >le  notice  of  his 
default  be  given.  So  if  the  indorsement  be  made  for  value  to  a  bona 
fide  holder,  before  the  maturity  of  the  bill  or  note,  in  due  course  of 
business,  the  maker  or  acceptor  cannot  set  up  against  the  indorsee  any 
defence  which  might  have  been  set  up  against  the  payee,  had  the  bill  or 
note  remained  in  his  hands. 

So,  also,  if  a  note  or  bill  of  exchange  be  indorsed  in  blank,  if  payable 
to  order,  or  if  it  be  payable  to  bearer,  and  therefore  negotiable  by 
delivery  alone,  and  then  be  lost  or  stolen,  a  bona  fide  purchaser  for 
value  paid  acquires  title  to  it,  even  as  against  the  true  owner.  This  is 
an  exception  from  the  ordinary  rule  respecting  personal  property. 
But  none  of  these  consequences  are  necessary  attendants  or  constitu- 
ents of  negotiability  or  negotiation.  That  ma}-  exist  without  them.  A 
bill  or  note  past  due  is  negotiable,  if  it  be  payable  to  order,  or  bearer,  but 
its  indorsement  or  delivery  does  not  cut  off  the  defences  of  the  maker 
or  acceptor  against  it,  nor  create  such  a  contract  as  results  from  an 
indorsement  before  maturity,  and  it  does  not  give  to  the  purchaser  of  a 
lost  or  stolen  bill  the  rights  of  the  real  owner. 

It  does  not  necessarily  follow,  therefore,  that  because  a  statute  has 
made  bills  of  lading  negotiable  b}-  indorsement  and  delivery,  all  these 
consequences  of  an  indorsement  and  delivery  of  bills  and  notes  before 
maturity  ensue  or  are  intended  to  result  from  such  negotiation. 

Bills  of  exchange  and  promissory  notes  are  exceptional  in  their 
character.  They  are  representatives  of  money,  circulating  in  the  com- 
mercial world  as  evidence  of  money,  "of  which  any  person  in  lawful 
possession  may  avail  himself  to  pay  debts  or  make  purchases  or  make  re- 
mittances of  mone}-  from  one  country  to  another,  or  to  remote  places  in 
the  same  oountoy.  Hence,  as  said  by  Story,  J.,  it  has  become  a  general 
rule  of  the  commercial  world  to  hold  bills  of  exchange,  as  in  some  sort, 
sacred  instrument  in  favor  of  bona  fide  holders  for  a  valuable  consider- 
ation without  notice."  Without  such  a  holding  they  could  not  perform 
their  peculiar  functions.  It  is  for  this  reason  it  is  held  that  if  a  bill 
or  note,  indorsed  in  blank  or  payable  to  bearer,  be  lost  or  stolen, 
and  he  purchased  from  the  finder  or  thief,  without  any  knowledge  of 
want  of  ownership  in  the  vendor,  the  bona  fide  purchaser  may  hold  it 
againsl  the  true  owner.  lie  ma}'  hold  it  though  he  took  it  negligently, 
and  when  there  were  suspicious  circumstances  attending  the  trans- 
fer.  Nothing  short  of  actual  or  constructive  notice  that  the  instru- 
ment is  not  the  property  of  the  person  who  offers  to  sell  it,  —  that 
is,  nothing  short  of  mala  fides  will  defeat  his  right.     The  rule  is  the 


SECT.  VI.]  SHAW    V.    RAILROAD    CO.  310 

same  as  that  which  protects  the  bona  fide  indorser  of  a  bill  or  note  pur- 
chased for  value  from  the  true  owner.  The  purchaser  is  not  bound  to 
look  beyond  the  instrument.  Goodman  v.  Harvey,  4  Ad.  &  E.  870 ; 
Goodman  v.  Simonds,  20  How.  343;  Murray  v.  Lardner,  2  Wall.  110; 
Matthews  v.  1'oUhrcss,  4  (la.  287.  The  rule  was  first  applied  to  the 
ease  of  a  lost  bank-note  (Miller  v.  Race,  1  Burr.  452),  and  put  upon 
the  ground  that  the  interests  of  trade,  the  usual  course  of  business,  and 
the  fact  that  bank-notes  pass  from  hand  to  hand  as  coin,  require  it.  It 
was  subsequently  held  applicable  to  merchants'  drafts,  and  in  Peacock 
v.  Rhodes,  2  Doug.  633,  to  bills  and  notes,  as  coming  within  the  same 
reason. 

The  reason  can  have  no  application  to  the  case  of  a  lost  or  stolen  bill 
of  lading.  The  function  of  that  instrument  is  entirely  different  from 
that  of  a  bill  or  note.  It  is  not  a  representative  of  money,  used  for 
transmission  of  money,  or  for  the  payment  of  debts  or  for  purchases. 
It  does  not  pass  from  hand  to  hand  as  bank-notes  or  coin.  It  is  a  con- 
tract for  the  performance  of  a  certain  duty.  True,  it  is  a  symbol  of 
ownership  of  the  goods  covered  by  it,  —  a  representative  of  those 
goods.  But  if  the  goods  themselves  be  lost  or  stolen,  no  sale  of  them 
by  the  finder  or  thief,  though  to  a  bona  fide  purchaser  for  value,  will 
divest  the  ownership  of  the  person  who  lost  them,  or  from  whom  they 
were  stolen.  Why,  then,  should  the  sale  of  the  symbol  or  mere  repre- 
resentative  of  the  goods  have  such  an  effect?  It  may  be  that  the  true 
owner  by  his  negligence  or  carelessness  may  have  put  it  in  the  power 
of  a  finder  or  thief  to  occupy  ostensibly  the  position  of  a  true  owner, 
and  his  carelessness  may  estop  him  from  asserting  his  right  against  a 
purchaser  who  has  been  misled  to  his  hurt  by  that  carelessness.  But 
the  present  is  no  such  case.  It  is  established  by  the  verdict  of  the 
jury  that  the  bank  did  not  lose  its  possession  of  the  bill  of  lading 
negligently.     There  is  no  estoppel,  therefore,  against  the  bank's  right. 

Bills  of  lading  are  regarded  as  so  much  cotton,  grain,  iron,  or  other 
articles  of  merchandise.  The  merchandise  is  very  often  sold  or  pledged 
by  the  transfer  of  the  bills  which  cover  it.  They  are,  in  commerce,  a 
very  different  thing  from  bills  of  exchange  and  promissory  notes,  an- 
swering a  different  purpose  and  performing  different  functions.  It 
cannot  be,  therefore,  that  the  statute  which  made  them  negotiable  by 
indorsement  and  deliver}-,  or  negotiable  in  the  same  manner  as  bills  of 
exchange  and  promissory  notes  are  negotiable,  intended  to  change 
totally  their  character,  put  them  in  all  respects  on  the  footing  of  instru- 
ments which  are  the  representatives  of  money,  and  charge  the  negoti- 
ation of  them  with  all  the  consequences  which  usually  attend  or  follow 
the  negotiation  of  bills  and  notes.  Some  of  these  consequences  would  be 
very  strange,  if  not  impossible.  Such  as  the  liability  of  indorsers,  the 
duty  of  demand  ad  diem,  notice  of  non-delivery  by  the  carrier.  &c,  or 
the  loss  of  the  owner's  property  by  the  fraudulent  assignment  of  a  thief. 
If  these  were  intended,  surely  the  statute  would  have  said  something 
more  than  merely  make  them  negotiable  by  indorsement.     No  statute 


329  emery's  SONS  V.  IRVING  national  bank.        [chap.  II. 

is  to  be  construed  as  altering  the  common  law,  farther  than  its  words 
import.  It  is  not  to  be  construed  as  making  any  innovation  upon  the 
common  law  which  it  does  not  fairly  express.  Especially  is  so  great  an 
innovation  as  would  be  placing  bills  of  lading  on  the  same  footing  in 
all  respects  with  bills  of  exchange  not  to  be  inferred  from  words  that 
can  be  fully  satisfied  without  it.  The  law  has  most  carefully  protected 
the  ownership  of  personal  property,  other  than  money,  against  misap- 
propriation by  others  than  the  owner,  even  when  it  is  out  of  his 
possession.  This  protection  would  be  largely  withdrawn  if  the  misap- 
propriation of  its  symbol  or  representative  could  avail  to  defeat  the 
ownership,  even  when  the  person  who  claims  under  a  misappropriation 
had  reason  to  believe  that  the  person  from  whom  he  took  the  property 
had  no  right  to  it. 

We  think,  therefore,  that  the  rule  asserted  in  Goodman  v.  Harvey, 
Goodman  v.  Simonds,  Murray  v.  Lardner,  supra,  and  in  Phelan  v. 
Moss.  G7  Pa.  St.  59,  is  not  applicable  to  a  stolen  bill  of  lading.  At 
least  the  purchaser  of  such  a  bill,  with  reason  to  believe  that  his  vendor 
was  not  the  owner  of  the  bill,  or  that  it  was  held  to  secure  the  payment 
of  an  outstanding  draft,  is  not  a  bona  fide  purchaser,  and  lie  is  not 
entitled  to  hold  the  merchandise  covered  by  the  bill  against  its  true 
owner.  In  the  present  case  there  was  more  than  mere  negligence  on 
the  part  of  Miller  &  Brother,  more  than  mere  reason  for  suspicion. 
There  was  reason  to  believe  Kuhn  &  Brother  had  no  right  to  negoti- 
ate the  bill.  This  falls  very  little,  if  any,  short  of  knowledge.  It  may 
fairly  be  assumed  that  one  who  has  reason  to  believe  a  fact  exists, 
knows  it  exists.     Certainly,  if  he  be  a  reasonable  being. 

Judgment  affirmed} 


THOMAS  EMERY'S  SONS  v.  IRVING  NATIONAL  BANK. 

Supreme  Court  of  Ohio,  December  Term,  1874. 

[Reported  in  25  Ohio  Slate,  3G0.] 

Error  to  the  Superior  Court  of  Cincinnati. 

Thomas  Emery's  Sons,  plaintiffs  in  error,  a  firm  doing  business  in 
Cincinnati,  Ohio,  had,  before  the  dates  hereinafter  named,  transacted 
business  with  one  Mirrielees,  a  produce  broker  in  the  city  of  New 
York,  which  resulted  in  leaving  a  balance  due  from  Mirrielees  to  the 
plaintiffs  in  error.  This  was  the  nature  of  the  transaction:  Upon  the 
onlcr  of  Emery's  Sons,  Mirrielees  purchased  goods  in  New  York,  on 
his  own  account,  and  shipped  the  goods  to  them  at  Cincinnati,  by  a 
common  carrier,  with  which  Emery's  Sons  had  special  arrangements 
for  freight,  upon  an  agreement  that  Emery's  Sons  would  pay  him  the 
cost  of  the  goods  at  New  York  and  one  percent  commission  added. 
It  was  usual  for  Mirrielees,  upon  making  shipment  of  goods,  to  take 
from  the  carrier  a  bill  of  lading,  and  to  draw  upon  them  for  the  price  of 
1  A  portion  of  the  opinion  immaterial  to  the  principal  point  is  omitted. 


SECT.  VI.]  EMERY'S   SONS   V.    IRVING    NATIONAL   BANK. 


321 


the  goods  and  his  commission,  and  at  the  same  time  to  obtain  a  discount 
of  the  drafts,  with  hills  of  lading  attached,  from  the  Irving  National 
Bank,  at  New  York.  These  drafts  had  uniformly  been  honored  by  the 
drawees  upon  presentation  by  the  hank. 

On  the  24th  of  March,  1869,  Mi  melees  shipped  three  casks  of  stearine 
to  Emery's  Sons,  by  the  Atlantic  Time  Line,  and  took  from  the  carrier 
a  receipt  or  bill  of  lading,  the  material  part  of  which  reads  as  follows  : 
tk  New  York,  24th  March,  1369.  Received  from  G.  M.  Mirrielees  the 
following  packages  (contents  and  value  unknown),  in  apparent  good 
order,  and  marked  as  in  the  margin.  (3)  Three  casks  stearine. 
For  Thos.  Emery's  Sons."  In  the  margin  was  written  "  Cin.,  0." 
Thereupon,  Mirrielees  drew  his  bill  of  exchange  as  follows:  — 

S  2 9 9 ,-,,',,  ,  Nbw  Yobk,  March  24,  1869. 

On  demand,  pay  to  the  order  of  myself,  two  hundred  and  ninety- 
nine  ,V,7  dollars,  value  received,  and  charge  the  same  to  account  of 
3  casks  stearine. 

To  Messrs.  Thos.  Emery's  Sons,  Cincinnati. 

G.  M.  Mirrielees. 

And,  having  indorsed  the  same,  on  the  same  day.  delivered  it,  with 
the  bill  of  lading,  to  the  defendant  in  error,  who  paid  therefor  full 
value.  At  the  same  time  Mirrielees  sent  to  Emery's  Sons  a  letter,  as 
follows  :  — 

^tew  York,  March  24,  1869. 
Messrs.  Thomas  Emery's  Sons,  Cincinnati: 

Gentlemen,  —  Herewith  please  find  invoices  3  casks  of  stearine, 
amounting  to  $299.21,  for  which  I  have  valued  this  day. 

Yours  truly,  G.  M.  Mirrielees. 

On  the  26th  of  the  same  month  Mirrielees  shipped  as  per  the  follow- 
ing bill  of  lading: 

CSIr3  No  liability  assumed  for  mis- 
carriage or  wrong  delivery  of  goods 
that  are  marked  with  initials, 
numbers,  or  that  are  imperfectly 
marked. 


Weights 

and  Classifications  subject  to 

correction. 

\/p\/ 

wtncenna&'j 

0. 

^s/tej.       T&metu  j 

<C/C>/J  . 

'/    2  tit  ^atJ,    / 


Received  from  G.  M.  Mirrielees 

The  following  packages  (contents  and 
value  unknown),  in  apparent  good  order, 
and  marked  as  in  the  margin. 

(6)  Six  Ilhds.  Stearine. 
(4)  Four  Hhds.  Stearine. 
21 


322  emery's  sons  V.  IRVING  national  bank.         [chap.  II. 

On  account  of  which  he  drew  as  follows  :  — 

$1,098  141-,l  New  York,  March  2G,  1S69. 

On  demand,  pay  to  the  order  of  myself,  ten  hundred  and  ninety- 
eight  T402y  dollars,  value  received,  and  charge  the  same  to  account  of  10 
casks  stearine. 

To  Messrs.  Thos.  Emery's  Sons,  Cincinnati,  Ohio. 

G.  M.  Mirrielees. 

And  having  also  sold  and  delivered  this  draft,  with  bill  of  lading 
attached,  to  the  defendant  in  error,  he  wrote  to  Emery's  Sons  :  — 

New  York,  March  26,  1869 
Jlessrs.  Thomas  HJmery's  Sons,  Cincinnati  : 

Gentlemen, —  Herewith  please  find  invoice  of  10  hhds.  stearine, 
amounting  to  $1,098.42,  for  which  I  have  valued  on  you  to-day. 

Yours  truly, 

G.  M.  Miurieleks. 

Irving  National  Bank  forwarded  these  respective  drafts,  with  bills 
of  lading  attached,  for  collection,  on  the  26th  and  27th  of  same 
month  ;  but  upon  presentation  to  the  plaintiffs  in  error,  payment 
was  refused. 

After  these  bills  of  lading  had  been  thus  transferred  to  Irving 
National  Bank,  Emery's  Sons  received  and  sold  both  shipments  of 
stearine,  and  refused  to  account  to  the  bank  for  the  proceeds  or 
price. 

The  original  action  was  brought  in  the  Superior  Court  of  Cincin- 
nati, by  the  bank,  to  recover  the  amount  of  the  proceeds  of  sales. 
The  defendants,  by  way  of  defence,  insisted  that  they  might  right- 
fully retain  the  money,  and  apply  it  on  the  indebtedness  of  Mirrielees 
to  them. 

On  the  trial,  at  special  term,  the  court  rendered  judgment  in  favor  of 
the  defendants.  The  plaintiff  moved  for  a  new  trial,  which  motion  was 
overruled,  and  a  bill  of  exceptions,  embodying  all  the  testimony,  was 
taken.  On  error  the  court  at  general  term  reversed  the  judgment  ren- 
dered at  special  term,  and  remanded  the  case  to  special  term  with 
instructions  to  the  court  to  proceed  to  render  a  judgment  in  favor 
of  the  plaintiff.  Thereupon,  the  court  at  special  term,  without  grant- 
ing a  new  trial,  proceeded  to  render  judgment  in  favor  of  the 
plaintiff. 

This  proceeding  is  prosecuted  to  reverse  the  judgment  of  reversal 
rendered  by  the  court  at  general  term,  and  the  judgment  subsequently 
rendered  at  special  term,  in  favor  of  the  plaintiff  below. 

King,  Thompson,  &  Avery,  for  plaintiffs  in  error. 

Joshua  If.  Bates  and  Clement  /><ifes,  for  defendant  in  error. 

McIlvaine,  C.  J.  Where  goods  are  delivered  by  a  vendor  to  a 
common  carrier,  consigned  to  the  vendee,  the  question,  whether  the  title 
thereby  passes  from  the  vendor  to  the  vendee,  depends  upon  the  inten- 


;  :<  r.  vi. 


EMERY'S   SONS   V.    IRVING    NATIONAL    BANK.  323 


tion  of  the  vendor,  which  intention  is  to  be  gathered  from  all  the  cir- 
cumstances of  the  transaction. 

If  the  goods  be  shipped  in  pursuance  of  the  purchaser's  order  and  at 
his  risk,  or  if  it  otherwise  appear  to  be  the  intention  of  the  shipper 
to  part  with  the  title,  the  carrier  becomes  the  agent  of  the  consignee, 
and  the  delivery  to  him  is  equivalent  to  a  delivery  to  the  purchaser.  If 
the  vendor,  however,  in  making  the  consignment  and  delivering  the 
goods  to  the  carrier,  does  not  intend  to  part  with  his  title  to  and 
control  over  them,  the  carrier  must  be  regarded  as  the  agent  of  the 
consignor  and  not  of  the  consignee. 

In  all  such  transactions,  the  bill  of  lading  is  an  important  item  of 
proof  as  to  the  intention,  but  it  is  not  necessarily  conclusive  of 
the  question.  If  the  bill  of  lading  shows  that  the  consignment  was 
made  for  the  benefit  of  the  consignor  or  his  order,  it  is  very  strong 
proof  of  his  intention  to  reserve  the  jus  disponendi.  And  on  the  other 
hand,  if  the  bill  of  lading  shows  that  the  shipment  is  made  for  the  bene- 
fit of  the  consignee,  it  is  almost  decisive  of  the  consignor's  intention  to 
part  with  the  ownership  of  the  property.  If  the  bill  of  lading  does  not 
disclose  the  person  for  whose  benefit  the  consignment  is  made,  it  is  of 
less  weight  on  the  question  of  the  shippers  intention.  We  have  no 
doubt,  however,  that  if  the  bill  of  lading  shows  a  consignment  by  vendor 
to  vendee,  and  no  other  circumstance  appears  as  to  the  intention,  it 
will  be  taken  as  prima  facie  evidence  of  an  unconditional  delivery  to 
the  vendee. 

As  between  the  consignor  and  consignee,  the  bill  of  lading  cannot 
be  regarded  as  a  contract  in  writing,  but  merely  as  an  admission  or 
declaration  on  the  part  of  the  consignor  as  to  his  purpose,  at  the  time, 
in  making  the  shipment,  and  such  admission  is  subject  to  be  rebutted 
by  other  circumstances  connected  with  the  transaction. 

By  the  rules  of  commercial  law,  bills  of  lading  are  regarded  as  sym- 
bols of  the  property  therein  described,  and  the  delivery  of  such  bill  by 
one  having  an  interest  in  or  a  right  to  control  the  property,  is  equi- 
valent to  a  delivery  of  the  property  itself.  A  consignor  who  has  re- 
served the  jus  disponendi^  may  effectuate  a  sale  or  pledge  of  the 
property  consigned,  by  delivery  of  the  bill  of  sale  to  the  purchaser  or 
pledgee,  as  completely  as  if  the  property  were,  in  fact,  delivered.  If 
such  transfer  of  the  bill  of  lading  be  made  after  the  property  has 
passed  into  the  actual  possession  of  the  consignee,  the  transferee  of 
the  bill  takes  it  subject  to  any  right  or  lien  which  the  consignee  may 
have  acquired  by  reason  of  his  possession.  But  if  the  bill  of  lading 
be  transferred  by  way  of  sale  or  pledge  to  a  third  person,  before  the 
property  comes  into  the  possession  of  the  consignee,  the  consignee 
takes  the  property  subject  to  any  right  which  the  transferee  of  the 
bill  may  have  acquired  by  the  symbolic  delivery  of  the  property 
to  him. 

The  principle  on  which  the  title  to  goods  may  he  transferred  by  a 
transfer  of  the  bill  of  lading,  is  whollydistinet  from  that  on  which  the 


324  emery's  sons  v.  ikvixg  national  bank.        [chap.  II. 

right  of  stoppage  in  transitu  rests.  The  right  to  stop  goods  in  transit 
exists  only  where  the  vendor  has  consigned  them  to  the  buyer  under 
circumstances  which  vest  the  title  in  the  buyer.  The  transfer  of  goods 
by  delivering  the  bill  of  lading,  can  be  made  only  in  cases  where  the 
vendor  has  not  parted  with  the  title. 

In  the  case  before  us,  it  must  be  assumed  that  the  court  below,  at 
general  term,  found  from  the  evidence,  that  Mirrielees  did  not  intend, 
by  delivering  the  stearine  to  the  carrier,  to  vest  the  title  in  Emery's 
Sons  absolutely  as  purchasers,  but  only  on  condition  that  they  would 
accept  and  pay  the  bill  of  exchange  drawn  on  account  thereof.  It  is 
true  that  this  intention  was  not  expressed  on  the  face  of  the  bills  of 
lading,  but  it  fully  appears  from  other  facts  and  circumstances.  The 
letter  of  Mirrielees,  of  the  date  of  each  shipment,  containing  the  invoice 
of  the  goods,  and  informing  the  consignees  that  the  invoice  had  been 
valued  (drawn  against)  that  day  ;  the  drawing  of  the  bills  of  exchange 
on  account  of  the  invoices  and  for  their  full  value  ;  the  indorsement  of 
the  bills  of  exchange  with  bills  of  lading  attached,  and  their  delivery 
to  Irving  National  Bank  on  discount,  all  on  the  day  of  shipment,  clearly 
show  the  intention  of  Mirrielees  at  the  time  of  shipment,  to  reserve  the 
jus  disponendi.  And  this  conclusion  is  much  strengthened  by  the  fur- 
ther fact  that  previous  transactions  between  the  same  parties  had  been 
conducted  in  the  same  way,  without  objection. 

Upon  this  theory  of  the  case,  we  are  of  opinion  that  Irving  National 
Bank,  by  discounting  the  bills  of  exchange  with  the  bills  of  lading  at- 
tached, became  vested  of  the  property  consigned  to  Emery's  Sons,  as  a 
security  for  the  payment  of  the  drafts,  as  fully  and  completely  as  if  the 
stearine  itself  had  been  delivered  into  its  actual  possession,  and  was  en- 
titled to  demand  from  the  consignees  an  account  of  the  proceeds  of  sales 
or  the  price  of  the  goods. 

It  is  claimed,  however,  that  these  bills  of  lading  were  not  transfer- 
able by  delivery  merely,  for  the  reason  that  they  were  not  made  so 
negotiable  by  their  terms.  Bills  of  lading  are  not,  and  cannot  be  made, 
by  any  form  of  words,  negotiable  in  the  sense  that  commercial  paper 
payable  to  bearer,  or  order,  or  assigns  is  negotiable.  If  such  words  of 
negotiability  be  contained  in  them,  they  only  indicate  the  intention  of 
the  shipper  as  to  the  person  for  whose  use  the  consignment  is  made. 
If  the  goods  be  deliverable,  by  the  terms  of  the  bill,  to  the  consignee 
or  his  order,  there  can  be  no  doubt  that  the  person  to  whom  the  bill 
may  be  transferred  by  the  consignor  would  be  charged  with  notice  of 
the  lights  of  the  consignee,  and  on  the  other  hand,  if  the  bill  be  made 
to  the  use  of  the  consignor  or  his  order  or  his  assigns,  the  consignee 
would  be  charged  with  notice  of  the  rights  of  those  to  whom  the  bill 
may  have  been  transferred.  But  in  either -case,  the  question  is  open 
to  inquiry  as  to  what  such  rights  may  be,  and  can  be  determined 
only  by  inquiry  into  the  real  nature  and  character  of  the  transaction. 

A  bill  of  lading,  being  symbolical  of  the  property  described  in  it, 
like  the  property  it  represents,  may  be  transferred  by  delivery  merely, 


SECT.  VI.]  EMERY'S    SONS    V.    IRVING    NATIONAL    BANK.  325 

and  this  is  so  without  regard  to  the  presence  or  absence  of  words  of 
negotiability  on  its  face.  It  is  unlike  commercial  paper,  however, 
jn  this  —  the  assignee  cannot  acquire  a  better  title  to  the  property 
thus  symbolically  delivered,  than  his  assignor  had  at  the  time  of 
assignment. 

It  is  also  claimed  that  these  bills  of  lading  were  not  transferred  to 
the  bank  until  after  the  consignees  had  obtained  possession  of  the 
goods,  and  a  right  had  thereby  accrued  to  them  to  hold  the  goods,  or 
the  price  thereof,  for  the  satisfaction  of  the  claims  due  them  from  their 
consignor.  This  claim  is  based  on  the  theory  that  the  possession  of  the 
carrier  was  the  possession  of  the  consignees,  and  has  already  been  an- 
swered.  We  do  not  understand  it  to  be  claimed  that  the  goods  were, 
in  fact, delivered  to  the  consignees  by  the  carrier,  before  the  transfer  to 
the  bank  of  the  bills  of  lading.  But  if  it  were  so  claimed,  we  could  not 
disturb  the  finding  of  the  court  below  on  that  question.  From  the 
weight  of  the  testimony,  we  think  the  bills  of  lading  had  been  trans- 
ferred to  the  bank  before  the  goods  arrived  at  the  place  of  their 
destination. 

On  petition  in  error  by  the  plaintiff  below,  the  Superior  Court, 
sitting  in  general  term,  reversed  the  judgment  rendered  at  special  term 
in  favor  of  the  defendants,  and  remanded  the  cause  to  special  term  with 
instructions  to  the  judge  there  sitting  to  render  judgment  for  the  plain- 
tiff, which  was  done  accordingly.  In  this  we  think  there  was  error. 
The  only  question  before  the  general  term  was  as  to  the  alleged  error 
of  the  court  at  special  term  in  overruling  the  motion  of  the  plaintiff  for 
a  new  trial.  When  that  error  was  found  by  the  reviewing  court  the 
judgment  below  was  properly  reversed,  and  the  only  judgment  wdiich 
should  have  been  rendered  after  reversal,  was  to  grant  a  new  trial  as 
moved  for  at  special  term.  The  plaintiff  not  being  entitled  to  judg- 
ment on  the  pleading,  and  there  being  no  agreed  statement  of  facts,  or 
a  special  finding  of  facts  by  the  court  to  which  tfle  case  had  been 
submitted  on  the  evidence,  it  was  not  a  case  for  final  judgment.  The 
order  made  at  the  general  term,  that  the  judgment  be  rendered  at 
special  term,  will  therefore  be  reversed.  The  judgment  afterward  en- 
tered in  favor  of  the  plaintiff  is  also  reversed,  and  the  cause  remanded 
to  the  court  below  with  instructions  to  grant  the  plaintiff  below  his 
motion  for  a  new  trial,  and  that  it  proceed  to  final  judgment  in  the  cause 
according  to  law.  Judgment  reversed. 

Welch,  White,  Rex,  and  Gilmoue,  JJ.,  concurred. 


326  FORBES   V.   BOSTON   AND    LOWELL   RAILROAD.         [CHAP.  II. 


JOHN  M.  FORBES  v.  BOSTON  &  LOWELL  RAILROAD 
COMPANY. 

Supreme  Judicial  Court  of  Massachusetts,  March  15,  16  — 
June  29,  1882. 

[Reported  in  133  Massachusetts,  154.] 

Mortox,  C  J.  The  first  case  is  an  action  of  tort,  containing  a  count 
for  the  conversion  of  a  quantity  of  corn  and  a  count  for  the  conversion 
of  a  quantity  of  wheat.  As  different  considerations  apply  to  the  two 
counts,  they  must  be  treated  separately. 

On  or  about  October  20,  1879,  Gallup,  Clark,  and  Company,  grain- 
dealers  in  Chicago,  in  response  to  an  order  from  Foster  and  Company, 
forwarded  to  Boston  fifty  carloads  of  corn,  by  the  National  Despatch 
Fast  Freight  Line,  which  is  an  association  of  several  railroad  com- 
panies, whose  roads  make  a  continuous  line  from  Chicago  to  Boston, 
the  defendant's  road  being  a  part  of  the  line.  Upon  the  shipping  of 
the  corn,  an  inland  hill  of  lading  was  issued,  by  which  it  was  consigned 
to  the  order  of  Gallup,  Clark,  and  Company,  at  Boston.  Gallup,  Clark, 
and  Company  drew  a  draft  upon  Foster  and  Company  for  the  price  of 
the  corn,  attached  to  it  the  bill  of  lading,  and  forwarded  both  to  the 
Tremont  National  Bank  of  Boston.  On  Oct.  24,  1879,  Foster  and 
Company  paid  to  the  bank  the  amount  of  the  draft,  and  the  draft  and 
Lill  of  lading  were  delivered  to  them.  Immediately  upon  obtaining  the 
draft  and  bill  of  lading,  Foster  and  Company  indorsed  them  to  the 
plaintiffs,  as  securit}-  for  an  advance  then  made  by  the  plaintiffs  to 
the  full  amount  of  the  draft,  and  they  have  held  them  ever  since.  The 
corn  mentioned  in»the  bill  of  lading  was  received  and  transported  by 
the  defendant,  arriving  in  Boston  on  Oct.  30,  1879.  It  remained 
in  its  cars  until  Dec.  12,  1879,  when  by  the  orders  of  Foster  and 
Company  it  was  shipped  on  board  a  vessel  for  Cork,  and  exported  to 
Ireland.  Foster  and  Company  did  not  produce  and  present  to  the 
defendant  the  bill  of  lading,  but  represented  that  it  was  in  their 
possession. 

Upon  these  facts,  it  is  too  clear  to  admit  of  any  doubt,  that,  by  the 
transfer  of  the  draft  and  bill  of  lading  by  Foster  and  Company  to  the 
plaintiffs,  the  title  and  property  in  the  corn  passed  to  them.  The  bill 
of  lading,  though  not  strictly  a  negotiable  instrument  like  a  1  > i  1 1  of  ex- 
change,  was  the  representative  of  the  property  itself;  it  was  the  means 
by  which  the  property  was  put  under  the  power  and  control  of  the  plain- 
tiffs, ami  the  delivery  of  it  was  for  most  purposes  equivalent  to  an 
actual  delivery  of  the  property  itself. 

The  transaction  he)  ween  Foster  and  Company  and  the  plaintiffs  was 
not  in  form  or  in  effect  a  mortgage,  so  that,  as  contended  by  the  defend- 
ant, it  must  be  recorded  in  order  to  have  validity  ;  it  was  a  transfer 


r.   VI.]  FORBES   V.    BOSTON    AND    LOWELL   RAILROAD.  327 

and  delivery  ot'  the  property.  The  clear  intent  of  the  parties  was  that 
the  property  in  the  corn  should  pass  to  the  plaintiffs  as  security  for  the 
advance  made  by  them.  Whether  they  took  an  absolute  title  with  a 
liability  to  account  for  the  proceeds,  or  a  title  as  pledgees,  is  not  ma- 
terial, as  all  the  authorities  show  that  they  took  either  a  general  or  a 
special  property  in  the  corn,  which  entitles  them  to  recover  of  any  one 
who  wrongfully  converts  it.  De  Wolf  v.  Gardner,  12  Cush.  10  ;  Cairo 
National  Bank  v.  Crocker,  111  Mass.  163;  Green  Bay  National  Bank 
r.  Dearborn,  115  .Mass.  219;  Chicago  National  Bank  v.  Bayley,  Do 
Mass.  228;  Hathaway  v.  Ilavnes.  124  Mass.  311  ;  Gibson  v.  Stevens, 
8  How.  384;  Dowa  v.  National  Exchange  Bank,  91  U.  S.  618.  Nu- 
merous other  cases  might  be  cited.  The  delivery  of  the  bill  of  lading 
was  in  law  the  delivery  of  the  property  itself,  and  it  was  not  necessary 
that  the  plaintiffs  should  take  immediate  possession  of  it  upon  its 
arrival,  or  that  they  should  give  notice  to  the  carrier  or  warehouseman 
who  held  the  property.  Farmers  &  Mechanics'  National  Bank  v. 
Logan,  74  N.  Y.  508;' The  Thames,  14  Wall.  98;  Meyerstein  v.  Bar- 
ber. L.  R.  2  C.  P.  38,  661,  and  L.  R.  4  H.  L.  317.  It  is  true  that  the 
plaintiffs  might  by  their  subsequent  laches  defeat  their  right  to  assert 
their  title.  If  they  permitted  the  property  to  remain  under  the  control 
of  their  assignors,  and  held  them  out  to  the  world  as  having  the  right 
to  deal  with  the  property,  they  might  be  estopped  from  setting  up  their 
title.  But  the  authorities  are  decisive  to  the  point  that,  by  the  transfer 
from  Foster  and  Company,  they  took  a  title  as  purchasers  of  the  corn 
which  entitles  them  to  maintain  this  action,  unless  they  have  lost  the 
right  by  their  laches,  upon  proving  a  conversion  by  the  defendant. 

The  next  question  is  whether  there  was  a  conversion  by  the  defend- 
ant. It  is  settled  that  any  mis-delivery  of  property  by  a  carrier  or 
warehouseman  to  a  person  unauthorized  by  the  owner  or  person  to  whom 
the  carrier  or  warehouseman  is  bound  by  his  contract  to  deliver  it.  is  of 
itself  a  conversion,  which  renders  the  bailee  liable  in  an  action  of  tort  in 
the  nature  of  trover,  without  regard  to  the  question  of  his  due  care  or 
negligence.  Hall  v.  Boston  &  Worcester  Railroad,  14  Allen.  439.  By 
the  bill  of  lading,  and  by  the  way-bill  which  was  sent  to  the  defendant 
in  the  place  of  a  duplicate  bill  of  lading,  the  corn  was  to  be  delivered 
to  the  order  of  Gallup,  Clark,  and  Company.  The  defendant  contracted 
to  deliver  it  to  such  person  as  Gallup,  Clark,  and  Company  should  order, 
ami  could  not  without  violating  its  contract  deliver  it  to  any  other  per- 
son. By  delivering  it  to  Foster  and  Company,  therefore,  the  defend- 
ant became  liable  for  a  conversion,  unless  it  shows  some  valid  excuse. 
Newcomh  v.  Boston  &  Lowell  Railroad,  115  Mass.  230;  Alderman  v. 
Eastern  Railroad,  1 15  Mass.  233.  The  record  before  us  does  not  show 
any  laches  or  any  act  of  the  plaintiffs  which  can  excuse  or  justify  this 
mis-delivery.  They  did  not  hold  Foster  and  Company  out  to  the  world 
or  to  the  defendant  as  one  entitled  to  control  the  property.  Indeed,  it 
is  admitted  that  the  defendant  did  not  know,  until  long  after  the  deliv- 
ery, that  the  plaintiffs  had  an}*  connection  with  the  property,  or  with 


328  FOEBES    V.    BOSTON    AND    LOWELL    RAILROAD.  [CHAR  II. 

Foster  and  Company.  The  plaintiffs  did  nothing  to  mislead  the  defend- 
ant. They  had  the  right  to  rely  upon  the  facts  that  they  held  the  bill 
of  lading,  and  that,  according  to  the  ordinary  course  of  business,  the 
goods  could  not  be  obtained  except  upon  its  production.  The  defend- 
ant saw  fit  to  deliver  them  to  Foster  and  Company  without  requiring 
them  to  produce  the  bill  of  lading,  relying  upon  their  representation  that 
they  were  the  holders  of  it.  It  took  the  risk  of  their  truthfulness,  and 
cannot  now  shift  that  risk  upon  the  plaintiffs,  who  have  done  nothing 
to  mislead  or  deceive  the  defendant.  We  are,  for  these  reasons,  of 
opinion  that  the  defendant  is  liable  for  the  value  of  the  corn  described 
in  the  first  count  of  the  declaration. 

In  the  case  of  the  wheat,  there  are  some  facts  proved  at  the  trial 
which  lead  us  to  a  different  result.  By  the  bills  of  lading  and  the 
way-bills,  the  wheat  was  consigned  to  John  H.  Foster  and  Company  at 
Boston.  The  fact  that  they  did  not  contain  the  words  *'or  order,"  or 
other  equivalent  words,  so  as  to  make  them  upon  the  face  quasi  nego- 
tiable, is  not  important.  The  bill  of  lading  was  yet  the  representa- 
tive of  the  wheat,  and  its  transfer  and  delivery  to  the  plaintiffs  vested 
in  them  the  title  to  the  property,  as  against  the  consignees  and  their 
creditors.  But  the  presiding  justice  of  the  Superior  Court  who  heard 
the  case  has  found  as  a  fact,  "  that  it  was  the  custom  of  the  railroads 
terminating  in  Boston  to  deliver  to  the  consignee  goods  '  billed  straight ' 
as  it  is  termed,  that  is,  billed  to  a  particular  person,  not  to  order, 
when  they  were  satisfied  of  the  identity  of  the  consignee,  without  re- 
quiring the  production  of  the  bills  of  lading,  and  to  rely  upon  the  way- 
bills to  determine  the  consignee  and  the  form  of  the  consignment." 

Under  this  finding,  we  must  assume  that  the  custom  existed,  and 
that  the  plaintiffs  knew  or  ought  to  have  known  of  it.  It  materially  affects 
the  relations  and  rights  of  the  parties.  Although  it  does  not  affect  tbe 
question  of  the  title  of  the  plaintiffs  as  against  Foster  and  Company,  it 
qualifies  the  duties  of  the  defendant  as  to  the  delivery  of  the  wheat.  It 
justified  the  defendant  in  delivering  it  to  Foster  and  Company,  the  con- 
signees, at  least  at  any  time  before  notice  that  the  property  had  been 
transferred.  Under  it,  there  was  no  laches  in  not  calling  for  the  bill  of 
lading  ;  and,  in  thus  delivering,  there  was  no  violation  of  any  of  the 
terms  of  its  contract,  expre'ss  or  implied.  Such  delivery  therefore  was 
not  a  mis-delivery  which  would  amount  to  a  conversion  and  render  the 
defendant  liable  to  the  plaintiffs.  We  are  therefore  of  opinion  that  the 
defendant  is  not  liable  for  the  value  of  the  wheat  sued  lor. 

Judgments  accordingly? 

1  A  portion  of  the  opinion  is  omitted. 


SECT.  VI.]  MOORS   V.   WYMAN.  329 


JOSEPH  B.  MOORS   v.  FERDINAND  A.  WYMAN. 

Supreme  Judicial  Court  of  Massachusetts,  Novemeer  1G,  17, 
1887  —  January  9,  1888. 

[Reported  in  14G  Massachusetts,  CO.] 

Holmes,  J.  This  is  a  bill  in  equity  brought  by  a  creditor  of  the 
Boston  firm  of  F.  Shaw  &  Brothers,  consisting  of"  Fayette  Shaw  anil 
Brackley  Shaw,  against  that  firm  ;  against  another  firm  in  Vanceboro, 
Maine,  of  the  same  name,  consisting  of  the  above-named  Shaws  and 
Thaxter  Shaw;  and  against  Ferdinand  A.  Wyman,  to  whom  both  firms 
have  made  voluntary  assignments  for  the  benefit  of  creditors.  As  the 
objections  to  the  jurisdiction  are  now  waived,  and  as  the  assets  in  con- 
troversy have  been  converted  into  money,  and  a  large  part  of  the  plain- 
tiffs claim  has  been  paid  since  the  filing  of  the  bill,  leaving  only  certain 
items  of  the  account  in  dispute,  such  only  of  the  facts  need  be  stated 
as  are  necessary  in  order  to  settle  these  disputed  items. 

The  plaintiff,  Moors,  made  advances  to  the  Boston  firm  in  several 
ways.  1st.  Under  what  is  called  the  loan  account  agreement,  by 
indorsing  their  notes,  &c,  in  Boston,  taking  as  security  bills  of  par- 
cels of  specified  hides,  which  the  Vanceboro  firm  were  tanning  for 
the  Boston  firm,  and  which  were  delivered  by  the  Boston  firm  to  and 
held  by  Thaxter  Shaw  as  agent  for  the  plaintiff  with  the  consent  of 
the  Vanceboro  firm.  The  Vanceboro  firm  agreed  that  the  cost  to  Moors 
for  tanning  should  not  exceed  four  cents  per  pound,  and  in  fact  all 
charges  for  tanning  were  paid  bj-  the  Boston  firm  to  the  Vanceboro 
firm.  By  the  Boston  firm's  agreement,  Moors  had  power  in»case  of 
default,  or  if  in  his  opinion  the  collateral  did  not  afford  a  margin  of 
twemVy-five  per  cent  above  the  amount  unpaid,  to  sell  at  public  or 
private  sale  without  notice  ;  and  it  was  further  agreed  that  all  collateral 
security  held  by  Moors  for  the  Boston  firm's  account,  whether  under 
that  contract  or  otherwise,  might  be  taken  and  applied  as  general 
securit}-  for  all  existing  or  subsequent  indebtedness.  This  account 
has  been  paid  off  in  great  part,  since  the  filing  of  the  bill. 

2d.  The  plaintiff  issued  to  the  Boston  firm  letters  of  credit  on  Mor- 
ton, Rose,  &Co.,  of  London,  under  which  the  firm  bought  hides,  taking 
bills  of  lading  to  the  plaintiffs  order  by  agreement,  the  plaintiff  having 
a  lien  on  the  goods,  bills  of  lading,  and  policies  of  insurance,  with 
authority  to  take  possession  and  dispose  of  them  at  his  discretion  for 
his  security  or  reimbursement.  Before  the  defendant's  failure  the  prac- 
tice was  for  the  plaintiff  to  indorse  the  bill  of  lading  to  the  Boston 
firm,  they  signing  a  contract  by  which  they  received  the  hides  as  his 
agents,  and  agreed  as  such  agents  to  send  the  hides  to  specified  tan- 
neries of  theirs  in  Maine  or  New  York,  and  to  deliver  to  the  plaintiff 
upon  demand  the  identical  leather  into  which  the  hides  should  be  manu- 


330  MOORS   V.   WYMAN.  [CHAP.  II. 

factured,  the  plaintiff  not  to  be  chargeable  with  any  expense  thereon. 
The  intention  of  the  agreement  was  stated  to  be  to  protect  and  preserve 
unimpaired  the  plaintiffs  lien.  After  the  failure  the  plaintiff  took  pos- 
session of  the  hides  as  they  arrived,  and  sold  them  through  reputable 
brokers  for  fair  prices.  The  plaintiff  has  paid  Morton,  Rose,  &  Co.  the 
whole  amount  due  them. 

3d.  The  plaintiff  obtained  letters  of  credit  for  the  Boston  firm  drawn 
upon  the  Bank  of  Montreal  by  the  agents  of  the  bank,  the  Boston  firm 
giving  the  bank  an  agreement  similar  to  that  with  Moors,  last  men- 
tioned, with  authority  to  the  agents  to  take  possession  of  the  goods 
and  dispose  of  the  same  at  discretion,  and  to  charge  all  expenses,  in- 
cluding commissions,  for  sale  and  guaranty.  Upon  the  arrival  of  the 
hides  the  agents  of  the  bank  indorsed  the  bills  of  lading  to  Moors,  who 
before  the  failure  indorsed  them  to  the  Boston  firm  under  the  same  form 
of  agreement  as  stated  with  regard  to  bills  of  lading  under  the  Morton, 
Rose,  &  Co.  credit.  The  hides  arriving  after  the  failure  were  sold  by 
him  in  like  manner  as  before  stated.  The  plaintiff  has  paid  the  bank 
the  whole  amount  due  to  it. 

It  is  argued  for  the  Shaws  that  Moors  received  the  indorsed  bills  of 
lading  as  agent  of  the  Bank  of  Montreal,  and  that,  however  this  may 
be,  he  has  lost  his  rights  in  all  hides  received  by  him  under  any  bills  of 
lading  before  the  failure,  and  turned  over  to  the  Boston  firm  as  Moors's 
agents.  But  upon  the  record  before  us  we  must  take  it  that  Moors 
received  the  hides,  as  the  master's  report  implies  that  he  did,  on  his 
own  behfilf.  The  agents  of  the  bank  looked  to  him  for  pavynent, 
and  they  have  been  paid.  The  bank  had  a  title,  wheth'er  absolute  or 
qualified  does  not  matter.  See  De  Wolf  v.  Gardner,  12  Cush.  19  ; 
Forbes  v.  Boston  &  Lowell  Railroad,  133  Mass.  154,  156;  Moors  iu 
Kidder.  406  N.  Y.  32.  Moors  got  this  title  by  indorsement,  and  had 
a  similar  title  originally  under  the  Morton,  Rose,  &  Co.  bills  of*  lading. 
His  indorsements  of  the  bills  of  lading  to  the  Boston  firm  as  his  agents 
did  not  release  this  title.  It  was  not  a  conveyance  in  form,  and  being 
made  only  for  the  purpose  of  enabling  him  to  get  the  goods  from  the 
carriers,  it  was  not  a  conve}-ance  in  substance  or  effect.  See  Moors  v. 
Kidder,  supra;  Pratt  v.  Parkman,  24  Pick.  42,  47  ;  Low  v.  De  Wolf, 
8  Pick.  101.  107. 

Neither  did  Moors  lose  his  rights  by  giving  the  custody  of  the  hides 
to  the  Shaws.  They  expressly  agreed  to  hold  as  Moors's  agents,  and 
the  general  rule  is  perfectly  well  settled  that  the  custody  of  a  servant 
or  of  a  mere  agent  to  hold  is  the  possession  of  the  master  or  principal. 
Tlif  only  difficulties  that  have  arisen  have  been  due  to  the  failure  to 
distinguish  accurately  between  such  servants  or  agents  and  bailees  who 
hold  in  their  own  name;  Hallgarten  v.  Oldham,  135  Mass.  1,9;  or.  in 
the  c.ise  of  pledges,  between  :i  delivery  to  the  pledgor  for  his  own  pur- 
poses and  intrusting  him  with  the  custody  on  behalf  of  the  pledgee. 
Kellogg  v.  Tompson,  142  Mass.  76,  79.  It  might  be  argued  that 
policy  requires  an  exception  to  be  made  in  favor  of  a  bona  fide  pur- 


SECT.  VI. ]  FAEMEES',    ETC.    BANK    V.    LOGAN.  331 

chaser  for  value  from  the  general  owner  having  the  seeming  possession 
of  the  goods,  as  against  a  person  whose  security  depended  upon  pos- 
session, and  who  had  made  the  owner  his  custodian.  But  the  Mas- 
sachusetts cases  tend  to  show  that  there  is  no  such  exception  in  the 
absence  of  fraud.  Kellogg  v.  Tompson,  and  Moors  v.  Kidder,  snj,,;/  • 
Timelier  v.  Moors,  134  Mass.  156,  165.  At  all  events,  there  is  noth- 
ing in  this  case  to  warrant  our  making  one,  even  assuming  that  all 
parties  before  us  are  not  concluded  by  the  express  agreement  of  the 
Minus  that  the  plaintiff's  rights  should  remain.  There  is  nothing  in 
Wvinan'8  position,  as  to  proceeds  in  his  hands,  to  diminish  the  rights 
which  Moors  had  as  against  the  Miaws,  nor  do  his  counsel  argue  that 
there  is,  so  far  as  the  question  of  possession  is  concerned. 

Decree  accord lingly.* 


FARMERS',  etc.  BANK   v.  LOGAN. 
New  York  Court  of  Appeals,  May  Term,  1878. 

[Reported  in  74  New  York,  568.] 

Foeger.  J.  This  is  an  action  brought  by  the  plaintiff  to  recover  of 
the  defendants  the  value  of  a  canal-boat  load  of  wheat,  alleged  to  be  the 
property  of  the  plaintiff  and  to  have  been  taken  by  the  defendants  and 
converted  to  their  own  use. 

The  plaintiff  recovered  judgment  against  all  of  the  defendants.  The 
defendants,  Logan  and  Preston,  have  appealed,  and  they  contest  the 
recovery.  They  did,  in  fact,  take  the  wheat  and  ship  it  abroad  for 
their  own  purposes  and  benefit.  They  bought  it  from  the  defendant. 
Brown,  at  the  produce  exchange  in  New  York  City,  and  paid  for  it.  all 
in  the  usual  course  of  business  of  that  mart.  They  did  not  see,  nor 
seek  for,  any  evidence  of  the  title  of  Brown,  or  of  his  right  to  sell  ;  nor 
was  there  any,  save  that  the  wheat  was  in  his  actual  custody,  by  virtue 
of  a  special  deposit  of  it  with  him  in  trust,  and  that  he  had,  and  exhibited, 
samples  of  it  on  change: 

The  wheat  was  first  owned  by  one  Perot,  at  Buffalo,  N.  Y.  It  was  in 
an  elevator  there.  Sears  and  Daw  were  commission  merchants  at  that 
place.  They  acted,  in  the  purchase  of  wheat  for  him,  as  correspondents 
and  agents  there  of  the  defendant  Brown,  who  resided  and  did  business 
in  New  York  City.  At  this  time  they  had  an  order  from  him  to  buy 
two  boatdoads  of  wheat.  To  fill  that  order,  they  negotiated  with  Perot 
for  the  wheat  in  the  elevator,  and  bought  it  for  Brown.  But  they  bought 
of  Perot  on  their  own  credit,  and  they  paid  him  for  it  with  money 
obtained  by  them,  as  will  appear  further  on.  They  took  a  bill  of  sale 
from  Perot,  which  ran  in  their  own  name,  to  themselves.  Perot  knew 
not  Brown  in  the  transaction.     The  money,  with  which  the  wheat  was 

1  A  portion  of  the  opiuiou  is  omitted. 


332  farmers',  etc.  bank  v.   logan.      [chap.  n. 

paid  for  to  Perot,  was  got  by  them  in  this  way.  After  the  wheat  was 
spouted  from  the  elevator  into  a  canal-boat,  owned  and  navigated  by 
persons  not  connected  with  the  defendant  Brown,  the  master  of  it  made 
a  bill  of  lading,  stating  the  shipment  of  the  wheat  to  be  by  them,  as 
agents  and  forwarders,  to  New  York,  on  account  and  order  of  the  plain- 
tiff, with  a  direction  appended  to  notify  Brown  at  that  place.  They  then 
drew  their  own  draft  on  Brown,  to  the  official  order  of  the  plaintiff's 
cashier.  That  draft  and  the  bill  of  lading,  with  a  certificate  of  insurance 
of  the  wheat,  were  given  to  the  plaintiff,  which,  with  notice  of  all  the 
facts  at  that  time  existing,  on  the  strength  and  security  of  those  papers 
discounted  the  draft  for  Sears  &  Daw,  and  gave  the  avails  thereof  to 
them.  They  deposited  the  money  thus  obtained,  to  their  own  credit,  in 
The  White's  Bank,  and  paid  Perot  for  the  wheat  by  their  own  check  to 
him  thereon.  The  bill  of  lading  and  other  papers  were  retained  by  the 
plaintiff.  The  draft  was  indorsed  by  it  to  its  correspondent  bank  in 
New  York  City.  The  hill  of  lading  and  certificate  of  insurance  were 
pinned  to  the  draft.  There  was  stamped  upon  the  draft  a  direction  to 
the  correspondent  bank  to  deliver  the  bill  of  lading  and  certificate  to 
Brown,  on  his  acceptance  of  the  draft.  There  was  stamped  on  the  bill 
of  lading  a  statement  addressed  to  Brown,  in  purport  that  the  wheat 
and  the  insurance  of  it  were  pledged  to  the  plaintiff,  as  security  for  the 
payment  of  the  draft ;  and  that  the  wheat  was  put  into  his  custody,  in 
trust,  for  that  purpose,  not  to  be  diverted  to  any  other  use,  until  the 
draft  was  paid  ;  and  that  upon  his  accepting  and  paying  the  draft,  the 
claim  of  the  plaintiff  would  cease.  The  papers  were  sent  to  the  corre- 
spondent bank,  in  New  York  City,  with  instructions  in  conformity  with 
the  matter  stamped  upon  the  papers.  The  draft  was  presented  to  Brown, 
and  was  accepted  by  him.  The  bill  of  lading  was  delivered  to  and  kept 
by  him.  After  that,  the  wheat  reached  New  York  City  ;  but  before  the 
maturity  of  the  draft,  Brown  procured  samples  of  it,  made  the  sale  of 
it,  and  with  money  got  from  Logan  &  Preston  by  an  advance  on  the 
price,  paid  the  freight  and  other  charges  of  the  carrier.  Logan  & 
Preston  received  the  wheat  from  the  carrier,  and  sent  it  abroad. 

These  facts  are  sufficient  to  make  application  of  what  we  conceive  to 
be  the  law  controlling  the  case. 

There  lies  at  the  base  of  the  matter  an  elementary  principle  of  the 
common  law  well  known  and  often  stated,  but  which  may  be  profitably 
repeated  here,  from  a  high  source,  as  the  foundation  of  our  discussion. 
A  purchaser  of  chattels  takes  them,  as  a  general  rule,  subject  to  what- 
ever may  turn  out  to  be  infirmities  in  the  title.  A  purchaser  in  market 
overt  is  an  exception.  But  if  not  bought  there,  though  the  purchase 
be  bona  fide,  the  title  got  may  not  prevail  against  the  owner.  Again  : 
where  1  lie  owner  has  parted  with  the  chattel  to  another,  on  a  de  facto 
contract,  a  purchaser  from  that  other  bona  fide  will  obtain  an  indefea- 
sible title.  By  a  de  facto  contract  is  meant  one  which  has  purported  to 
pass  the  property  from  the  owner  to  another.  See  Cundy  v.  Lindsay, 
L.  K.  3  Appeal  Cases,  459. 


S;;CT.   VI.]  FARMERS',   ETC-    BANK   V.    LOGAN.  333 

In  the  case  in  band,  there  was  not  a  purchase  by  the  appellants  in 
market  overt,  for  such  place  and  effect  of  sale  is  not  recognized  in  this 
State.  Wheelwright  v.  Depeyster,  1  J.  R.  471-480;  Mowrey  v. Walsh, 
8  Cow.  238.  The  title  sot  up  by  the  appellants  cannot  prevail  then, 
unless  they  purchased  in  good  faith  from  the  real  owner,  or  from  one  to 
whom  the  real  owner  had  parted  with  the  goods  on  a  de  facto  contract. 
The  difference  between  the  parties  arises,  when  the  question  is  put,  to 
whom  did  Perot,  the  acknowledged  real  owner  at  first,  part  with  it 
thereby  — to  Brown,  or  to  Sears  &  Daw?  The  appellants  claim  that 
the  contract  of  sale  from  Perot  was  to  Brown  ;  that  he  became  the  owner, 
that  the  wheat  was  indeed  pledged  to  the  plaintiff,  but  that  Brown  was 
the  general  owner  and  the  pledgor;  that  when  the  plaintiff,  being  hut  a 
pledgee,  put  the  possession  of  it  in  Brown,  it  lost  its  lien,  as  against  a 
bona  fide  purchaser  from  him.  So  that  the  important  inquiry  is,  who 
did,  upon  all  the  facts  of  the  case,  become  the  owner  of  the  wheat,  by 
the  transaction  with  Perot?  It  is  conceded  to  be  the  vital  point  in  the 
case  of  the  appellants,  that  Brown,  from  whom  they  purchased,  had  a 
title  of  his  own  in  the  goods,  which,  subject  to  the  lien  of  the  plaintiff, 
he  could  transfer,"  and  that  the  voluntary  surrender  of  the  possession  to 
him  by  the  plaintiff  enabled  him  to  make  an  effectual  transfer  of  it,  free 
from  that  lien. 

It  will  not  have  escaped  an  observation  of  our  recital  of  facts,  that 
Brown  furnished  no  money  nor  any  credit  for  the  purchase  from  Perot. 
It  was  bought  by  Sears  &  Daw  of  him,  on  their  credit,  on  his  trust  in 
them  that  they  would  pay  for  it.  Nor  was  the  draft  discounted  by  the 
plaintiff  on  the  credit  of  Brown.  The  bill  of  lading  and  the  insurance 
upon  the  wheat  were  the  security  upon  which  the  plaintiff  rested.  Sears 
&  Daw  remained  liable  until  the  draft  was  paid  or  they  were  discharged 
by  some  act  of  the  plaintiff.  Nor  did  Brown,  when  he  ordered  the  pur- 
chase of  the  wheat,  expect  to  furnish  the  money  to  pay  the  seller  of  it. 
He  expected,  and  Sears  &  Daw  expected,  that  the  money  would  be  got 
in  the  way  in  which  it  was  got.  Nor  was  there  any  act  of  Perot,  or  of 
Sears  &  Daw,  in  dealing  with  the  wheat,  which,  of  itself,  passed  the 
title  to  it  to  Brown.  The  Mechanics'  and  Traders'  Bank  of  Buffalo  v. 
The  Farmers'  and  Mechanics'  National  Bank  of  Buffalo,  60  N.  Y.  40. 
The  bill  of  the  sale  from  Perot  was  to  Sears  &  Daw.  The  bill  of  lading 
from  the  carrier  was  not  to  Brown,  it  was  to  Sears  &  Daw,  to  the 
account  and  order  of  the  plaintiff.  The  shipment  is  stated,  indeed,  to 
be  by  them  as  agents  and  forwarders.  That  phrase  does  not,  of  itself, 
point  to  Brown  as  the  principal  or  consignee  ;  and  when  understood,  in 
knowledge  of  all  the  facts,  does  not  declare  or  suggest  his  ownership  of 
the  wheat.  In  sooth,  all  the  paper  evidence,  up  to  the  time  that  the 
lull  of  lading  went  into  the  keeping  of  the  plaintiff,  gives  no  sign  of 
ownership  in  Brown  ;  but,  on  the  contrary,  does  show  ownership  in 
Sears  &  Daw  transferred  to  no  one,  save  it  be  the  plaintiff.  And  the 
facts  given  by  the  oral  testimony  show  the  purpose  to  bar  Brown  from 
the  right  to  control  or  dispose  of  the  wheat,  until  he  paid  the  draft. 


334  FARMERS',  ETC.  BANK  V.    LOGAN.         [CHAP.  II. 

The  case  of  Turner  v.  The  Trustees  of  the  Liverpool  Docks,  6  Exch. 
[Welsby,  Hurl.  &  Gordon],  543,  is  pertinent.  Merchants  in  Liverpool 
sent  orders  to  merchants  in  Charleston,  to  ship  cotton  on  account  of  the 
former,  in  their  vessel,  for  her  voyage  to  Liverpool.  They  in  Charleston 
bought  cotton,  and  shipped  it  in  that  vessel.  They  took  a  bill  of  lading 
"  to  order  or  to  our  assigns,"  and  indorsed  it k"  deliver  the  within  to  The 
Bank  of  Liverpool  or  order."  They  drew  drafts  on  the  merchants  in 
Liverpool,  and  delivered  the  bill  of  lading  to  a  bank  in  Charleston,  and, 
on  security  of  it,  sold  the  drafts  to  the  bank,  and  used  the  avails  to  pay 
for  the  cotton,  or  to  reimburse  themselves  for  advances  therefor.  They 
in  Liverpool  did  not  pay  the  bills.  When  the  cotton  reached  that  port, 
the  question  arose,  to  whom  did  the  cotton  belong?  It  was  held  that 
the  property  in  it  did  not  vest  absolutely  in  them  in  Liverpool,  not- 
withstanding the  delivery  of  it  on  board  their  ship  to  their  servant,  the 
master;  but  that  they  in  Charleston,  by  the  terms  of  the  1  >  i  11  of  hiding, 
had  reserved  to  themselves  a.  jus  disponendi  of  the  cotton,  and  that  they 
had  not  divested  themselves  of  their  property  in  or  possession  of  the 
goods  ;  and  that  having  bought  the  cotton  with  their  own  funds  on  their 
own  credit,  they  retained  their  property  in  it  until  payment  was  made 
for  it  by  the  men  in  Liverpool.  See  in  ace.  The  Frances,  9  Crancli, 
183.  There  are  facts  in  the  case  cited  (6  P^xeh.  supra)  not  stated  by 
us  which  make  it  a  stronger  case  for  the  principals  in  Liverpool  than 
the  one  in  hand  is  for  Brown.  It  was  decided  in  the  Exchequer  Cham- 
ber, after  elaborate  argument  and  full  consideration.  It  has  been  since 
recognized  and  approved  as  sound  and  authoritative.  See  Mirabita  v. 
Imp"  Ottoman  Bank,  L.  R.  3  Exch.  Div.  164.  The  conclusion  reached 
in  it  satisfies  our  judgment ;  the  principle  declared  in  it  is  sound,  and 
applicable  to  and  decisive  of  the  point  we  are  now  considering. 

When  commercial  correspondents,  on  the  order  of  a  principal,  make 
a  purchase  of  property  ultimately  for  him,  but  on  their  own  credit,  or 
with  funds  furnished  or  raised  by  them,  and  such  course  is  contemplated 
when  the  order  is  given,  they  may  retain  the  title  in  themselves,  until 
they  are  reimbursed.  One  of  the  means  by  which  this  may  be  done,  is 
by  taking  the  bill  of  sale  in  their  own  names,  and  when  the  property  is 
shipped,  by  taking  from  the  carrier  a  bill  of  lading  in  such  terms  as  to 
show  that  they  retain  the  power  of  control  and  disposition  of  it.  This 
results  necessarily  from  the  nature  of  the  transaction.  It  is  not,  at  once, 
an  irrevocable  appropriation  of  the  property  to  the  principal.  It  rests, 
for  all  of  its  efficiency  and  prospect  of  performance,  upon  the  intention 
to  withhold  and  the  withholding  the  right  to  the  property,  so  that  that 
right  may  be  used  to  procure  the  money  with  which  to  pay.  It  contem- 
plates no  title  in  the  principal,  until  he  has  reimbursed  to  his  corre- 
ndents  the  price  paid  by  them,  or  to  the  person  with  whom  they  have 
dealt,  the  money  obtained  from  him,  with  which  to  pay  that  price. 
From  the  start,  the  idea  formed  and  nursed  is,  that  the  property  shall 
be  the  mi  ans  of  getting  the  money  with  which  to  pay  for  it,  and  that 
the  til!"  shall  not  pass  to  him  who  is  to  be  the  ultimate  owner,  until  he 
has  repaid  the  money  thus  got. 


SECT.  VI.]  FARMERS',    ETC.    BANK   V.    LOGAN.  3.';5 

Although  such  correspondents  act  as  agents,  and  are  set  in  motion  by 
the  principal  who  orders  the  purchase,  yet  their  rights  as  against  him, 
in  the  property,  are  more  like  those  of  a  vendor  against  a  vendee,  in  a 
sale  not  wholly  performed,  where  delivery  and  payment  have  not  been 
made;  and  where  delivery  is  dependent  upon  payment.  And  so  in  the 
case  cited  from  G  Exch.,  supra,  such  cases  of  vendor  and  vendee  are 
looked  to  as  authority,  and  e  conrerso,  that  case  is  relied  upon  in  Law 
Rep.  3  Ex.  D.,  supra,  which  was  such  a  case  of  vendor  and  vendee. 
The  rule  laid  down  is,  that  the  property  remains  in  the  shipper;  or  that 
he  has  i\jus  disponendi,  a  property  or  power  which  enables  him  to  con- 
fer a  title  on  a  pledgee  or  vendee,  though  in  breach  of  his  contract  with 
his  first  vendee  ;  and  that,  whichever  it  is,  the  result  must  be  the  same. 
Id.  If  the  vendor,  when  shipping  the  articles  which  he  intends  to 
deliver  under  the.  contract,  takes  the  bill  of  lading  to  his  own  order,  and 
does  so  not  as  agent  or  on  behalf  of  the  purchaser,  but  on  his  own 
behalf,  he  thereby  reserves  to  himself  a  power  of  disposing  of  the  prop- 
erty, and  consequently  there  is  no  final  appropriation,  and  the  property- 
does  not,  on  shipment,  pass  to  the  purchaser.  Id.  So,  if  the  vendor 
deals  with  or  claims  to  retain  the  bill  of  lading  in  order  to  secure  the 
contract  price,  as  when  he  sends  it  forward  with  a  draft  attached,  and 
with  directions  that  it  is  not  to  be  delivered  to  the  purchaser  until  pay- 
ment of  the  draft,  the  appropriation  is  not  absolute,  and  until  payment 
or  tender  of  the  price,  is  conditional  only,  and  until  then  the  property 
of  the  goods  does  not  pass  to  the  purchaser,  Id. ;  and  to  this  Turner 
v.  Trustees,  supra,  is  cited.  We  see  no  principle  which  distinguishes 
the  case  of  a  vendor  and  vendee,  in  this  respect,  from  that  of  a  corre- 
spondent or  agent,  buying  for  another,  yet  paying  the  price  from  his 
own  means,  or  from  moneys  by  agreement  raised  upon  the  property,  or 
upon  his  own  credit,  and  holding  the  property  as  security,  until  the 
principal  has  made  reimbursement.  Such  is  the  purpose  of  the  parties. 
There  is  no  intent  that  the  property  shall  be  appropriated  until  payment 
is  made.  And  unless  third  parties  are  unavoidably  misled  to  their 
harm,  they  have  no  cause  to  complain  of  a  purpose  so  reasonable  and 
productive  of  so  good  results. 

We  think  that  the  adjudications,  on  this  side  of  the  water,  are  to 
the  same  end.  There  have  been  repeated  adjudications  in  this  court, 
whereby  the  legal  effect  of  a  bill  of  lading  has  been  determined,  when  it 
contained  some  special  clause  or  notation,  or  had  upon  it  an  indorsement 
which  pointed  out  a  particular  person,  as  the  one  on  whose  account  the 
property  named  in  it  was  to  be  carried  and  delivered.  Bank  of  Roches- 
ter v.  Jones,  4  N.  Y.  497;  Dows  v.  Perrin,  16  id.  325  :  Mechanics'  and 
Traders'  Bank  v.  Farmers'  and  Mechanics'  Bank,  60  id.  40;  First 
National  Bank  of  Toledo  v.  Shaw,  HI  id.  283  ;  s.  c.  on  second  appeal, 
60  id.  624;  Marine  Bank  of  Buffalo  v.  Fiske,  71  id.  353;  Bank  of 
Commerce  v.  Bissell,  72  id.  61").  The  bill  of  lading  of  goods,  thus 
affected,  prim  a  facie  confers  upon  the  person  in  whose  favor  it  is  issued. 
or  to  whom  it  is  transferred,  the  legal  title  to  them.     4   X.  Y..  sup 


336  farmers',  etc.  bank  v.   LOGAN.       [chap.  it. 

That  result  is,  though  the  transaction  is  not  intended  to  give  the  per- 
manent ownership,  but  to  furnish  a  security  for  advances  of  money  or 
discount  of  commercial  paper,  made  upon  the  faith  of  it.  Third  persons, 
dealing  with  property  thus  shipped,  though  acting  in  good  faith,  in  the 
regular  course  of  business,  and  paying  value,  are  affected  by  the.  terms 
of  the  bill  of  lading,  are  bound  to  look  into  it,  and  are  chargeable  with 
a  constructive  notice  of  the  contents  of  it.  In  the  case  in  hand,  had 
the  appellants  asked  for  the  bill  of  lading,  and  looked  into  it,  they  would 
have  seen  that  the  property  described  in  it  was  in  the  possession  of 
Brown,  with  a  special  and  restricted  right  over  it,  and  that  they  could 
not  deal  with  it  safely,  until  there  had  been  a  compliance  with  the  con- 
dition attached  to  that  possession.  City  Bank  v.  R.  W.  and  O.  11.  R. 
Co.,  44  N.  Y.  136.  And  as  the}'  were  chargeable  with  a  constructive 
notice  of  the  contents  of  it,  there  is  the  same  legal  result  as  if  they  had 
looked  into  it.     Id. 

AVe  do  not  understand  that  the  learned  counsel  for  the  appellants 
takes  a  position  which  he  will  admit  is  hostile  to  these  adjudications. 
He  seeks  to  distinguish  the  case  at  bar  from  those  cited.  He  admits, 
as  we  understand  him,  that  had  this  case  stood  alone  upon  the  bill  of 
lading,  the  defendants  would  have  been  properly  cast  in  judgment.  But 
he  insists  that  Brown  was  the  general  owner  of  the  wheat;  that  the 
plaintiff  voluntarily  put  it  into  his  possession  ;  that  being  in  his  posses- 
sion with  its  consent,  he  being  general  owner  of  it,  the  appellants  were 
no  longer  bound  to  look  into  the  bill  of  lading,  and  had  not  constructive 
notice  of  its  contents.  There  is  a  subsidiary  position,  that  the  plaintiff, 
having  only  a  special  property  in  the  wheat,  as  a  pledgee,  could  not 
commit  it  to  the  possession  of  Brown,  as  he  was  the  general  owner  and 
pledgor  of  it,  without  losing  that  special  property  to  a  bona  fide  purchaser 
from  him. 

It  is  seen,  at  once,  that  the  important  thing,  in  this  contention,  is  that 
Brown  was  the  genei'al  owner  of  the  wheat ;  for  on  the  existence  of  that 
depend  both  the  propositions  put  forth.  We  think  that  we  have  shown 
that  the  idea  of  a  general  ownership  in  him  is  not  consistent  with  the 
facts  of  this  case,  nor  with  the  rules  of  law  declared  in  like  or  analogous 
cases.  To  be  sure,  by  his  order  to  Sears  &  Daw  to  purchase  the  wheat 
for  him,  he  set  on  foot  a  course  of  action,  which,  if  carried  out  to  the 
end,  in  the  manner  proposed  and  intended  by  all  the  parties  to  it,  would 
have  vested  in  him  the  general  and  unqualified  ownership.  But  lie  never 
had  the  power  over  the  wheat  of  a  general  owner.  There  was  never  a 
time  that  he  had  such  dominion  of  it,  as  that  he  had  the  right  to  enjoy  or 
do  with  it  as  he  pleased,  even  to  spoiling  or  destroying  it ;  or  that  he  had 
that  right  in  it,  by  which  it  belonged  to  him  in  particular,  to  the  exclu- 
sion of  all  others.  To  constitute  ownership,  in  the  sense  of  that  phrase 
as  here  used,  there  must  be,  at  some  time,  a  right  as  ample  and  unre- 
stricted as  that.  AVhen  that  right  once  exists,  he  who  has  it  is  a  general 
owner.  He  may  then  burthen  or  limit  that  right,  or  subject  it  to  rights 
created  by  him  in  others,  and  cease  not  to  be  the  general  owner.     But 


SECT.  VI.]  FARMERS',    ETC.    BANK   V.    LOGAN.  337 

he  has  not  become  the  general  owner,  though  he  may  have  an  interest 
in  the  properly,  until  he  has  a  right  as  great  as  that  stated  above. 

We  arc  asked,  would  not  the  profit  have  been  Brown's,  had  the  wheat 
advanced  in  value,  and  the  loss  his,  had  it  declined,  or  if  it  had  been 
destroyed  by  lire?  To  which  the  ready  answer  is,  whatever  had  chanced 
to  it,  it  would  not  have  been  his,  as  between  him  and  Sears  &  Daw  and 
the  plaint  iff,  until  he  complied  with  the  conditions  on  which  it  was 
bought  for  him,  that  is  to  say,  had  accepted  and  paid  the  draft.  As 
soon  as  he  paid  the  draft,  it  would  have  been  his,  with  whatever  enhance- 
ment of  value.  Had  it  lessened  in  value,  or  been  burned  up,  he  would 
still  have  been  liable  to  Sears  &  Daw,  for  the  price  of  their  services  and 
for  their  expenses,  and  to  the  plaintiff,  first,  on  his  promise  to  accept 
the  draft,  and  after  acceptance,  on  that  obligation  to  pay  it.  This  posi- 
tion is  noticed  in  Mirabita  v.  Imp.  Ottoman  Bank,  supra;  and  while 
holding  that  the  shipper  may  retain  a  power  over  the  goods,  it  is  declared 
that  the  vendee  has  an  interest  in  them,  that  they  are  at  his  risk,  and 
that  the  loss  or  benefit  to  them  is  his.  This  particular  matter  is  treat*  d 
of  in  Ilaille  v.  Smith,  1  Bos.  &  Puller,  563.  There,  property  was 
shipped  by  the  owners  of  it,  and  the  bill  of  lading  indorsed  in  blank, 
and  the  invoice  were  sent  to  a  mercantile  house,  under  a  previous  agree- 
ment that  it  should  receive  and  hold  and  sell  the  property,  and  apply 
the  avails  for  the  benefit  of  a  banking-house,  to  which  the  owners  and 
consignors  of  the  property  were  or  were  likely  to  be  indebted.  The 
point  was  there  made  that  the  risk  was  upon  the  consignors,  up  to  the 
time  of  a  sale,  and  that  they  had  an  insurable  interest,  and  that  they 
had  a  right  to  detain.  The  court  held,  that  the  bill  of  lading  operated 
as  a  change  of  the  property  :  that  by  reason  of  the  agreement,  from  the 
moment  that  the  goods  were  set  apart  for  the  particular  purpose  of 
securing  the  banking-house,  there  was  a  change  of  property:  but  as  it, 
was  a  change  of  property  for  the  purpose  only  of  applying  the  proceeds 
by  way  of  indemnity,  the  circumstances  of  the  risk,  and  of  the  profit 
and  loss,  referred  to  the  trust  with  which  the  property  was  charged, 
and  were  accounted  for  thereby  ;  and  that  that  trust  being  that  the  pro- 
ceeds should  be  applicable  to  the  debt  of  the  banking-house,  the  risk 
must  remain  with  the  consignors,  notwithstanding  the  change  of  property, 
and  the  consignors  must  suffer  or  be  benefited  by  the  loss  or  profit  upon 
the  sale.  It  would  seem  that  the  principle  thus  announced  is  equally 
applicable  to  the  facts  in  the  case  in  hand,  though  they  differ  in  some 
particulars.  Here,  the  wheat  is  bought  by  Sears  ifc  Daw  for  Brown, 
but,  on  the  instant,  the  property  in  it  is,  by  the  bill  of  lading,  vested  in 
the  plaintiff,  but  as  an  indemnity,  and  charged  with  a  trust  that  it  be 
sold,  if  not  paid  for  by  Brown,  and  the  avails  applied  to  repay  the 
advance  made  upon  it.  In  analogy  with  the  decision  in  the  case  cited, 
why  is  not  the  risk  upon  Brown,  and  the  profit  or  the  loss  his.  though  he 
have  not  the  property  in  the  wheat  ?  It  cannot  be  successfully  contended 
that,  until  Brown  paid  the  draft,  he  could  have  maintained  an  action 
for  the  delivery  of  the  wheat,  had  the  plaintiff  retained  it.     He  could 

22 


338  FAEMERS',    ETC.    BANK   V.    LOGAN.  [CHAP.  II. 

not  have  shown  that  he  ever  had  right  to  possession,  or  right  to  the 
dominion  over  it,  to  the  exclusion  of  all  others.  "  So  long  as  the 
advances  were  not  paid,  there  was  no  theory  whereby"  Brown  "could 
claim  title.  It  had  never  been  in"  him.  "At  the  moment  his  interest, 
whatever  it  was,  accrued,  it  came  burdened  with  the  formal  ownership 
of  the  plaintiff."  Bank  of  Toledo  v.  Shaw,  61  N.  Y.,  supra.  Had 
Sears  &  Daw  advanced  the  money  as  factors,  in  compliance  with  the 
order  of  their  principal  and  giving  him  credit,  the  purchase  would  have 
been  for  him  at  once,  and  he  would,  at  the  instant,  have  become  the 
owner  of  the  thing  bought.  But  the  facts  are  far  otherwise,  and  must 
not  be  lost  sight  of.  At  the  outset,  as  one  of  the  first  steps  in  the 
process,  the  legal  title  was  lodged  in  the  plaintiff,  not  to  leave  it  until 
the  payment  by  Brown  of  the  draft. 

Thus  the  case  is  kept  out  of  the  law  governing  the  relations  of  pledgor 
and  pledgee.  The  plaintiff  was  not  a  pledgee  of  the  property  of  Brown. 
It  had  a  right  to  it,  not  the  qualified  and  special  property  of  one  holding, 
as  a  security,  a  chattel  belonging  to  another.  It  had  the  legal  title, 
under  an  agreement  to  transfer  it  on  payment  being  made;  it  "held 
the  title  in  trust  for"  Brown,  "  after  its  own  claim  was  satisfied,"  61 
N.  Y.,  supra.  Nor  does  this  conflict  with  Williams  v.  Littlefield,  12 
Wend.  362.  There  the  factor  or  agent  bought  on  terms  more  favor- 
able than  he  exacted  of  the  principals  ;  the  variation  he  made  was  a 
departure  from  instructions  and  from  the  course  of  former  dealing. 
Here,  all  that  was  done  was  in  accord  with  previous  understanding. 

Such,  it  seems  to  us,  is  the  result  of  the  adjudications  in  this  country. 
The  basis  of  the  opinion  in  61  N.  Y.,  supra,  is  that  the  legal  title  to  the 
property  was  in  the  bank,  as  assignee  of  the  bill  of  lading.  It  is  well 
to  notice  here  a  distinction,  that  is  attempted  to  be  made,  between  the 
case  just  cited  and  the  one  in  hand.  It  is  said  that  there,  there  was  an 
express  agreement  that  the  purchasing  agent,  or  the  discounting  bank, 
should  hold  the  property  until  the  draft  was  paid.  Such  agreement  was 
but  putting  into  terms  the  legal  effect  of  the  transaction  in  the  case 
before  us.  For  we  have  shown,  by  authority,  that  the  taking  of  the  bill 
of  lading  in  the  name  of  the  plaintiff,  for  its  account,  and  the  discount 
of  the  draft  by  it  on  the  strength  thereof,  did  transfer  to  it  the  title  to 
the  wheat.  And  in  61  N.  Y.,  supra,  the  agreement  between  the  agents 
and  the  bunk  was  like  that  here,  that  the  draft  should  be  drawn  on  the 
principal,  and  that  the  bill  of  lading  be  taken  in  the  name  of  the  bank 
as  security  for  the  payment.  Dows  v.  National  Exchange  Bank,  91 
l'.  S.  Rep.  [1  Otto],  618,  stands  upon  the  same  footing.  The  outset 
of  the  opinion,  in  that  case,  states  the  only  question  to  be,  whether  the 
ownership  of  the  property  had  been  divested  before  the  conversion; 
and  that  the  court  lias  only  to  inquire  to  whom  the  wheat  belonged 
when  it  came  to  the  hands  of  Dows  &  Co.  The  opinion  declares  that 
the  agents  at  Milwaukee,  having  purchased  and  paid  for  it  with  their 
own  money,  became  the  owners  of  it.  This  is  placed  upon  the  fact, 
that  not  being   furnished  with  funds  by  their  principals,  they  raised 


SECT.  VI.]  FARMERS',    ETC.    HANK   V.    LOGAN.  339 

them  in  the  way  used  by  Scars  &  Daw.  It  is  said,  in  argument  before 
us,  that  the  position  just  stated  was  conceded  by  the  counsel  in  that 
case,  and  the  inference  is  then  made  here,  thai  it  was  assumed  by  that 
court  as  the  law  of  that  case,  without  consideration  or  deliberate  judg- 
ment, or  as  necessarily  applicable  to  every  case  of  like  facts.  We  think 
that  the  position  is  stated  by  the  court  as  the  law  of  that  case  and  of 
every  case  showing  the  same  facts,  in  that  respect;  though,  as  the 
proposition  was  not  controverted  by  counsel,  a  bare  statement  was 
thought  to  be  enough  without  discussion  or  elaboration.  Nor  is  there 
meant  by  the  term  "ownership"  only  a  special  property,  like  that  of  a 
lienor  or  pledgee  ;  it  is  put  as  ktthe  absolute  ownership,"  "the  complete 
power  of  disposition."  In  this  view,  those  cases  are  not  applicable  here 
which  hold  that  a  delivery  to  a  vendee,  even  upon  condition  expressed 
at  the  time,  will  maintain  a  right  in  abonajide  purchaser  from  the  ven- 
dee. Smith  v.  Lynes,  5  N.  Y.  41,  is  an  example  of  such  cases. 
Ballard  v.  Burgett,  40  id.  314,  and  Austin  v.  Dye,  46  id.  500,  show 
the  distinction  which  exists ;  and  the  same  appears  in  considering 
Rawls  v.  Deshler,  3  Ke3-es,  572  ;  and  M.  and  Traders'  Bank  v.  P.  and 
Mechanics'  Bank,  60  N.  Y.  40. 

Hence  there  was  no  relation  between  the  plaintiff  and  Brown  of  pledgee 
and  pledgor  ;  and  hence  no  giving  up  by  it,  as  pledgee,  of  the  possession 
of  property,  held  by  it  in  pledge,  to  him  while  the  general  owner  of  it. 
It  is  not,  therefore,  needed  that  we  consider  whether,  if  such  were  the 
case,  the  special  property  or  lien  in  it  of  the  plaintiff  was  lost  thereb}'. 

Much  stress  is  put  upon  the  assumed  fact  that  the  right  of  the  plain- 
tiff in  the  wheat  was  a  secret  lien,  and  no  more.  Whether  a  lien  merely, 
or  an  ownership,  the  declaration  of  the  bill  of  lading,  even  with  the 
modification  thereof,  made  by  the  matter  stamped  upon  it  b}*  the  plain- 
tiff, evinced  to  any  one  looking  at  it,  that  Brown  had  no  right  or 
authority  to  dispose  of  the  wheat,  until  he  had  paid  the  draft.  As  it  is 
conceded  that  possession  merely,  without  title,  in  one  assuming  to  sell, 
does  not  give  title  to  his  vendee,  what  is  required  of  the  vendee  in  such 
case,  if  it  be  not  to  examine  the  bill  of  lading  or  other  evidence  of  title? 
And  here  an  examination  would  have  shown  that  Brown  could  not  give 
good  title.  It  is  said  that,  as  the  carrier  could  properly  make  delivery 
to  Brown,  the  entire  functions  of  the  bill  of  lading  were  exhausted  when 
the  wheat  was  transferred  from  out  the  canal  boat  into  the  sea-going 
steamer.  But  that  is  not  so,  for  by  that  transfer  there  was  but  a  change 
of  possession,  and  if  possession  merely  did  not  give  title,  there  was  still 
something  further  to  be  looked  for  and  required,  and  the  terms  of  the 
bill  of  lading,  even  as  modified,  still  stood  in  the  way  of  a  transfer  of 
the  absolute  ownership  of  the  wheat  by  Brown. 

And  we  now  come  back  to  the  elementary  rule  with  which  we  started. 
It  appears  that  there  were  infirmities  in  the  title  which  the  appellants 
got  from  Brown,  or  rather  they  got  no  title  from  him  ;  for  there  had 
never  been  a  contract  </.  facto  which  purported  to  pass  the  property 
from  the  owner  to  him.     All  that  the  appellants  had,  upon  which  the' 


340  MOORS   V.    KIDDER    ET   AL.  [CHAP.  II. 

had  a  right  to  rely,  was  the  fact  of  possession  of  the  wheat  by  Brown, 
and  the  purchase  of  it  by  them,  in  accordance  with  the  usual  course  of 
business  on  the  produce  exchange.  We  doubt  not  that  the  latter  makes 
very  easy  and  rapid  the  transaction  of  an  immense  trade  in  the  agricul- 
tural products  of  the  country  ;  and  that  it  would  tend  much  to  the 
security  and  confidence  with  which  it  could  be  done,  if  the  law  of  market 
overt  could  be  applied  to  it.  But  such  is  not  the  rule  of  this  State,  in  the 
sale  of  chattel  property,  and  we  may  not  declare  it  so  to  be.  The  pur- 
chaser buys  at  his  risk  of  the  title,  and  if  he  would  be  safe,  must  make 
inquiry.  He  may  not,  with  certainty,  stop  at  the  fact  of  possession, 
but  must  learn  how  the  possession  has  been  acquired.  In  eveiy  such 
case  as  this,  the  muniments  of  a  real  title  are  easy  to  be  produced. 
When  the  property  is,  in  fact,  in  the  earner's  hands,  the  bill  of  lading 
will  show  to  whom  alone  he  has  the  right  to  deliver  it.  And  if  the 
directions  of  that  document  are  relied  upon,  there  cannot  be  much  risk. 
A  reliance  upon  it,  and  a  prior  inspection  of  it,  may  delay  transactions, 
but  they  will  protect  all  innocent  and  well-meaning  parties,  and  thwart 
seriously  only  those  who  mean  to  do  wrong  or  are  too  reckless  to  try  to 
do  right.  The  appellants  were  not  protected  by  the  fact  of  possession 
in  Brown,  because  possession  alone  does  not  give  the  power  to  pass  a 
valid  title.  Hence,  when  they  bought  of  him  they  got  no  greater  right 
than  he  had  in  the  wheat.  This  need  not  be  amplified  or  enforced,  for 
the  appellants  concede  that  possession  alone  is  not  such  evidence  of 
ownership,  or  authority  to  sell,  as  that  third  persons  have  a  right,  as 
against  the  true  owner,  to  rely  thereon. 

The  appellants  offered  to  prove,  on  the  trial,  an  established  course  of 
business  in  the  trade  between  Buffalo  and  New  York,  in  respect  to 
transactions  of  the  kind  involved  in  this  action.  The  court  excluded 
the  evidence,  and  the  appellants  excepted.  We  think  that  there  was  no 
error  in  that.  The  manner  in  which  this  transaction  was  to  be  carried 
out  was  determined  by  the  papers  which  were  made  between  the  parties 
to  it.  If  that  manner  differed  from  the  established  course  of  business, 
then  that  course  was  overridden  by  them.  If  it  agreed  with  them,  then 
evidence  of  it  would  neither  make  nor  mar. 

The  judgment  appealed  from  should  be  affirmed. 

All  concur,  except  Kapallo,  J.,  not  voting.  Judgment  affirmed. 


JOSEPH   B.   MOORS   v.   HENRY   P.    KIDDER  et  al. 

New  York  Court  ok  Appeals,  March  25 — June  7,  1887. 

[Reported  m  106  New  York,  82.] 

Appeal*  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  first  judicial  department,  entered  upon  an  order  made  dan. 
28,  1885,  which   affirmed  a  judgment  in  favor  of  defendants  entered 


DEK,  PEABODY,  &  Co.,  ^ 
40  State  Street,  V 
3ton,  August  3,  1881.    ) 


SECT.  VI.]  MOORS   V.    KIDDER    ET    AL.  341 

upon  an  order  dismissing  the  complaint  on  trial,  and  affirming  an  order 
denying  :i  motion  for  a  new  trial.     Reported  below,  34  Hun,  534. 

The  net  ion  was  brought  against  the  members  of  the  firm  of  Kidder, 
Peabody,  &  Co.,  Baring  Brothers  &  Co.,  and  John  B.  Hobby,  Sons, 
&  (  o.  to  recover  possession  of  95  cases  of  shellac.  Kidder,  Peabody, 
&  (  o.  were  bankers  in  Boston,  and  agents  of  Baring  Brothers  &  Co. 
John  II.  Hobby,  Sons,  &  Co.  were  warehousemen  in  New  York. 

On  August  •'!,  1881,  Kidder,  Peabody,  &  Co.,  as  such  agents,  under 
an  agreement  with  Paul  M.  Swain,  issued  a  letter  of  credit,  which  was 
confirmed  by  their  principals.  The  following  are  copies  of  the  mate- 
rial portions  of  said  instruments  :  — 

Kidder,  Peabody,  &  Co., 

40 
Bosi 
Messrs.  C.  C.  Bancroft  &  Co.,  Calcutta. 

Dear  Sirs,  —  You  are  hereby  authorized  to  value  on  Messrs. 
Baring  Bros.  &  Co.,  London,  for  account  of  Paul  M.  Swain,  Esq., 
Boston,  Mass.,  by  bills  at  three  (3)  months'  sight  for  the  cost  of  any 
shipment  of  goods  via  San  Francisco  and  thence  overland,  or  at 
three  (3)  to  six  ((>)  months'  sight  for  the  cost  of  goods  by  any  other 
route,  direct,  or  under  through  bills  of  lading  to  Boston  or  New  York, 
to  the  extent  of  three  thousand  pounds  sterling  (say  £3,000  stg.),  and 
we  hereby  agree  with  the  drawers,  indorsers,  and  bona  fide  holders 
respectively  of  the  bills  drawn  by  virtue  of  this  credit  that  the  same 
shall  l)e  duly  honored  by  Messrs.  Baring  Bros.  &  Co.,  upon  presenta- 
tion at  their  banking-house  in  London,  if  drawn  and  negotiated  within 
six  (0)  months  from  this  date,  and  if  accompanied  by  bills  of  lading 
for  such  goods  filled  up  to  the  order  of  Messrs.  Baring  Bros.  &  Co., 
and  by  invoice  of  the  same  to  their  order  for  the  account  of  whom  it 
may  concern. 

A  duplicate  of  such  invoices  with  consular  certificate  attached, 
together  with  one  bill  of  lading,  to  be  sent  direct  to  us  either  by  vessel 
or  mail. 

Very  respectfully,  your  obedient  servants, 

Kidder,  Peabody,  &  Co. 

Boston,  August  ■>,  1  B81. 
Received  the  original  of  within  letter  of  credit  for  three  thousand 
pound  sterling  (say  £3,000  stg.).  In  consideration  whereof  and  of  its 
confirmation  by  Messrs.  Baring  Bros.  &  Co.,  I  hereby  agree  with 
Messrs.  Baring  Bros.  &  Co.  and  Messrs.  Kidder.  Peabody.  &  Co., 
respectively,  to  provide  in  London  sufficient  funds  to  meet  the  pay- 
ment at  maturity  of  whatever  bills  may  be  drawn  or  negotiated  by 
virtue  of  Buch  credit,  together  with  Messrs.  Baring  Bros.  iV;  Co.,  com- 
mission upon  the  amount  of  such  bills.  .  .  .  And  all  property  which 
shall  be  purchased  by  means  of  the  within  credit  and  the  proceed- 
thereof  and  the  policies  of  insurance  thereon  (which  insurance  to  the 
amount  of  the  value  of  such  property  we  agree  shall  be  duly  effected), 


342  MOORS   V.    KIDDER   ET    AL.  [CHAP.  II. 

together  with  the  bills  of  lading  for  the  same  are  hereby  pledged  and 
hypothecated  to  Messrs.  Baring  Bros.  &  Co.  as  collateral  security 
for  the  payment  as  above  promised,  and  also  of  any  other  sums  which 
may  at  the  time  being  be  owing  by  ns  to  Messrs.  Baring  Bros.  &  Co., 
and  shall  be  held  subject  to  their  order  on  demand  with  authority  to 
take  possession  and  dispose  of  the  same  at  discretion  for  their  security 
or  reimbursement  and  so  to  take  possession  and  dispose  of  the  same, 
either  by  themselves  or  their  agents  or  by  Messrs.  Kidder,  Peabody, 
&  Co.   .   .   .  (Signed)  Paul  M.  Swain. 

Against  the  said  credit  C.  C.  Bancroft  &  Co.  drew  their  bill  of 
•exchange  for  account  of  Swain,  for  the  cost  of  a  hundred  cases  of 
shellac,  of  which  the  property  in  controversy  is  a  part,  and  attached 
it  to  a  bill  of  lading  for  the  shellac  to  the  order  of  Messrs.  Baring 
Bros.  &  Co.,  deliverable  in  New  York.  Baring  Bros.  &  Co.  accepted 
said  bill  of  exchange,  and  paid  it  at  maturity. 

On  the  18th  of  November,  Swain  called  at  the  office  of  Kidder, 
Peabody,  &  Co.,  in  Boston,  and  asked  for  the  papers  for  the  shellac, 
stating  to  Mr.  Collins,  the  merchandise  clerk  for  Kidder,  Peabody,  & 
Co.,  that  "he  wanted  to  enter  them  at  the  custom-house,  and  ware- 
house them  for  account  of  Baring  Bros.  &  Co."  Mr.  Collins,  having 
obtained  Mr.  Peabody's  consent,  delivered  the  shipping  papers  to 
Swain,  and  received  the  following  receipt  and  agreement  in  exchange 
for  them :  — 

Boston,  Nov.  18,  1881. 
To  Messrs.   Kidder,  Peabody,  &  Co.,  Boston. 

Gentlemen,  —  I  acknowledge  receipt  from  }7ou,  as  attorneys  for 
Messrs.  Baring  Bros.  &  Co.,  of  invoice  and  bill  of  lading  of 

New  York,  one  hundred  (100)  cases  shellac, 
Rs.  lo,678g 
Shipped  by  C.  C.  Bancroft  &  Co.,  on  board  S.  S.  C/o  "  Manchester," 
at  Calcutta,  and  consigned  to  the  order  of  Messrs.  Baring  Bros.  &  Co. 
and  indorsed  by  you,  as  their  attorneys,  to  me.  Such  invoice  and  bill 
of  lading  are  delivered  to  me  for  the  purpose  of  enabling  me  to  enter 
the  goods  referred  to  in  them  at  the  custom-house. 

And  I  hereby  agree  to  place  the  goods  on  storage  for  Messrs.  Baring 
Bros.  &  Co.,  and  subject  to  their  order,  and  so  that  they  may  be  ap- 
plied to  the  due  performance  of  the  agreement  contained  in  the  receipt 
signed  by  me  for  your  letter  of  credit  on  them,  No.  2,41!),  or  any  other 
letter  of  credit  on  them,  through  which  such  goods  have  been  pur- 
chased, we  agreeing  to  keep  them  covered  by  insurance  against  fire 
for  account  of  and  loss  payable  to  Messrs.  Baring  Bros.  &  Co. 

It  is  understood  that  the  said  goods  are  to  be  warehoused  in  the 
name  of  Messrs.  Baring  Bros.  &  Co.,  and  warehouse  receipts  therefor 
handed  to  you  for  them. 

Very  respectfully,  your  obedient  servant, 

(Signed)  I'm  i.    M.    Swain. 


SECT.  VI.]  MOORS   V.    KIDDER    ET   AL.  343 

Instead  of  doing  as  so  agreed,  upon  receiving  the  shipping-papers, 
Swain  entered  these  goods  in  the  name  of  Win.  A.  Brown  &  Co.,  his 
brokers,  who  obtained  a  certificate  that  they  had  made  due  entry  of 
the  shellac  according  to  law,  the  goods  being  free  from  duty  ;  and  a 
permit  \v:is  given  to  hind  the  same. 

On  the  liJth  of  November,  Swain  made  application  to  plaintiff  for  a 
loan  of  $(>,000,  and  offered  in  his  application  to  give  as  security, 
among  other  things,  ninety-five  cases  of  the  shellac,  which  he  repre- 
sented that  he  owned  and  would  give  a  warehouse  receipt  for.  The 
application  was  accepted,  and  a  portion  of  the  loan  made  on  that  day 
on  other  collaterals. 

On  the  21st,  Swain  gave  an  order  on  W.  C.  Casey,  with  wdiom  the 
shellac  was  stored  in  New  York,  requesting  him  to  deliver  to  the 
order  of  plaintiff  the  ninety-five  cases  of  shellac  ;  and  on  the  22d  he 
forwarded  that  order,  with  a  letter  to  Casey,  asking  him  to  send  a 
non-negotiable  receipt  to  plaintiff's  order.  A  receipt  was  sent  as 
requested ;  on  delivery  of  this  to  plaintiff,  the  balance  of  the  sum 
loaned  was  advanced. 

Further  facts  appear  in  the  opinion. 

Edmund  Randolph  Robinson,  for  appellant. 

('buries  B.  Alexander,  for  respondents. 

Finch,  J.  The  entire  argument  of  the  appellant  turns  upon  the 
proposition  that  Swain  was  the  general  owner  of  the  shellac,  and  the 
Barings  merely  pledgees.  Upon  that  assumption  the  argument  runs 
smoothly  to  its  conclusion,  and  encounters  no  serious  obstacle.  But 
the  grave  trouble  is  in  the  assumption  itself,  and  the  authorities  which 
clash  with  it.  The  general  subject  was  very  thoroughly  discussed  in 
Farmers'  and  Mechanics'  National  Bank  v.  Logan,  74  N.  Y.  568  ;  and 
whether  the  doctrine  there  declared  covers  the  facts  now  presented,  and 
whether  they  have  or  do  not  have  vital  distinguishing  features,  are  the 
real  subjects  for  our  consideration. 

The  doctrine  stated  was,  in  substance,  that  where  a  commercial 
correspondent,  however  set  in  motion  by  a  principal  for  whom  he  acts, 
advances  his  own  money  or  credit  for  the  purchase  of  property  and 
takes  the  bill  of  lading  in  his  own  name,  looking  to  such  property  a> 
the  reliable  and  safe  means  of  reimbursement  up  to  the  moment  when 
the  original  principal  shall  pay  the  purchase-price,  he  becomes  the 
owner  of  the  property  instead  of  its  pledgee,  and  his  relation  to  the 
original  mover  in  the  transaction  is  that  of  an  owner  under  a  contract 
to  sell  and  deliver  when  the  purchase-price  is  paid.  The  authorities 
which  sustain  and  the  reasons  which  justify  the  doctrine  need  not  be 
repeated,  and  it  is  required  only  that  we  determine  whether  it  applies 
to  and  settles  the  case  in  hand.  % 

There  are  some  facts  in  the  cited  case  which  are  not  in  this,  and 
there  are  some  in  this  which  were  not  present  in  that  :  and  to  these 
and  their  effect  attention  must  be  directed.  In  that  case  the  purchase 
was    made    by  the   brokers    or    agents    of    him    who,   as  the    ultimate 


344  MOORS    V.    KIDDER    ET    AL.  [CHAP.  II. 

vendee,  may  be  termed  conveniently,  if  somewhat  inaccurately,  the 
principal.  Such  brokers  were  buyers  and  sellers  on  commission, 
and,  it  is  said,  were  the  commercial  correspondents  to  whom  the  rule 
refers  and  who  needed  and  received  its  protection ;  while  here  the 
only  commercial  correspondents  were  Bancroft  &  Co.  at  Calcutta, 
who  are  not  before  the  court,  and  whose  rights  are  not  in  question. 
But  Bancroft  &  Co.  were  the  sellers  and  not  the  buyers  of  the  shellac, 
in  their  relation  to  the  parties  concerned.  They  passed  their  title 
either  to  the  Barings  or  Swain ;  and  while  they  were  commercial 
correspondents  in  some  sense,  they  were  not  such  within  the  rule 
under  discussion,  for  they  advanced  nothing  on  the  credit  of  the 
property,  and  parted  with  title  instead  of  taking  it.  The  Barings, 
although  bankers,  were  equally  commercial  correspondents,  aud  they 
took  title  through  the  bill  of  lading  and  bought  the  property  on  their 
own  credit.  But  if  Bancroft  &  Co.  be  treated  as  the  commercial 
correspondents,  the  case  is  not  changed.  Like  Sears  &  Daw  in  the 
Logan  Case,  they  bought  the  shellac  on  their  own  credit  or  with  their 
own  money,  and  got  reimbursement  by  drawing  upon  the  Barings, 
transferring  title  to  them  by  the  invoice  and  bill  of  lading  to  their 
order,  as  Sears  &  Daw  did  to  the  discounting  banker  in  the  Logan 
Case.  The  difference  in  the  manner  of  making  the  advances  is  not 
material.     In  each  case  the  bankers  became  owners  or  pledgees. 

In  the  Logan  Case  the  purchasing  correspondent  took  from  the 
vendor  a  bill  of  sale,  as  well  as  a  bill  of  lading  to  his  own  order  ;  but 
the  Barings  took  only  the  bill  of  lading  if  the  invoice  to  their  order 
was  not  tantamount  to  a  bill  of  sale.  We  do  not  deem  that  difference, 
if  it  was  one,  at  all  material.  The  title  passed  as  effectually  by  the 
hitter  paper  alone  as  if  it  had  been  preceded  by  the  former;  for  we 
have  uniformly  held  that  the  bill  of  lading  is  the  evidence  of  title,  and 
is  sufficient  to  vest  the  ownership  and  absolute  control  in  him  to  whose 
order  it  is  drawn.  The  purchase  in  the  c:ise  cited  seems  to  have  pre- 
ceded the  shipment,  so  as  to  make  natural  and  convenient  a  bill  of 
'sale  covering  the  interim.  If  it  had  been  intended  in  this  case  to  vest 
the  general  ownership  in  Swain  and  make  him  the  purchaser,  a  bill  of 
sale  to  him,  or  an  invoice  to  his  order,  might  naturally  have  been 
made;  but  as  to  the  Barings,  the  purchase  and  the  shipment  were 
practically  coincident. 

In  the  cited  case,  again,  the  bill  of  lading,  as  attached  to  and  sent 
forward  with  the  discounted  draft,  had  stamped  upon  it  a  statement 
addressed  to  the  original  principal,  that  the  wheat  aud  the  insurance 
of  it  were  pledged  to  the  plaintiff  as  security  for  the  payment  of  the 
draft;  and  that  the  wheat  was  put  into  his  custody  in  trust  for  that 
purpose,  not  to  be  diverted  to  any  other  use  until  the  draft  was  paid, 
and  that,  upon  his  accepting  and  paying  the  draft,  the  claim  of  the 
plaintiff  would  cense.  This  appears  to  have  been  an  effort  to  put  in 
words  upon  the  bill  of  lading  the  legal  meaning  of  the  transaction.  It 
was  not  necessary  to  the  certainty  or  scope  of  that  legal  meaning,  and 


SECT.  VI.]  MOOES   V.    KIDDER    BT   AL.  345 

amounted  only  to  a  precaution.  A  similar  distinction  was  sought  to 
be  drawn  in  the  cited  case  itself,  between  it  and  First  Nat.  Bank  of 
Toledo  v.  Shaw,  61  N.  Y.  283,  69  id.  624.  In  that  the  bill  of  lading 
was,  when  forwarded,  accompanied  by  a  letter  explicitly  directing  the 
property  to  be  delivered  only  upon  payment  of  the  specified  purchase- 
money.  The  comment  of  the  court  in  the  Logan  Case  was :  ''Such 
agreement  was  but  putting  into  terms  the  legal  effect  of  the  transac- 
tion in  the  case  before  us  ;  for  we  have  shown  by  authority  that  the 
taking  of  the  bill  of  lading  in  the  name  of  the  plaintiff  for  its  account, 
and  the  discount  of  the  draff  by  it  on  the  strength  thereof,  did  transfer 
to  it  the  title  to  the  wheat."  Indeed,  it  seems  to  me  that  the  title  of 
the  then  plaintiff  was  rather  weakened  than  strengthened  by  the  mat- 
ter stamped  upon  the  bill  of  lading  ;  for  it  speaks  of  the  transaction 
as  a  pledge,  when  in  truth  it  was  an  ownership;  and  it  appears  to  be 
for  that  reason  that  the  court,  in  upholding  the  banker's  title  founded 
on  the  bill  of  lading,  speak  of  the  latter  "  even  with  the  modification 
thereof  made  by  the  matter  stamped  upon  it,"  and  "even  as  modified." 
So  that  the  absence  of  the  special  indorsement  in  the  case  at  bar  at 
least  does  not  weaken  the  bearing  of  the  Logan  Case  upon  it. 

But  a  much  more  important  suggestion  made  by  the  appellant  is 
founded  upon  the  terms  of  the  written  agreement  between  Swain  and 
Kidder,  Peabody,  &  Co.  as  agents  of  the  Barings,  which  was  intended 
to  govern  and  control  the  entire  transaction.  They  issued  a  letter  of 
credit  addressed  to  Bancroft  &  Co.,  and  authorizing  them  for  account 
of  Swain  to  value  on  the  Barings  by  bills  for  three  thousand  pounds 
sterling,  and  promised  to  accept  and  pay  those  bills  "  if  accompanied 
by  bills  of  lading  for  such  goods  filled  up  to  the  order  of  Messrs. 
Baring  Bros.  &  Co.,  and  by  invoice  of  the  same  to  their  order,  for 
account  of  whom  it  may  concern."  Swain,  on  his  part,  agreed  to 
provide  funds  in  London  to  meet  such  bills  as  should  be  drawn  at 
their  maturity,  and  that  "  all  property  which  shall  be  purchased  by 
means  of  the  within  credit,  .  .  .  together  with  the  bills  of  lading  for 
the  same  are  hereby  pledged  and  hypothecated  to  Messrs.  Baring 
Bros.  &  Co.  as  collateral  security  for  the  payment  as  above  promised. 
.  .  .  and  shall  be  held  subject  to  their  order  on  demand,  with 
authority  to  take  possession  and  dispose  of  the  same  at  discretion, 
for  their  security  and  reimbursement."  The  argument  upon  this 
provision  rests  upon  the  words  "pledged  and  hypothecated"  and 
"collateral  security,"  and  avers  as  a  consequence  that  Swain  was, 
within  the  contemplation  of  the  parties,  general  owner  of  the  shellac, 
and  the  Barings  merely  pledgees.  It  is  observable  that  Swain  did  not 
so  understand  it,  for  in  his  testimony  lie  said:  »  Kidder.  Peabody,  & 
Co.  were  the  owners  of  these  goods  till  they  arrived  in  Boston."  It 
has  already  been  mentioned  that  a  similar  expression  was  used  by  the 
plaintiff  in  the  Logan  Case  in  the  matter  stamped  upon  tiie  bill  of 
lading,  describing  the  wheat  as  "pledged"  to  the  plaintiff,  and 
"  security"  for  the  payment  of  the  draft;  and  so  little  did  the  use  of 


346  MOORS   V.    KIDDER   ET   AL.  [CHAP.  II. 

the  inapt  words  affect  the  plain  and  unequivocal  substance  of  the  trans- 
action in  the  mind  of  the  court,  that  the  use  of  the  word  "  pledged  " 
was  not  even  made  the  subject  of  remark.  It  is  further  quite  evident 
that  from  the  moment  of  the  shipment  and  the  delivery  of  the  bill  of 
lading,  the  absolute  jus  disponendi  was  in  Kidder,  Peabody,  &  Co., 
by  the  very  terms  of  Swain's  agreement.  They  were  at  liberty  to 
"  dispose  "  of  the  property  4i  at  discretion,"  and  either  for  "  security  " 
or  reimbursement.  It  is  also  to  be  noted  that  what  is  spoken  of  as 
*•  pledged  "  is  not  merely  the  goods  or  the  property,  but  the  bills  of 
lading  also.  These  documents  carry  the  title  as  well  as  the  right  of 
possession,  and  the  pledge  or  hypothecation  is  expressly  applied  to 
both.  The  meaning,  assuredly,  was  that  the  title  should  pass.  Very 
likely,  as  is  suggested  for  the  defendant,  the  transfer  was  rather  in 
the  nature  of  a  mortgage  in  which  the  title  passes  than  in  that  of  a 
pledge  in  which  the  pledgor  is  general  owner.  Here,  then,  we  have  a 
case  where  no  title  was  attempted  to  be  given  to  Swain,  where  it  was 
given  to  the  Barings  by  the  bill  of  lading  to  them,  where  they  paid  for 
the  property  by  their  own  credit  and  money,  where  it  was  the  very  pith 
of  the  adventure  that  the  shellac  should  furnish  the  means  of  meeting 
the  price,  where  the  invoice  was  to  be  made  to  their  order,  where  the 
possession  was  to  be  theirs,  where  they  were  to  have  the  right  of  dis- 
posal at  discretion,  and  Swain  was  to  have  no  control  until  payment 
of  the  draft.  In  such  a  case  he  could  not  be  general  owner,  and  an 
inference  to  that  effect  from  an  inapt  expression  cannot  be  indulged. 
So  far  the  case,  in  our  judgment,  cannot  be  distinguished  from  that 
against  Logan,  upon  the  authorit}'  and  reasoning  of  which  the  Barings 
must  be  deemed  owners,  and  not  merely  pledgees. 

The  settlement  of  that  point  disposes  of  the  case  as  affected  by  the 
factor's  acts  of  this  State  and  Massachusetts,  except  in  a  single  respect. 
It  is  not  pretended  that  the  plaintiff  is  protected  under  the  provision 
which  makes  the  transfer  by  an  agent  intrusted  with  the  evidence  of 
title  and  which  has  been  made  upon  "  the  faith  thereof"  valid  under 
some  circumstances,  even  against  the  real  owner  ;  for  the  bill  of  lading 
with  its  indorsement  was  not  shown  to  the  plaintiff,  and  in  no  manner 
affected  his  action.  But  the  appellant  insists  that  there  was  evidence 
enough  to  go  to  the  jury  that  Swain  was  intrusted  with  the  property 
for  the  purpose  of  a  sale,  or  of  obtaining  advances  upon  it,  and  so, 
under  the  factor's  act,  the  plaintiff's  title  as  pledgee  is  to  be  protected. 
The  course  of  business  brought  the  shellac  to  the  custom  house  and 
into  the  "  general  order"  stores.  From  that  custody  it  could  only  be 
removed  by  some  action  of  Kidder,  Peabody,  &  Co.  by  force  of  their 
bill  of  lading.  Swain  applied  for  the  papers  to  Mr.  Collins,  who  was 
their  merchandise  clerk,  and  who  testifies:  "I  asked  what  he  was 
i  do  with  Liu;  papers,  and  he  said  he  wanted  to  enter  them  at 
th  custom  house  and  warehouse  them  for  account  of  Baring  Bros.  & 
Co."  Collins  repeated  that  request  to  Peabody,  who  gave  his  con- 
sent.  Thereupon  Swain  signed  a  receipt  for  the  papers,  which  specifies 


SECT.  VI.]  MOOliS   V.    KIDDEK    ET   AL.  347 

explicitly  this  one  sole  purpose  for  which  they  were  put  in  his  control ; 
:ind  thereupon  they  were  indorsed  in  blank  to  enable  Swain  to  make 
the  entry  and  to  warehouse  the  goods  as  agreed.  Instead  of  doing 
that,  Swain  entered  them  in  the  name  of  his  broker,  and  then  pledged 
them  to  the  plaintiff  as  security  for  a  loan,  the  pledgee  trusting  to  the 
representations  of  Swain  and  the  warehouse  receipt  which  he  obtained. 
Peabody,  so  far  as  he  was  a  party  to  the  occurrence,  fully  corroborates 
Collins  ;  and  Sw  ain  was  not  thereafter  called  to  deny,  and  did  not  deny, 
their  version  of  the  transaction.  All  that  was  later  shown  in  rebuttal 
was  a  copy  of  the  complaint,  in  an  action  begun  by  Kidder,  Peabody, 
&  Co.  against  Swain  and  Casey,  who  was  the  warehouseman.  The 
opinion  of  the  General  Term  shows  so  fully  that  the  statements  of  that 
complaint,  taken  together,  were  in  no  manner  inconsistent  with  the  evi- 
dence given  for  the  defence  as  to  make  a  repetition  needless  ;  and  we 
may  confine  our  attention  to  the  evidence  of  Swain,  and  what  it  is 
claimed  to  establish. 

Invariably  the  manner  of  dealing  between  the  parties  was  like  that 
developed  in  this  case,  so  far  as  the  written  agreements  were  con- 
cerned. These  were  in  two  forms;  one  of  them,  that  which  we  have 
described,  which  intrusted  the  shipping-papers  to  Swain  solely  that 
he  might  enter  and  warehouse  the  goods  in  the  name  of  Barings, 
and  the  other,  which  recited  their  sale  and  gave  them  into  the  custody 
of  Swain  to  make  delivery  and  collect  the  proceeds  which  were  stipu- 
lated to  "  belong  "  to  the  Barings  and  to  be  handed  over  to  them. 
Swain  could  not  name  a  single  instance  in  which  one  or  the  other  of 
these  papers  was  not  signed  by  him,  but  it  was  sought  to  show  by  him 
that  the  action  under  them  was  loose,  and  he  was  permitted  to  act  dif- 
ferently. He  said  that  he  had  been  in  the  habit  of  entering  the  goods, 
sometimes  in  his  own  name,  and  of  selling  or  pledging  the  goods  and 
paying  the  proceeds  long  after  to  meet  the  drafts  maturing  in  London. 
Under  the  second  form  of  receipt  a  sale  was  contemplated  and 
payment  of  proceeds  over  to  Kidder,  Peabody,  &  Co.,  and  that 
they  did  not  demand  them  immediately  upon  the  sale  and  often 
accepted  them  later,  although  in  time  for  the  drafts,  shows  simply 
their  confidence  in  Swain,  but  did  not  make  their  money  his.  and 
serves  sufficiently  to  explain  Peabody's  alleged  admission  that  Swain 
had  been  permitted  to  do  as  he  pleased.  And  it  is  noticeable  that  the 
one  single  instance  in  which  Swain  says  he  can  remember  the  facts 
of  the  deviation  from  the  written  stipulation  was  one  under  the  second 
form  of  receipt,  in  which  after  a  sale  he  did  not  deliver  over  the  pro- 
ceeds promptly  upon  obtaining  them.  But  he  admits  that  lie  never 
had  any  consent  to  warehouse  the  goods  in  any  other  name  than  that  of 
Barings,  and  out  of  thirty-four  instances  in  which  the  papers  were  put 
in  evidence,  Swain,  with  the  aid  of  the  books,  was  able  to  name  but 
four  instances  in  which  he  warehoused  in  his  own  name  and  pledged  the 
goods.  lie  does  not  pretend  that  the  fact  came  to  the  knowledge  of 
Kidder,  Peabody,  &  Co.,  and  any  such  knowledge  is  denied  by  them. 


34S  FIRST   NATIONAL    BANK    OF   BATAVIA   V.   EGE.         [CHAP.  IL 

The  argument  here  is  that  they  must  have  known,  and  the  jury  might 
have  found  that  they  did  know.  Our  opinion  is  with  that  of  the  courts 
below,  that  such  a  finding  would  not  have  been  warranted.  All  that 
Swain's  evidence  tends  to  show  is,  that  in  transactions  under  form 
No.  1,  he  often  did  not  at  once  turn  over  the  warehouse  receipts  and 
was  not  questioned  about  them,  and  in  transactions  under  form  No.  2, 
was  not  immediately  called  upon  for  the  proceeds  received.  There 
was  not  enough  to  destroy  the  force,  and  work  a  modification  in  the 
written  stipulations  of  the  parties,  and  no  verdict  to  that  effect  would 
have   been  justified. 

The  judgment  should  be  affirmed  with  costs. 

All  concur  except  Rapallo,  Eakl,  and  Peckham,  JJ.,  dissenting. 

Judgment  affirmed. 


FIRST   NATIONAL  BANK  OF  BATAVIA  v.   HORATIO 

N.    EGE. 

New  York  Court  of  Appeals,  March  2  —  April  10,  1888. 

[Reported  in  109  New  York,  120.] 

Ruger,  C.  J.  This  action  was  brought  by  the  alleged  owner,  to  re- 
cover the  value  of  certain  personal  property,  claimed  to  have  been 
wrongfully  converted  by  the  defendants.  The  conversion  is  alleged 
to  have  been  established  by  proof,  that  the  defendants  had  in  their 
possession  on  the  9th  day  of  June,  1861,  the  propert}'  claimed,  and 
that  the  plaintiff  then  demanded  the  same,  and  they  refused  to  deliver 
it.  Such  evidence  would,  of  course,  authorize  a  finding  of  conversion 
of  the  property,  and  if  accompanied  by  evidence  of  title  would  justify 
the  recovery.  The  claim  of  title  by  the  plaintiff  is  somewhat  confused 
b}-  reason  of  the  peculiar  mode  adopted  by  one  Williams,  the  general 
owner,  in  consigning  produce  purchased  by  him,  to  the  defendants  to 
sell  on  commission.  Williams  was  a  produce  dealer,  residing  at  Bata- 
via,  N.  Y.,  and  had  for  several  years  been  in  the  habit  of  sending  his 
property  by  railroad  to  the  defendants,  commission  merchants  in  New 
York,  to  sell.  He  was  accustomed  when  shipping  goods,  to  obtain  from 
the  carrier  two  bills  of  lading,  one  called  an  original,  and  the  other 
marked  as  a  duplicate.  The  originals  were  sent  directly  to  the  defend- 
ants, and  the  duplicates  were  retained  by  Williams  and  attached  to 
drafts  drawn  upon  the  defendants,  which  he  procured  to  be  discounted 
by  the  plaintiff.  These  drafts  were  frequently  drawn  without  particular 
regard  to  the  value  of  the  property  described  in  the  bills  attached  there- 
to, and  were  usually  accepted  or  rejected  by  the  defendants  according 
Id  the  condition  of  Williams'  account,  and  the  value  of  the  consigned 
property  in  their  possession.  This  was  the  general  course  of  business 
pursued  by  the  parties,  and  was  known  to  and  apparently  acquiesced 
in    by  all.       The  particular  transaction  in  question   grew    out   of  the 


SECT.  VI.]         FIBST    NATIONAL   BANK    OF    BATAVIA    V.    EGK  349 

dealings  occurring  between,  Sept.  29,  1879,  and  Feb.  18,  1880.  Dur- 
ing that  period  Williams  bad  drawn  one  hundred  and  forty-five 
drafts,  accompanied  by  the  same  number  of  bills  of  lading,  upon  the 
defendants  aggregating  in  amount  $59,025.  The  first  one  hundred  and 
thirty-five  drafts,  amounting  to  $5:5.72."),  were  accepted  and  paid  by  the 
defendants,  but  the  last  ten,  drawn  between  Jan.  81,  1880,  and  the 
1 3th  of  February,  thereafter,  and  aggregating  $5,800,  were  not 
accepted,  and,  together  with  the  bills  of  lading  accompanying  them, 
were   returned  to  the  plaintiff  as   dishonored    bills. 

The  entire  property  covered  by  the  one  hundred  and  forty-five  bills 
of  lading,  as  shown  by  its  subsequent  sales,  produced  but  $52,065.52., 
so  that  by  the  payment  of  the  first  one  hundred  and  thirty-five  drafts, 
tin'  defendants  had  paid  to  the  plaintiff  an  amount  in  excess  of  the 
total  proceeds  of  the  property  consigned.  The  claim  of  the  plaintiff 
is  that  the  defendants  had  no  right  to  apply  the  proceeds  of  the  prop- 
erty received  by  them  under  the  last  ten  bills  of  lading  to  the  payment 
of  liabilities  incurred  through  the  acceptance  of  previous  drafts,  and 
we  are  of  the  opinion  that  this  contention  is  correct.  The  practice  of 
carriers  in  issuing  duplicate  bills  of  lading  to  consignors  of  property 
shipped  for  sale  has  been  much  disapproved  by  the  courts,  for  the 
reason  that  it  affords  a  convenient  opportunity  for  the  commission  of 
frauds  by  consignors,  as  well  as  subjecting  the  carrier  to  the  hazard 
of  making  incorrect  delivery  of  the. property.  Glyn,  Mills,  &  Co.  v.  E. 
and  W.  India  Dock  Co.,  L.  R.  7  App.  Cases,  591. 

No  copies  of  the  bills  of  lading  issued  in  these  transactions  appear 
in  the  case,  but  we  must  assume  that,  in  accordance  with  the  usual 
custom  in  regard  to  such  instruments,  the}'  authorized  the  delivery  of 
the  property  by  the  carrier  to  the  consignees  named  therein,  according 
to  the  order  in  which  they  were  presented  to  it.  Kemp  v.  Falk.  L.  R. 
7  App.  Cases,  573  ;  Glyn,  Mills,  &  Co.  v.  E.  and  W.  India  Dock  Co., 
supra.  No  question,  however,  arises  in  this  case  over  conflicting  claims 
between  holders  of  respective  bills  of  lading,  so  there  can  be  no  claim 
that  the  defendants  acquired  title  to  the  property  consigned,  by  virtue 
of  the  receipt  of  any  bills  by  them. 

It  was  said  by  Lord  Westbury,  in  deciding  the  case  of  Barber  v.  Meyer- 
stein.  L.  R.  4  E.  and  I.  App.  317,  "there  can  be  no  doubt,  there- 
fore, that  the  first  person,  who,  for  value,  gets  the  transfer  of  a  bill  of 
lading,  though  it  be  only  one  of  a  set  of  three  bills,  acquires  the 
property  ;  and  all  subsequent  dealings  with  the  other  two  bills  must,  in 
law,  be  subordinate  to  that  first  one,  and  for  this  reason,  because  the 
property  is  in  the  person  who  first  gets  a  transfer  of  the  bill  of  lading. 
It  might  possibly  happen  that  the  ship-owner,  having  no  notice  of  the 
first  dealing  with  the  bill  of  lading,  may.  on  the  second  bill  being  [•re- 
sented by  another  party,  be  justified  in  delivering  the  goods  to  that 
party.  But  although  that  may  be  a  discharge  to  the  ship-owner,  it  will 
in  no  respect  affect  the  legal  ownership  of  the  goods." 

These  expressions  are  approved  in  Glyn,  Mills.  &  Co.  v.  E.  and  W. 


350  FIRST   NATIONAL   BANK   OF   BATAVIA   V.    EGE.  [CHAP.  II. 

India  Dock  Company,  supra,  and  undoubtedly  state  the  conditions  of 
the  law  in  England  on  the  subject  at  this  time.  See,  also,  Lick  burrow 
v.  Mason,  2  T.  R.  63.  and  notes  to  that  ease  in  Shirley's  Leading 
Cases  in  Common  Law,  204,  Blackstone  Series.  The  possession  of 
these  bills,  therefore,  gave  the  defendants  no  title  to  the  property 
described  therein,  but  simply  conferred  upon  them  the  right  to  receive 
it  from  the  carrier,  and  hold  it  subject  to  an  accounting  with  the  con- 
signor when  sold,  or  to  the  true  owner  when  he  should  appear.  If, 
however,  before  incurring  liabilities  upon  the  credit  of  such  consign- 
ment, they  received  notice  of  its  previous  transfer  to  another  party  for 
value,  they  could  not  thereafter  deal  with  the  property  to  the  prejudice 
of  the  rights  of  such  party.  By  taking  a  transfer  of  a  bill  of  lading 
from  the  consignor  and  discounting  a  draft  upon  the  faith  thereof,  the 
plaintiff  acquired  title  to  the  property  described  therein  to  the  extent 
of  the  draft  discounted  by  it,  paramount  to  the  claims  of  any  other 
party.  This  would  clearly  be  so  unless  such  party  had  in  good  faith 
parted  with  value  in  reliance  upon  the  possession  of  the  property  law- 
fully acquired.  Commercial  Bk.  of  Keokuk  v.  Pfeiffer,  108  N.  Y.  242, 
and  cases  therein  cited. 

When  a  consignee  of  property  to  sell  accepts  drafts  upon  the  faith  of 
such  consignment,  he  acquires  the  right  to  sell  the  property  and  apply 
its  proceeds  in  payment  of  such  drafts,  but  if  such  proceeds  are  insuf- 
ficient for  such  purpose  he  must  rely  upon  the  responsibility  of  the  drawee 
alone,  to  repay  any  deficiency.  By  the  mere  receipt  of  subsequent  ship- 
ments he  acquires  no  lien  thereon,  to  the  prejudice  of  those  who  have 
advanced  money  upon  them,  and  taken  transfers  of  bills  of  lading,  to 
secure  such  advances. 

The  defendants  had  notice,  by  the  uniform  course  of  dealing  between 
the  parties,  and  the  invariable  practice  of  Williams  in  raising  money  of 
the  plaintiff  to  make  purchases,  that  the  consignments  in  question  had 
been  transferred  to  the  plaintiff,  and  they  could  not  prejudice  its  rights 
thus  acquired,  except  by  incurring  in  good  faith  new  liabilities  upon  the 
faith  of  Williams'  apparent  ownership  and  their  possession  of  the  prop- 
erty, even  if  they  could  do  so  under  such  circumstances.  It  was  the 
duty  of  the  defendants,  when  they  received  notice  of  the  ownership  of 
consignments  by  the  plaintiff,  to  hold  and  dispose  of  them  on  its  ac- 
count, applying  the  proceeds  to  the  payment  of  the  specific  drafts 
accompanying  the  consignment,  and  if  insufficient  for  that  purpose  to 
charge  the  deficiency  to  their  consignor.  The  plaintiff,  however,  never 
incurred  any  liability  to  the  defendants  on  account  of  the  acceptance  and 
payment  of  drafts  by  the  defendants,  for  a  greater  amount  than  the  value 
of  the  property  consigned,  and  had  the  right  to  consider  each  subsequent 
consignment,  as  a  new  dealing,  to  be  treated  according  to  the  specific 
lights  thereby  acquired. 

With  respect  to  the  ten  bills  of  lading  in  question,  the  evidence 
shows  that  the  plaintiff  advanced  money  upon  the  transfer  thereof  to  it, 
and  acquired  title  to  the  property  therein  described   before  any  other 


SECT.  VI.]  DOUGLAS   V.    PEOPLE'S    BANK.  351 

right  or  claim  could  have  attached  thereto,  and  it  is  clear  that  they  had 
the  right  to  have  its  proceeds  applied  in  satisfaction  of  the  respective 
drafts  accompanying  the  respective  consignments,  or  to  have  the  prop- 
erty delivered  to  them  upon  demand. 

Some  proof  was  given  tending  to  show  that  the  plaintiff  was  ignorant 
of  its  legal  rights  until  after  all  the  consignments  were  received  by  the 
defendants  ;  but  there  is  no  evidence  that  the  defendants  were  prejudiced 
by  lliis  conduct  of  the  plaintiff,  or  that  it  was  estopped  from  asserting 
its  legal  ownership  by  any  steps  taken  by  the  defendants  in  reliance  upon 
the  plaintiff's  conduct. 

It  is  quite  possible  that  the  defendants  might  thereby  have  felt 
authorized  to  pursue  a  course  of  business  which  would  not  otherwise 
have  been  adopted  ;  but  this  affords  no  reason  why  courts  should  disre- 
gard the  plain  legal  rights  of  parties,  unless  some  element  of  estoppel, 
as  against  such  parties,  is  introduced  into  the  transaction.  The  fact 
that  a  party  has  on  other  occasions  omitted  to  enforce  his  clear  legal 
rights  as  to  some  property,  affords  no  reason  why  he  should  be 
defeated  as  to  legal  claims  upon  other  property,  when  he  does  finally 
assert  them. 

The  judgment  of  the  General  Term  should  be  affirmed. 

All  concur. 

Judgment  affirmed.1 


DOUGLAS,  Receiver,  v.  PEOPLE'S  BANK  OF  KENTUCKY. 

Kentucky  Court  of  Appeals,  October  18,  1887. 

[Reported  in  86  Kentucky,  176.] 

Bennett,  J.  The  appellee  brought  suit  in  the  Louisville  Chancery 
Court  against  the  appellant,  and  the  firm  of  Moise,  Barbour.  &  Co., 
partners  in  the  grain  business  in  the  city  of  Louisville.     The  appellee 


1  "  The  doctrine  is  thnt  where  a  c^yuercial  correspondent  advances  his  own  money 
or  credit,  for  a  principal  fur  the  pun^Hf  °f  property  for  such  principal,  and  takes  the 
hills  of  lading  in  his  own  name,  loaning  to  the  property  as  security  for  reimburse- 
ment, such  correspondent  becomes  the  owner  of  the  property,  instead  of  the  pledgee, 
up  to  the  moment  when  the  original  principal  shall  pay  the  purchase-price,  and  the 
correspondent  occupies  the  position  of  an  owner  under  a  contract  to  sell  and  deliver 
when  the  purchase-price  is  paid.  This  doctrine  is  stated  in  Moors  v.  Kidder,  106  X.  Y. 
32,  and  founded  upon  the  cases  cited  by  Finch,.!.,  in  that  case.  Nothing  therein  gives 
color  to  the  idea  that  the  correspondent's  ownership  is  of  that  character  which  would 
permit,  his  exaction,  even  though  agreed  to  by  the  principal,  of  a  general  lien  upon  the 
property  for  other  and  prior  indebtedness  of  the  principal  as  against  one  in  the  situa- 
tion of  St.  Ainant.  The  correspondent's  position  is  one  of  ownership  so  far  only  as  is 
necessary  to  secure  him  for  the  advances  he  made  upon  the  merchandise  described  in 
the  hill  of  lading,  and  in  such  a  case  as  this  he  is  hound  to  sell  upon  receipt  of  the  pur- 
chase-price from  the  principal,  or,  in  other  words,  upon  receipt  of  the  amount  he  ad- 
vanced upon  its  credit.  In  no  other  sense  is  the  correspondent  the  owner  of  the 
property."     Drexel  v.  Tease,  133  N.  Y.  129,  136. 


352  DOUGLAS  v.  people's  bank.  [chap.  II. 

sought  by  the  suit  to  recover  judgment  against  the  firm  of  Moise, 
Barbour,  &  Co.,  on  a  note  for  85.000  which  the  firm  executed  to  the 
appellee.  The  appellee  also  sought  to  recover  judgment  against  the 
appellant  for  the  value  of  corn  and  rye,  the  title  to  which  was  evidenced 
by  six  hills  of  lading,  executed  by  the  appellant  as  a  common  carrier, 
by  wbieh  the  appellant  undertook  to  deliver  to  the  firm  of  Moise, 
Barbour,  &  Co.,  in  the  city  of  Louisville,  the  grain  mentioned  in  the 
lulls  of  lading.  Each  bill  of  lading  shows  that  the  grain  therein  men- 
tioned was  shipped  to  the  order  of  the  shipper,  per  advice  of  Moise, 
Barbour,  &  Co.,  and  each  bill  of  lading  was  indorsed  by  the  shipper;  and 
that  1  he  firm  of  Moise,  Barbour,  &  Co.  was  the  owner  of  each  of  them.  It 
was  alleged  by  the  appellee  that  Moise,  Barbour,  &  Co.,  while  they  were 
the  owners  of  these  bills  of  lading,  transferred  and  delivered  them  to 
it,  in  pledge  as  collateral  security  to  the  above-named  note,  and  that 
the  note  was  due  and  unpaid  ;  and  that  the  appellant  refused  to  deliver 
the  grain  to  the  appellee.  The  appellee  upon  the  foregoing  allegations 
asserted  its  lien  upon  the  grain,  and  sought  judgment  against  the 
appellant  for  its  value.  The  appellant  put  in  issue  the  allegations  of 
the  appellee  in  reference  to  these  matters  ;  and  a  trial  of  the  case  re- 
sulted in  a  judgment  against  the  appellant  for  the  value  of  the  grain.  This 
appeal  is  prosecuted  from  that  judgment. 

A  bill  of  lading  does  not  possess  the  characteristics  of  bills  of  ex- 
change, or  other  negotiable  instruments,  placed  upon  the  footing  of 
bills  of  exchange.  The  peculiar  characteristics  of  these  instruments 
rest  either  upon  statute  or  commercial  usage  sanctioned  by  express 
decision.  A  bill  of  lading  has  neither  of  these  foundations  to  rest  upon. 
It  does  not  represent  money,  but  property.  No  one  ever  supposed 
that  a  written  obligation  to  pay  so  much  in  property,  or  to  deliver 
such  and  such  property,  possessed  the  characteristics  of  negotiability 
in  the  sense  of  a  bill  of  exchange,  or  other  instrument  placed  upon  the 
footing  of  a  bill  of  exchange.  Such  instruments  represent  money  in 
commercial  usage  ;  and  the  innocent  holder  for  value  in  the  usual  course 
of  trade  is  protected  against  all  equities  of  the  antecedent  parties.  Nor 
is  such  innocent  holder's  right  affected  h\  any  infirmity  in  such  instru- 
ments. They  are  protected  in  some'ijpes  against  the  claim  of  the 
rightful  owner,  whereas  the  indorser  or  assignee  of  a  bill  of  lading  must 
trace  his  title  back  to  its  true  owner.  lie  has  no  greater  right  than  the 
true  owner.  When  it  is  said  that  a  bill  of  lading  is  negotiable,  it  is 
only  meant  that  its  true  owner  may  transfer  it  by  indorsement  or  assign- 
ment so  as  to  vest  the  legal  title  in  the  indorsee.  See  Pollard  v.  Vinton. 
105  U.  S.  7. 

A  Bale  and  delivery  of  personal  property  by  the  owner  perfect  the  title 
in  the  vendee.  He  thereby  acquires  a  right  to  the  property  which  is 
superior  to  antecedent  equities  and  liens  of  which  he  had  no  actual 
notice,  or  such  notice  as  the  law  requires  him  to  take  cognizance  of. 
Both  a  contract  of  sale  and  delivery  of  personal  property  are  necessary 
to  the  completion  of  title  in  the  vendee  ;  he  thereby  acquires  a  right  to 


SECT.  VI.]  DOUGLAS   V.    PEOPLE'S   BANK.  353 

the  property  which  is  superior  to  antecedent  equities,  liens,  or  execu- 
tory sales,  as  between  the  vendor  and  third  persons  of  which  he  had 
at  the  time  of  his  purchase  no  actual  notice,  or  such  notice  as  the  law 
requires  him  to  take  cognizance  of.  And  where  the  property  is  in 
transit  by  the  carrier,  the  owner  may  deliver  it  to  the  purchaser  sym- 
bolically. This  may  be  done  by  the  owner's  indorsement  of  the  bill  of 
lading  to  the  purchaser. 

It  is  said,  in  Newsom  v.  Thornton,  6  East,  41,  that  "a  bill  of  lad- 
ing will  pass  the  property  upon  a  bona  fide  indorsement  and  delivery, 
when  it  is  intended  so  to  operate,  in  the  same  manner  as  a  direct 
delivery  of  the  goods  themselves  would  do,  if  so  intended  ;  but  it  cannot 
go  further." 

In  Hatfield  v.  Phillips,  9  Mees.  &  W.  648,  it  is  said  :  "  As  soon  as 
the  goods  are  landed  and  warehoused  in  the  name  of  the  holder,  he 
then  becomes  possessed  of  the  goods  themselves  in  the  eye  of  the  law, 
and  derives  his  power  not  from  the  bill  of  lading,  but  from  such  pos- 
session. But  while  the  cargo  is  still  at  sea,  or  the  transit  continues  in 
an}-  other  form,  the  bill  of  lading  stands  for  and  represents  the  goods 
themselves,  and  will  therefore  enable  the  assignee  to  do  as  much,  but  no 
more,  than  he  could  have  done  if  they  had  actually  arrived  and  come  to 
his  possession." 

In  Meyerstein  v.  Barber,  L.  R.  2  C.  P.  38,  45,  it  is  said  :  "  The  bill 
of  lading  represents  them  [the  goods],  and  the  indorsement  and  delivery 
of  the  bill  of  lading  operate  exactly  the  same  as  a  delivery  of  the  goods 
themselves  to  the  assignee  after  the  ship's  arrival  would  do."  So,  the 
assignment  of  a  bill  of  lading  for  value,  while  the  goods  are  in  transit, 
is  limited  to  the  effect  of  symbolizing  their  sale  and  delivery  ;  and  the 
assignee  is  thereby  invested  with  all  the  rights  of  a  purchaser  with  actual 
delivery  of  possession,  but  no  more. 

It  is  also  well  settled  that  the  owner  of  a  bill  of  lading  may  pledge  the 
same  as  collateral  security  for  a  debt ;  and,  as  it  is  indispensable  to  the 
validity  of  a  pledge  that  the  actual  possession  of  the  property  pledged 
should  pass  to  the  pledgee,  so  the  possession  of  the  property  which  is 
sought  to  be  pledged  while  it  is  in  transit  ma}T  be  effected  by  trans- 
ferring the  bill  of  lading.  Such  transfer  of  the  bill  of  lading  is  regarded 
as  equivalent  to  investing  the  pledgee  with  the  actual  possession  of  the 
property.  Such  pledge  does  not  invest  the  pledgee  with  title  to  the 
property.  The  title  remains  in  the  pledgor ;  but  the  pledgee  acquires 
a  lien  upon  the  property  for  the  security  of  his  debt ;  and  this  lien,  as 
long  as  he  retains  the  possession  of  the  property,  either  actual  or  sym- 
bolical, is  a  legal  lien  which  is  paramount  to,  and  will  therefore  prevail 
against,  any  prior  equities  existing  on  behalf  of  third  parties  of  which 
the  pledgee  had  no  notice,  or  of  which  he  was  not  required  by  law  to  take 
notice.     See  Petitt  v.  Bank,  4  Bush,  338. 

As  before  stated,  the  grain  mentioned  in  the  six  bills  of  hiding  in 
controversy  was  made,  by  the  terms  of  the  bills  of  lading,  deliverable 
to  the  shipper's  order.     Therefore  the  title  to  the  grain  did  not  pass  to 

23 


354  DOUGLAS  v.  people's  bank.  [chap.  II. 

the  consignees,  Moise,  Barbour,  &  Co.,  but  remained  in  the  shipper; 
and  he  could  only  pass  his  title  to  the  grain  to  the  consignees  by  an 
indorsement  of  the  bills  of  lading.  And  the  appellant,  the  railroad 
company,  had  not  the  right  to  deliver  the  grain  to  the  consignees, 
or  any  one  else  except  upon  the  order  of  the  shipper.  The  shipper 
reserved  to  himself  the  right  of  propert}'  in  the  grain  ;  and  the  railroad 
company  undertook  to  transport  it  as  his  property,  and  to  deliver  it 
only  upon  his  order  ;  and  it  was  the  contract  duty  of  the  railroad  com- 
pany so  to  do ;  and  if  the  company  delivered  the  grain  to  Moise,  Bar- 
bour, &  Co.,  without  their  being  the  owners  of  it,  which  fact  could 
only  be  manifested  by  the  exhibition  of  the  bills  showing  that  the}' 
were  the  owners  of  them  by  the  indorsement  of  the  shipper,  the 
company  therebj*  rendered  itself  liable  to  the  true  owner  of  the 
grain  for  its  value.  See  2  Daniel,  Neg.  Inst.  §  1740;  Hutch.  Carr. 
§§  130,   133. 

The  appellant,  the  railroad  company,  delivered  the  grain  to  Moise, 
Barbour,  &  Co.,  and  there  is  no  doubt  but,  at  the  time  of  the  delivery, 
they  were  the  owners  of  the  grain  which  the  bills  of  lading  represented. 
The  appellee  concedes  this  fact ;  but  it  contends  that,  at  the  time  of 
the  delivery,  it  was  in  the  actual  possession  of  the  bills  of  lading,  and 
was  the  owner  of  them  as  pledge  for  the  security  of  Moise,  Barbour,  & 
Co.'s  indebtedness  to  it,  whereby  it  had  a  lien  on  the  grain  itself  to 
secure  said  indebtedness.  If  it  be  true  that,  at  the  time  the  railroad 
company  delivered  the  grain  to  Moise,  Barbour,  &  Co.,  the  appellee 
held  the  actual  possession  of  these  bills  of  lading  in  pledge  for  the 
security  of  their  indebtedness  to  it,  and  the  railroad  company  delivered 
the  grain  to  Moise,  Barbour,  &  Co.,  notwithstanding  that  fact,  and 
without  requiring  them  to  show  by  the  production  of  the  bills  of  lading 
that  the}'  were  the  owners  of  the  grain,  they  are  in  that  case  liable  to 
the  appellee  for  its  value.  On  the  other  hand,  if  the  grain  was  deliv- 
ered to  Moise,  Barbour,  &  Co.,  by  their  exhibiting  the  bills  of  lading 
to  the  railroad  company,  which  showed  that  the}'  were  the  owners  of 
them  and  entitled  to  them,  and  that  Moise,  Barbour,  &  Co.  were  enabled, 
b}'  the  conduct  of  the  appellee,  to  thus  exhibit  said  bills  as  their  own, 
for  the  purpose  of  obtaining  the  delivery  of  the  grain  to  themselves, 
and  whereby  they  did  obtain  its  delivery  to  themselves,  then  the 
appellee  should  not  be  allowed  to  recover  the  value  of  the  grain  from 
the  appellant. 

The  railroad  company's  cashier  swears  that  the  company's  place  of 
switching  its  freight  trains  was  in  Jefferson ville,  where  the  freight  re- 
mained until  orders  were  received  where  to  deliver  it;  that  the  bills  of 
lading  were  presen  ,ed  by  Moise,  Barbour,  &  Co.  at  the  window  of  the 
cashier's  office,  and  the  numbers  of  the  cars  transcribed  from  the  bills 
of  lading  to  the  books  of  the  company,  and  the  cars  ordered  over  to 
Louisville,  and  the  grain  there  delivered.  While  the  cashier  swears 
that  lie  could  not  remember  that  these  identical  bills  were  presented  at 
the  cashier's  oUlce  by  Moise,  Barbour,  &  Co.,  yet  he  is  positive  that 


SECT.  VI.]  DOUGLAS   V.    PEOPLE'S   BANK.  355 

the}-  were  so  presented,  property  indorsed,  for  the  reasons  that  all  bills 
of  lading  made  to  order  of  the  shipper  were  required  to  be  exhibited 
property  indorsed  before  the  company  would  deliver  the  grain,  and  that 
a  memorandum  of  each  car  containing  the  grain  was  taken  directly  from 
each  bill  of  lading,  from  which  memorandum  the  car  was  ordered  over 
to  Louisville.  And  while  unable  to  recall  to  memory  the  particular  bills 
of  lading  in  controversy,  he  remembers  that  no  grain  was  delivered  to 
Moise,  Barbour,  &  Co.  on  bills  of  lading  requiring  the  grain  to  be  deliv- 
ered to  the  order  of  the  shipper,  unless  they  presented  the  bills  property 
indorsed.  The  chancellor  was  of  the  opinion  that  the  cashier  of  the 
company  was  mistaken  as  to  these  particular  bills  of  lading  having  been 
presented  by  Moise,  Barbour,  &  Co. 

We  think  that  the  evidence  in  the  case  fails  to  show  a  different  state 
of  case.  His  evidence  is  strong,  consistent,  and  direct,  and  is  circum- 
stantially corroborated  by  the  evidence  of  the  appellee's  cashier.  He 
swears  that  it  was  the  agreement  between  the  appellee  and  Moise,  Bar- 
bour, &  Co.  that  the  latter  might  withdraw  the  bills  of  lading  deposited 
from  time  to  time,  by  depositing  other  bills  of  lading  of  equal  value  in 
their  place.  The  object  of  allowing  the  withdrawals  and  substitutions 
was  to  enable  Moise,  Barbour,  &  Co.  to  receive  the  freight  on  the  bills 
of  lading  withdrawn.  He  also  swears  that  not  only  Moise,  Barbour,  & 
Co.,  but  their  clerk,  came  to  the  bank  whenever  it  suited  them,  and  took 
the  bills  of  lading  in  hand,  and  made  such  withdrawals  and  substitu- 
tions as  they  saw  proper,  without  the  supervision  of  any  of  the  bank 
officers,  and  without  their  knowledge  of  what  bills  of  lading  were  with- 
drawn, or  what  left  in  their  place,  if  any.  So  we  have  no  proof  that 
these  bills  of  lading  were  in  the  actual  possession  of  the  appellee  at  the 
respective  times  the  grain  was  delivered;  but  we  have  proof  that 
Moise,  Barbour,  &  Co.  had  the  appellee's  authority  to  withdraw  these 
bills  of  lading  for  the  purpose  of  receiving  the  freight  that  they  repre- 
sented. We  also  have  proof  that  they  and  their  clerk  handled  the  bills 
of  lading  at  pleasure,  and  made  such  changes  as  they  pleased.  It  also 
appears  that  they  had  the  opportunity,  furnished  by  the  appellee,  to 
withdraw  these  bills  for  the  purpose  of  receiving  the  freight  thereon, 
and  then  return  them.  With  these  facts  before  us,  we  find  nothing  in 
the  record  that  directly,  or  by  necessary  implication,  contradicts  the 
evidence  of  the  company's  cashier. 

While  it  may  be  admitted  that  the  railroad  company  was  not  punc- 
tiliously exact  in  dealing  with  Moise,  Barbour,  &  Co.  as  to  the  delivery 
of  the  grain,  yet  it  may  be  regarded  as  a  fact  that  the  bills  of  lading 
properly  indorsed  were  presented  to  the  company  by  Moise,  Barbour, 
&  Co.,  who  were  in  fact  the  legal  owners  of  the  grain  which  the  bills 
represented,  but  subject  to  the  appellee's  lien  ;  and  that  the  grain  was 
delivered  to  them  on  the  faith  of  the  presentation  of  the  bills  of  lading 
properly  indorsed,  and  the  apparent  ownership  in  Moise.  Barbour.  & 
Co.;  and  that  the  bills  of  lading  were  presented,  and  the  grain  deliv- 
ered by  the  conduct  and  authority  of  the  appellee.     Therefore  the  pro- 


356  DOUGLAS  v.  people's  bank.  [chap.  II. 

position  to  allow  the  appellee  to  recover  the  value  of  the  grain  from  the 
appellant,  under  these  circumstances,  contains  no  element  of  fair  deal- 
ing, no  equit}',  no  legal  right.  It,  the  appellee,  is  estopped  to  gainsay 
and  undo  what  was  authorized  and  sanctioned  by  its  conduct. 

The  judgment  of  the  lower  court  is  reversed,  and  the  case  is  remanded, 
with  directions  to  dismiss  the  appellee's  petition. 


CHAP.  III.]  WISEMAN   V.    VANDEPUTT.  357 


CHAPTER   III. 

STOPPAGE    IN   TRANSITU. 

WISEMAN   v.    VANDEPUTT. 

In  Chancery,  Hilary  Term,   1690. 

[Reported  in  2  Vernon,  203.] 

The  plaintiffs  being  assignees  under  a  statute  of  bankruptcy  taken 
out  against  the  Bonnells,  brought  their  bill  for  a  discovery  and  relief, 
touching  two  cases  of  silk  at  first  consigned  by  Altoniti  and  Antinori 
to  the  Bonnells,  then  considerable  merchants  in  London  ;  but  before  the 
ship  set  sail  from  Leghorn,  news  came  that  the  Bonnells  were  failed, 
and  thereupon  Altoniti  and  Antinori  alter  the  consignment  of  the  silks, 
and  consign  them  to  the  defendant. 

Upon  the  first  hearing,  the  court  ordered  all  letters,  papers,  &c,  to 
be  produced,  and  that  the  parties  proceed  to  a  trial  in  trover,  to  see 
whether  the  first  consignment,  notwithstanding  the  altering  thereof,  and 
new  consignment  made,  before  the  ship  sailed,  vested  the  property  of 
those  silks  in  the  Bonnells ;  and  upon  the  trial,  and  verdict  being 
given  for  the  plaintiffs,  the  cause  now  came  on  upon  the  equity 
reserved. 

The  court  declared  the  plaintiffs  ought  not  to  have  had  so  much  as  a 
discovery,  much  less  any  relief  in  this  court  in  regard  that  the  silks 
were  the  proper  goods  of  the  two  Florentines,  and  not  of  the  Bonnells, 
nor  the  produce  of  their  effects  ;  and  therefore,  they  having  paid  no 
money  for  the  goods,  if  the  Italians  could  by  any  means  get  their  goods 
again  into  their  hands,  or  prevent  their  coming  into  the  hands  of  the 
bankrupts,  it  was  but  lawful  for  them  so  to  do,  and  very  allowable  in 
equit}'. 

And  it  was  so  ruled  in  the  like  case  between  Wigfall  and  Motteux, 
&c,  and  lately  between  Hitchcox  and  Sedgwick  in  case  of  a  purchase, 
without  notice  of  bankruptcy.  Therefore  decreed  an  account,  if  any- 
thing due  from  the  Italians  to  the  Bonnells,  that  should  be  paid  the 
plaintiffs,  but  they  should  not  have  the  value  of  the  silks  by  virtue  of 
the  consignment  or  verdict,  and  put  the  Italians  to  come  in  as  creditors 
under  the  Statute  of  Bankrupts. 


358  d'aquila  v.  lambert.  [chap.  hi. 


BURGHALL  v.    HOWARD. 
In  Chancery,   after  Hilary,  1759. 

[Reported  in  1  H.  Blackstone,  365,  note.] 

One  Burghall  at  London  gave  an  order  to  Bromley  at  Liverpool  to 
send  him  a  quantity  of  cheese.  Bromley  accordingly  shipped  a  ton  of 
cheese  on  board  a  ship  there,  whereof  Howard  the  defendant  was  master, 
who  signed  a  bill  of  lading  to  deliver  it  in  good  condition  to  Burghall 
in  London.  The  ship  arrived  in  the  Thames,  but  Burghall  having 
become  a  bankrupt,  the  defendant  was  ordered  on  behalf  of  Bromley 
not  to  deliver  the  goods,  and  accordingly  refused,  though  the  freight 
was  tendered.  It  appeared  by  the  plaintiff's  witnesses  that  no  par- 
ticular ship  was  mentioned,  whereby  the  cheese  should  be  sent,  in 
which  case  the  shipper  was  to  be  at  the  risk  of  the  peril  of  the  seas. 
The  action  was  on  the  case  upon  the  custom  of  the  realm  against  the 
defendant  as  a  carrier. 

Lord  Mansfield  was  of  opinion  that  the  plaintiffs  had  no  foundation 
to  recover,  and  said  he  had  known  it  several  times  ruled  in  Chancery, 
that  where  the  consignee  becomes  a  bankrupt,  and  no  part  of  the  price 
had  been  paid,  that  it  was  lawful  for  the  consignor  to  seize  the  goods 
before  they  come  to  the  hands  of  the  consignee  or  his  assignees ;  and 
that  this  was  ruled,  not  upon  principles  of  equit}'  only,  but  the  laws  of 
property.  The  fjlaintiffs  were  nonsuited. 


D'AQUILA    o.   LAMBERT. 
In  Chancery,  June  9,  1761. 

[Reported  in  1  Ambler,  399  ] 

The  plaintiff,  being  a  merchant  at  Leghorn,  bought  a  large  quantity 
of  goods,  by  direction  of  defendant  Israeli,  who  resided  in  England, 
and  consigned  them  to  him,  and  drew  bills  of  exchange  for  the  money. 
The  bills  were  accepted  by  Israeli,  but  were  protested  for  non-payment, 
on  Israeli's  becoming  insolvent,  and  making  a  composition  with  his 
creditors,  and  assigning  his  effects  in  trust  for  them. 

The  goods  arrived  at  the  port  of  London,  and  the  agent  for  the  con- 
signor, and  the  agent  for  the  creditors,  severally  applied  to  the  captain 
for  the  goods,  but  he  refused  to  deliver  them  till  the  right  was  settled. 

liill  by  plaintiff  to  have  the  goods  delivered. 

Lord  Northington,  C.  This  is  a  question  of  extent  and  con- 
sequence in  trade.  If  it  had  been  res  Integra,  I  should  have  required 
a  more  extensive  argument,  and  taken  time  to  consider;  but  it  is  not 


CHAP.  III.]  LICKBAKROW    V.    MASON.  3~>9 

a  case  of  difficulty.  Has  been  settled  by  several  determinations,  which 
have  been  universalty  approved  of  by  merchants.  The  plaintiff  is  sub- 
stantially to  be  considered  as  a  merchant  selling  goods  to  Israeli.  The 
case  of  Wilkinson  is  in  point.  It  was  determined,  on  solid  reasons, 
that  the  goods  of  one  man  should  not  be  applied  in  payment  of  another 
man's  debts.  Goods  to  be  delivered  to  plaintiff. 


LICKB ARROW   v.   MASON. 
In  the  King's  Bench,  November  9,   1787. 
In  the  Exchequer  Chamber,  February  11,   1790. 
In  the  House  of  Lords,  Trinity  Term,  1793. 
In  the  King's  Bench,  July  2,  1794. 

[Reported  in  2  Term   Reports,  63;   1   //.    Dlackstone,  357;  2  /6.  211  .   6  East,  20,  note  ; 

5  Term  Reports,  683] 

Trover  for  a  cargo  of  corn.  Plea,  the  general  issue.  The  plaintiffs, 
at  the  trial  before  Buller,  J.,  at  the  Guildhall  Sittings  after  last  Easter 
Term,  gave  in  evidence  that  Turing  and  Son,  merchants  at  Middle- 
bourg  in  the  province  of  Zealand,  on  the  22d  July,  1786,  shipped  the 
goods  in  question  on  board  the  "Endeavor"  for  Liverpool  by  the 
order  and  directions,  and  on  the  account  of  Freeman  of  Rotterdam. 
That  Holmes,  as  master  of  the  ship,  signed  four  several  bills  of  lading 
for  the  goods  in  the  usual  form  unto  order  or  to  assigns ;  two  of 
which  were  indorsed  by  Turing  and  Son  in  blank,  and  sent  on  the 
22d  July..  1786,  by  them  to  Freeman,  together  with  an  invoice  of 
the  goods,  who  afterwards  received  them  ;  another  of  the  bills  of  lading 
was  retained  by  Turing  and  Son,  and  the  remaining  one  was  kept 
by  Holmes.  On  the  25th  July,  1786,  Turing  and  Son  drew  four  several 
bills  of  exchange  upon  Freeman,  amounting  in  the  whole  to  £477  in 
respect  of  the  price  of  the  goods,  which  were  afterwards  accepted  by 
Freeman.  On  the  25th  of  July,  1786,  Freeman  sent  to  the  plaintiffs  the 
two  bills  of  lading,  together  with  the  invoice  which  he  had  received 
from  Turing  and  Son,  in  the  same  state  in  which  he  received  them,  in 
order  that  the  goods  might  be  taken  possession  of  and  sold  by  them 
on  Freeman's  account ;  and  on  the  same  day  Freeman  drew  three  sets 
of  bills  of  exchange  to  the  amount  of  £520  on  the  plaintiffs,  who 
accepted  them,  and  have  since  duly  paid  them.  The  plaintiffs  are 
creditors  of  Freeman  to  the  amount  of  £542.  On  the  15th  August, 
1786,  and  before  the  four  bills  of  exchange  drawn  by  Turing  and  Son 
on  Freeman  became  due,  Freeman  became  a  bankrupt :  those  bills 
were  regularly  protested,  and  Turing  and  Son  have  since  been  obliged, 
as  drawers,  to  take  them  up  and  pay  them.     The  price  of  the  goods  so 


3  GO  LICKB ARROW   V.    MASON.  [CHAP.  III. 

shipped  by  Turing  and  Son  is  wholly  unpaid.  Turing  and  Son,  hearing 
of  Freeman's  bankruptcy  on  the  21st  of  August,  1786,  indorsed  the  bill 
of  lading,  so  retained  by  them,  to  the  defendants;  and  transmitted  it  to 
them,  with  an  invoice  of  the  goods,  authorizing  them  to  obtain  posses- 
sion of  the  goods  on  account  of  and  for  the  use  and  benefit  of  Turing 
and  Son.  which  the  defendants  received  on  the  28th  August,  1786.  On 
the  arrival  of  the  vessel  with  the  goods  at  Liverpool  on  the  28th 
August,  1786,  the  defendants  applied  to  Holmes  for  the  goods,  produc- 
ing the  bill  of  lading,  who  thereupon  delivered  them,  and  the  defendants 
took  possession  of  them  for  and  on  account  of,  and  to  and  for  the  use 
and  benefit  of  Turing  and  Son.  The  defendants  sold  the  goods  on 
account  of  Turing  and  Son,  the  proceeds  whereof  amounted  to  £557. 
Before  the  bringing  of  this  action  the  plaintiffs  demanded  the  goods 
of  the  defendants,  and  tendered  to  them  the  freight  and  charges  ;  but 
neither  the  defendants  or  Freeman  have  paid  or  offered  to  pay  the 
plaintiffs  for  the  goods.  To  this  evidence  the  defendants  demurred ; 
and  the  plaintiffs  joined  in  demurrer. 

JErskine,  in  support  of  the  demurrer ;  Manly,  against  it. 

Shepherd,  in  support  of  the  demurrer ;  Bearcroft,  contra. 

Ashhurst,  J.  As  this  was  a  mercantile  question  of  veiy  great  im- 
portance to  the  public,  and  had  never  received  a  solemn  decision  in  a 
court  of  law,  we  were  for  that  reason  desirous  of  having  the  matter 
argued  a  second  time,  rather  than  on  account  of  any  great  doubts 
which  we  entertained  on  the  first  argument.  We  ma}-  lay  it  down  as  a 
broad  general  principle,  that,  wherever  one  of  two  innocent  persons 
must  suffer  by  the  acts  of  a  third,  he  who  has  enabled  such  third  per- 
son to  occasion  the  loss  must  sustain  it.  If  that  be  so,  it  will  be  a 
strong  and  leading  clew  to  the  decision  of  the  present  case.  It  has 
been  argued,  that  it  would  be  very  hard  on  a  consignor,  who  has  re- 
ceived no  consideration  for  his  goods,  if  he  should  be  obliged  to  deliver 
them  up  in  case  of  the  insolvency  of  the  consignee,  and  come  in  as  a 
creditor  under  his  commission  for  what  he  can  get.  That  is  certainly 
true  ;  but  it  is  a  hardship  which  he  brings  upon  himself.  When  a  man 
sells  goods,  he  sells  them  on  the  credit  of  the  bu}'er :  if  he  deliver  the 
goods,  the  property  is  altered,  and  he  cannot  recover  them  back  again, 
though  the  vendee  immediately  become  a  bankrupt.  But  where  the 
delivery  is  to  be  at  a  distant  place,  as  between  the  vendor  and  vendee, 
the  contract  is  ambulatory  till  delivery  ;  and  therefore,  in  case  of  the 
insolvency  of  the  vendee  in  the  mean  time,  the  vendor  may  stop  the 
goods  in  transitu-.  But,  as  between  the  vendor  and  third  persons, 
the  delivery  of  a  bill  of  lading  is  a  delivery  of  the  goods  themselves  ; 
if  not,  it  would  enable  the  consignee  to  make  the  bill  of  lading  an 
instrument  of  fraud.  The  assignee  of  a  bill  of  lading  trusts  to  the 
indorsement ;  the  instrument  is  in  its  nature  transferable ;  in  this 
respect  therefore  this  is  similar  to  the  case  of  a  bill  of  exchange.  If 
the  consignor  had  intended  to  restrain  the  negotiability  of  it,  he  should 
have  confined  the  delivery  of  the  goods  to  the  vendee  only :  but  he  has 


CHAP.  III.]  LICKBARHOW   V.    MASON.  361 

made  it  an  indorsable  instrument.  So  it  is  like  a  bill  of  exchange  ;  in 
which  case,  as  between  the  drawer  and  the  payee  the  consideration  may 
he  gone  into,  yet  it  cannot  between  the  drawer  and  an  indorsee;  and 
the  reason  is,  because  it  would  be  enabling  either  of  the  original  parties 
to  assist  in  a  fraud.  The  rule  is  founded  purely  on  principles  of  law, 
and  not  on  the  custom  of  merchants.  The  custom  of  merchants  only 
establishes  that  such  an  instrument  may  be  indorsed  ;  but  the  effect  of 
that  indorsement  is  a  question  of  law,  which  is.  that  as  between  the 
original  parties  the  consideration  maybe  inquired  into;  though  when 
third  persons  are  concerned,  it  cannot.  This  is  also  the  case  with 
respect  to  a  bill  of  hiding.  Though  the  bill  of  lading  in  this  case  was 
at  first  indorsed  in  blank,  it  is  precisely  the  same  as  if  it  had  been 
originally  indorsed  to  this  person  ;  for  when  it  was  filled  up  with  his  name, 
it  was  the  same  as  if  made  to  him  only.  Then  what  was  said  by  Lord 
Mansfield  in  the  ease  of  Wright  and  Campbell,  4  Burr.  20-10.  goes  the  full 
length  of  this  doctrine  :  "If  the  goods  be  bona  fide  sold  by  the  factor  at 
sea  (as  they  may  be  where  no  other  delivery  can  be  given),  it  will  be  good 
notwithstanding  the  Statute  21  Jac.  1,  c.  19.  The  vendee  shall  hold 
them  by  virtue  of  the  bill  of  sale,  though  no  actual  possession  is  deliv- 
ered :  and  the  owner  can  never  dispute  with  the  vendee,  because  the 
goods  were  sold  bona  fide  and  by  the  owner's  own  authority."  Now 
in  this  case  the  goods  were  transferred  by  the  authority  of  the  vendor, 
because  he  gave  the  vendee  a  power  to  transfer  them  ;  and  being  sold 
by  his  authority,  the  property  is  altered.  And  I  am  of  opinion  that 
this  right  of  the  assignee  could  not  be  divested  by  any  subsequent 
circumstances. 

Buller,  J.  This  case  has  been  very  fully,  very  elaborately,  and 
very  ably  argued,  both  now  and  in  the  last  term  :  and  though  the 
former  arguments  on  the  part  of  the  defendant  did  not  convince  my 
mind,  yet  they  staggered  me  so  much  that  I  wished  to  hear  a  second 
argument.  Before  I  consider  the  effect  of  the  several  authorities  which 
have  been  cited,  I  will  take  notice  of  one  circumstance  in  this  case 
which  is  peculiar  to  it ;  not  for  the  purpose  of  founding  ray  judgment 
upon  it,  but  because  I  would  not  have  it  supposed  in  any  future  case 
that  it  passed  unnoticed,  or  that  it  may  not  hereafter  have  any  effect 
which  it  ought  to  have.  In  this  case  it  is  stated  that  there  were  four 
bills  of  lading:  it  appears  by  the  books  treating  on  this  subject,  that 
according  to  the  common  course  of  merchants  there  are  only  three: 
one  of  which  is  delivered  to  the  captain  of  the  vessel,  another  is  trans- 
mitted to  the  consignee,  and  the  third  is  retained  by  the  consignor 
himself  as  a  testimony  against  the  captain  in  case  of  any  loose  dealing. 
Now,  if  it  be  at  present  the  established  course  among  merchants  to  have 
only  three  bills  of  lading,  the  circumstance  of  there  being  a  fourth  in 
this  case  might,  if  the  case  had  not  been  taken  out  of  the  hands  of  the 
jury  by  the  demurrer,  have  been  proper  for  their  consideration.  I  am 
aware  that  that  circumstance  appears  in  the  bill,  on  which  is  written. 
"  In  witness  the  master  hath  affirmed  to  four  bills  of  lading,  all  of  this 


362  LICKBAEEOW   V.   MASON.  [CHAP.  III. 

tenor  and  date."  But  we  all  know  that  it  is  not  the  practice  either  of 
persons  in  trade  or  in  the  profession  to  examine  very  minutely  the 
woids  of  an  instrument,  which  is  partly  printed  and  partly  written  ; 
and  if  we  only  look  at  the  substance  of  such  an  instrument,  this  may 
be  the  means  of  enabling  the  consignee  to  commit  a  fraud  on  an  inno- 
cent person.  Then  how  stood  the  consignee  in  this  case  ;  he  had  two 
of  the  bills  of  lading,  and  the  captain  must  have  a  third  ;  so  that  the 
assignee  could  not  imagine  that  the  consignor  had  it  in  his  power 
to  order  a  delivery  to  any  other  person.  But  I  mean  to  lay  this  cir- 
cumstance entirely  out  of  m}-  consideration  in  the  present  case,  which 
I  think  turns  wholly  on  the  general  question  :  and  I  make  the  question 
even  more  general  than  was  made  at  the  bar,  namely,  whether  a  bill  of 
lading  is  by  law  a  transfer  of  the  property?  This  question  has  been 
argued  upon  authorities  ;  and  before  I  take  notice  of  any  particular 
objections  which  have  been  made,  I  will  consider  those  authorities.  The 
principal  one  relied  on  by  the  defendants  is  that  of  Snee  and  Prescot, 
1  Atk.  245  ;  now,  sitting  in  a  court  of  law,  I  should  think  it  quite  sufficient 
to  say  that  that  was  a  determination  in  a  court  of  equity,  and  founded  on 
equitable  principles.  The  leading  maxim  in  that  court  is,  that  he  who 
seeks  equity  must  first  do  equity.  I  am  not  disposed  to  find  fault  with 
that  determination  as  a  case  in  equit}* ;  but  it  is  not  sufficient  to  decide 
such  a  question  as  that  now  before  us.  Lord  Hardwicke  has,  with  his 
usual  caution,  enumerated  every  circumstance  which  existed  in  the 
case  :  and  indeed  he  has  been  so  particular,  that  if  the  printed  note  of 
it  be  accurate,  which  I  doubt,  it  is  not  an  authority  for  an}'  case  which 
is  not  precisely  similar  to  it.  The  only  point  of  law  in  that  case  is 
upon  the  forms  of  the  bills  of  lading;  and  Lord  Hardwicke  thought 
there  was  a  distinction  between  bills  of  lading  indorsed  in  blank,  and 
those  indorsed  to  particular  persons  :  but  it  was  properly  admitted  at 
the  bar  that  that  distinction  cannot  now  be  supported.  Tims  the  mat- 
ter stood  till  within  these  thirty  years  ;  since  that  time  the  commercial 
law  of  this  country  has  taken  a  very  different  turn  from  what  it  did 
before.  We  find  in  Snee  and  Prescot  that  Lord  Hardwicke  himself 
was  proceeding  with  great  caution,  not  establishing  any  general  prin- 
ciple, but  decreeing  on  all  the  circumstances  of  the  case  put  together. 
Before  that  period  we  find  that  in  courts  of  law  all  the  evidence 
in  mercantile  cases  was  thrown  together:  they  were  left  generally  to 
a  jury,  and  they  produced  no  established  principle.  From  that  time  we 
all  know  the  great  study  has  been  to  find  some  certain  general  prin- 
ciples, which  shall  be  known  to  all  mankind,  not  only  to  rule  the 
particular  case  then  under  consideration,  but  to  serve  as  a  guide  for 
the  future.  Most  of  us  have  heard  these  principles  stated,  reasoned 
upon,  enlarged,  and  explained,  till  we  have  been  lost  in  admiration  at 
the  strength  and  stretch  of  the  human  understanding.  And  I  should 
be  vci\  sorry  to  find  myself  under  a  necessity  of  differing  from  any 
case  <>ii  this  subject  which  has  been  decided  by  Lord  Mansfield,  who 
ina\  be  truly  said  to  be  the  founder  of  the  commercial  law  of  this  coun- 


CHAP.  III.]  LICKBARROW   V.    MASON.  363 

try.     I  hope  to  show,  before  I  have  finished  my  judgment,  that  there 
has  been  no  inconsistency  in  any  of  lii.s  determinations;   but  if  there 
had,  if  I  eould  not  reconcile  an  opinion  which  he  had  delivered  at  Nisi 
lYius  with  his  judgment  in  this  court,  1  should  not  hesitate  to  adopt 
the  latter  in  preference  to  the  former :  and  it  is  but  just  to  say  that  no 
judge  ever  sat  here   more  ready  than   he   was   to  correct  an  opinion 
suddenly  given  at  Nisi  Prius.      First,  as  to  the  case  of  Wright  and 
Campbell,  that  was  a  very  solemn  opinion  delivered  in  this  court.     In 
my  opinion,  that  is  one  of  the  best  cases  that  we  have  in  the  law  on 
mercantile  subjects.     There  are  four  points  in  that  case,  which  Lord 
Mansfield  has  stated  so  extremely  clear  that  they  cannot  be  mistaken. 
The  first  is,  what  is  the  case  as  between  the  owner  of  the  goods  and 
the  factor ;  the  second,  as  between  the  consignor  and  the  assignee  of 
the  factor  with  notice  ;   thirdly,  as  between  the  same  parties  without 
notice  ;  and  fourthly,  as  to  the  nature  of  a  bill  of  sale  of  goods  at  sea 
.  in  general.     It  is  to  be  recollected  that  the  case  of  Wright  and  Camp- 
bell was  decided  by  the  judge  at  Nisi  Prius  upon  the  ground  that  the 
bill  of  lading  transferred  the  whole  property  at  law  ;  and  when  it  came 
before  this  court  on  a  motion  for  a  new  trial,  Lord  Mansfield  confirmed 
that  opinion  ;  but  a  new  trial  was  granted  on  a  suspicion  of  fraud  : 
therefore  it  is  fair  to  infer,  that  if  there  had  been  no  fraud,  the  delivery 
of  the  bill  of  lading  would  have  been  final.     If  there  be  fraud,  it  is  the 
same  as  if  the  question  were  tried  between  the  consignor  and  the  origi- 
nal consignee.     According  to  a  note  of  Wright  and  Campbell,  which  I 
took  in  court.  Lord  Mansfield  said,  that  since  the  case  in  Lord  Ray- 
mond (Evans  v.  Marlett,  1  Lord  Ray.  271),  it  had  always  been  held  that 
the  delivery  of  a  bill  of  lading  transferred  the  property  at  law;   if  so, 
every  exception  to  that  rule  arises  from  equitable  considerations  which 
have  been  adopted  in  courts  of  law.     The  next  case  is  that  of  Savig- 
nac  and  Cuff,  2  T.  R.  66,  the  note  of  which  is  too  loose  to  be  depended 
upon  :  but   there    is  a  circumstance  in  that  case,  which  might  afford 
ample  ground  for  the  decision  ;  for  I  cannot  suppose  that  Lord  Mans- 
field had  forgotten  the  doctrine  which  he  laid  down  in  this  court  in 
Wright  and   Campbell.      There  he   observed   very   minutely  on   what 
did  not  appear  at  the  trial,  that  no  letters  were  produced,  and  that 
no  price  was  fixed  for  the  goods  :   but  in  Savignac  and  Cuff,  the  plain- 
tiff had  not  only  the  bills  of  lading  and  the  invoice,  but  he  had  also 
the  letters  of  advice,  from  which  the  real  transaction  must  have  ap- 
peared ;    and  if  it  appeared  to  him  that  Selvetti  had  not  been  paid 
for  the  goods,  that  might  have  been  a  ground  for  the  determination. 
The  case  of  Hunter  and  Beal  does  not  come  up  to  the  point  now  in  dis- 
pute; it  only  determines  what  is  admitted,  that,  as  between  the  vendor 
and   vendee,    the   property    is  not  altered    till    delivery   of  the   goods. 
With  respect  to  the  case  of  Stokes  and  La  Riviere.  2  T  R.  75,  perhaps 
there  may  be  some  doubt  about  the  facts  of  it :   however,  it  was  deter- 
mined upon  a  different  ground  ;  for  the  goods  were  in  the  hands  of  an 
agent  for  both  parties :  that  case  therefore  does  not  impeach  the  doc- 


364  LICKBARROW   V.    MASON.  [dlAP.  III. 

trine  laid  down  in  Wright  and  Campbell.  It  has  been  argued  at  the 
bar,  that  it  is  impossible  for  the  holder  of  a  bill  of  lading  to  bring  an 
action  on  it  against  the  consignor :  perhaps  that  argument  is  well 
founded :  no  special  action  on  the  bill  of  lading  has  ever  been  brought ; 
for  if  the  bill  of  lading  transfer  the  property,  an  action  of  trover  against 
the  captain  for  non-delivery,  or  against  any  other  person  who  seizes  the 
goods,  is  the  proper  form  of  action.  If  an  action  be  brought  b}'  a 
vendor  against  a  vendee,  between  whom  a  bill  of  lading  has  passed, 
the  proper  action  is  for  goods  sold  and  delivered.  Then  it  has  been 
said  that  no  case  has  yet  decided  that,a  bill  of  lading  does  transfer  the 
property-:  but  in  answer  to  that  it  is  to  be  observed,  that  all  the  cases  upon 
the  subject,  Evans  v.  Martlett,  Wright  y.  Campbell,  and  Caldwell  v.  Ball; 
1  T.  R.  205,  and  the  universal  understanding  of  mankind,  preclude  that 
question.  The  cases  between  the  consignor  and  consignee  have  been 
founded  merely  on  principles  of  equity,  and  have  followed  up  the  principle 
of  Snee  and  Prescot ;  for  if  a  man  has  bought  goods,  and  has  not  paid 
for  them,  and  cannot  pay  for  them,  it  is  not  equitable  that  he  should 
prevent  the  consignor  from  getting  his  goods  back  again,  if  he  can  do  it 
before  they  are  in  fact  delivered.  There  is  no  weight  in  the  argument 
of  hardship  on  the  vendor :  at  any  rate  that  is  a  bad  argument  in 
a  court  of  law  ;  but  in  fact  there  is  no  hardship  on  him,  because  he  has 
parted  with  the  legal  title  to  the  consignee.  An  argument  was  used 
with  respect  to  the  difficulty  of  determining  at  what  time  a  bill  of  lading 
shall  be  said  to  transfer  the  property,  especially  in  a  case  where  the 
goods  were  never  sent  out  of  the  merchant's  warehouse  at  all :  the 
answer  is,  that  under  those  circumstances  a  bill  of  lading  could  not 
possibly  exist,  if  the  transaction  were  a  fair  one  ;  for  a  bill  of  lading  is 
an  acknowledgment  by  the  captain,  of  having  received  the  goods  on 
board  his  ship  :  therefore  it  would  be  a  fraud  in  the  captain  to  sign  such 
a  bill  of  lading,  if  he  had  not  received  goods  on  board;  and  the  con- 
signee would  be  entitled  to  his  action  against  the  captain  for  the  fraud. 
As  the  plaintiff  in  this  case  has  paid  a  valuable  consideration  for  the 
goods,  and  there  is  no  color  for  imputing  fraud  or  notice  to  him,  I  am 
of  opinion  that  he  is  entitled  to  the  judgment  of  the  court. 

Judgment  for  the  plaintiff} 

The  defendants  in  the  original  action,  having  brought  a  writ  of  error 
in  the  Exchequer  Chamber,  after  two  arguments,  the  following  judg- 
ment of  that  court  was  there  delivered  by 

Lord  Loughborough.  This  case  comes  before  the  court  on  a 
demurrer  to  the  evidence;  the  general  question  therefore  is,  AVhcther 
the  facts  offered  in  evidence  by  the  plaintiffs  in  the  action  are  sufficient 
to  warrant  a  verdict  in   their  favor?'2  .  .  . 

The  defendants,  in  this  case,  are  not  stake-holders,  but  they  are  in 

effect  the  same  as  Turings,  and  the  possession  they  have  got  is  the  pos- 

-ion  of  Turings.     The  plaintiffs  claim  under  Freeman,  but  though 

1  Grose,  J  .  deliverefl  a  brief  concurring  opinion. 
Lord  Loughborough  here  stated  the  farts  of  the  case. 


CHAP.  III.]  LICKBARROW    V.    MASON.  365 

they  derive  a  title  under  him  they  do  not  represent  him,  so  as  to 
be  answerable  for  his  engagements,  nor  are  they  affected  by  any  notice 
of  those  cireumstances  which  would  bar  the  claim  of  him  or  of  his 
assignees.  If  they  have  acquired  a  legal  right  they  have  acquired  it 
honestly,  and  if  they  have  trusted  to  a  bad  title  they  are  innocent  suffer- 
ers. The  question  then  is,  Whether  the  plaintiffs  have  a  superior  legal 
title  to  that  right  which  on  principles  of  natural  justice,  the  original 
holder  of  goods  not  paid  for  has  to  maintain  that  possession  of  them 
which  he  actually  holds  at  the  time  of  the  demand? 

The  argument  on  the  part  of  the  plaintiffs  asserts  that  the  indorsement 
of  the  bill  of  lading  by  the  Turings  is  an  assignment  of  the  property  in 
the  goods  to  Freeman,  in  the  same  manner  as  the  indorsement  of  a  bill 
of  exchange  is  an  assignment  of  the  debt.  That  Freeman  could  assign 
over  that  property,  and  that  by  delivery  of  the  bill  of  lading  to  the 
plaintiffs  for  a  valuable  consideration,  they  have  a  just  right  to  the  prop- 
erty conveyed  by  it,  not  affected  by  any  claim  of  the  Turings,  of  which 
they  had  no  notice.  On  the  part  of  the  defendant  it  is  argued,  that  the 
bill  of  lading  is  not  in  its  nature  a  negotiable  instrument ;  that  it  more 
resembles  a  chose  in  action ;  that  the  indorsement  of  it  is  not  an 
assignment  that  conveys  any  interest,  but  a  mere  authority  to  the  con- 
signee to  receive  the  goods  mentioned  in  the  bill ;  and  therefore  it 
cannot  be  made  a  security  by  the  consignee  for  money  advanced  to 
him  ;  but  the  person  who  accepted  it  must  stand  in  the  place  of  the 
consignee,  and  cannot  gain  a  better  title  than  he  had  to  give.  As  these 
propositions  on  either  side  seem  to  be  stated  too  loosely,  and  as  it  is  of 
great  importance  that  the  nature  of  an  instrument  so  frequent  in  com- 
merce as  a  bill  of  lading,  should  be  clearly  defined,  I  think  it  necessary 
to  state  my  ideas  of  its  nature  and  effect : 

A  bill  of  lading  is  the  written  evidence  of  a  contract  for  the  carriage 
and  delivery  of  goods  sent  by  sea  for  a  certain  freight.  The  contract 
in  legal  language  is  a  contract  of  bailment.  2  Lord  Raym.  912.  In 
the  usual  form  of  the  contract  the  undertaking  is  to  deliver  to  the  order 
or  assigns  of  the  shipper.  By  the  delivery  on  board  the  ship-master 
acquires  a  special  property  to  support  that  possession  which  he  holds 
in  the  right  of  another,  and  to  enable  him  to  perform  his  undertaking. 
The  general  property  remains  with  the  shipper  of  the  goods  until  he  has 
disposed  of  it  by  some  act  sufficient  in  law  to  transfer  property.  The 
indorsement  of  the  bill  of  lading  is  simply  a  direction  of  the  delivery  of 
the  goods.  When  this  indorsement  is  in  blank  the  holder  of  the  bill  of 
lading  may  receive  the  goods,  and  his  receipt  will  discharge  the  ship- 
master ;  but  the  holder  of  the  bill,  if  it  came  into  his  hands  casually, 
without  any  just  title,  can  acquire  no  property  in  the  goods.  A  special 
indorsement  defines  the  person  appointed  to  receive  the  goods  ;  his 
receipt  or  order  would,  I  conceive,  be  a  sufficient  discharge  to  the  ship- 
master ;  and  in  this  respect  I  hold  the  bill  of  lading  to  be  assignable. 
But  what  is  it  that  the  indorsement  of  the  bill  of  lading  assigns  to  the 
holder  or  the  indorsee?  a  right  to  receive  the  goods  and  to  discharge 


366  LICKBARROW   V.    MASON.  [CHAP.  III. 

the  ship-master,  as  having  performed  his  undertaking.     If  any  further 
effect  be  allowed  to  it,  the  possession  of  a  bill  of  lading  would  have 
greater  force  than  the  actual  possession  of  the  goods.     Possession  of 
goods  is  prima  facie  evidence  of  title  ;   but  that  possession  may  be 
precarious,  as  of  a  deposit ;  it  may  be  criminal,  as  of  a  thing  stolen  ;  it 
mav  be  qualified,  as  of  things  in  the  custody  of  a  servant,  carrier  or  a 
factor.     Mere  possession  without  a  just  title  gives  no  property ;  and 
the  person  to  whom  such   possession  is  transferred  by  delivery,  must 
take  his  hazard  of  the  title  of  his  author.     The  indorsement  of  a  bill  of 
lading  differs  from  the  assignment  of  a  chose  in  action,  that  is  to  say, 
of  an  obligation,  as  much  as  debts  differ  from  effects.     Goods  in  pawn, 
goods  bought  before  delivery,  goods  in  a  warehouse,  or  on  shipboard, 
may  all  be  assigned.     The  order  to  deliver  is  an  assignment  of  the  thing 
itself,  which  ought  to  be  delivered  on  demand,  and  the  right  to  sue  if 
the  demand  is  refused,  is  attached  to  the  thing.     The  case  in  1   Lord 
Raym.  271,  was  well  determined  on  the  principal  point,  that  the  con- 
signee might  maintain  an  action  for  the  goods,  because  he  had  either 
a  special  property  in  them,  or  a  right  of  action  on  the  contract ;  and  I 
assent  to  the  dictum,  that  he  might  assign  over  his  right.     But  the 
question  remains,  What  right  passes  by  the  first  indorsement,  or  by  the 
assignment  of  it?      An  assignment  of  goods  in   pawn,  or  of  goods 
bought  but  not  delivered,  cannot  transmit  a  right  to  take  the  one  with- 
out redemption  and  the  other  without  the  payment  of  the  price.     As  the 
indorsement  of  a  bill  of  lading  is  an  assignment  of  the  goods  themselves, 
it  differs  essentially  from  the  indorsement  of  a  bill  of  exchange  ;  which 
is  the  assignment  of  a  debt  due  to  the  payee,  and  which,  by  the  cus- 
tom of  trade,  passes  the  whole  interest  in  the  debt  so  completely,  that 
the  holder  of  the  bill   for  a  valuable  consideration,  without  notice, 
is  not  affected  even  by  the  crime  of  the  person  from  whom  he  received 
the  bill. 

Bills  of  lading  differ  essentially  from  bills  of  exchange  in  another 

respect. 

Bills  of  exchange  can  only  be  used  for  one  given  purpose,  namely, 
to  extend  credit  by  a  speedy  transfer  of  the  debt,  which  one  person 
owes  another,  to  a  third  person.     Bills  of  lading  may  be  assigned  for  as 
many  different  purposes  as  goods  may  be  delivered.     They  may  be  in- 
dorsed to  the  true  owner  of  the  goods  by  the  freighter,  who  acts  merely 
as  his  servant.     They  may  be  indorsed  to  a  factor  to  sell  for  the  owner. 
They  may  be  indorsed  by  the  seller  of  the  goods  to  the  buyer.     They 
are  not  drawn  in  any  certain  form.    They  sometimes  do,  and  sometimes 
do  not  express  on   whose  account  and  risk  the  goods  are  shipped. 
They  often,  especially  in  time  of  war,  express  a  false  account  and  risk. 
They  seldom,  if  ever,  bear  upon  the  face  of  them,  any  indication  of  the 
purpose  of  the  indorsement.     To  such  an  instrument,  so  various  in  its 
use,  it  seems  impossible  to  apply  the  same  rules  as  govern  the  indorse- 
ment of  bills  of  exchange.     The  silence  of  all  authors  treating  of  com- 
mercial law  is  a  strong  argument  that  no  general  usage  has  made  them 


CHAP.  III.]  LICKBARROW   V.    MASON.  367 

negotiable  as  bills.  Some  evidence  appears  to  have  been  given  in  other 
cases,  that  the  received  opinion  of  merchants  was  against  their  being 
so  negotiable.  And  unless  there  was  a  clear,  established  general 
usage  to  place  the  assignment  of  a  bill  of  lading  upon  the  same  footing 
as  the  indorsement  of  a  bill  of  exchange,  that  country  which  should 
first  adopt  such  a  law,  would  lose  its  credit  writh  the  rest  of  the  commer- 
cial world.  For  the  immediate  consequence  would  be,  to  prefer  the 
interest  of  the  resident  factors  and  their  creditors,  to  the  fair  claim  of 
the  foreign  consignor.  It  would  not  be  much  less  pernicious  to  its 
internal  commerce  ;  for  every  case  of  this  nature  is  founded  in  a  breach 
of  confidence,  always  attended  with  a  suspicion  of  collusion,  and  leads 
to  a  dangerous  and  false  credit,  at  the  hazard  and  expense  of  the  fair 
trader.  If  bills  of  lading  are  not  negotiable  as  bills  of  exchange,  and 
yet  are  assignable,  what  is  the  consequence?  That  the  assignee  by 
indorsement  must  inquire  under  what  title  the  bills  have  come  to  the 
hands  of  the  person  from  whom  he  takes  them.  Is  this  more  difficult 
than  to  inquire  into  the  title  by  which  goods  are  sold  or  assigned?  In 
the  case  of  Hartop  v.  Hoare,  2  Stra.  1187;  1  Wils.  8,  jewels  deposited 
with  a  goldsmith  were  pawned  b}'  him  at  a  banker's.  Was  there  any 
imputation,  even  of  neglect,  in  a  banker  trusting  to  the  apparent  pos- 
session of  jewels  by  a  goldsmith?  Yet  they  were  the  property  of 
another,  and  the  banker  suffered  the  loss.  It  is  received  law,  that  a 
factor  may  sell,  but  cannot  pawn  the  goods  of  his  consignor.  Patterson 
v.  Tash,  2  Str.  1178.  The  person  therefore  who  took  an  assignment  of 
goods  from  a  factor  in  security,  could  not  retain  them  against  the  claim 
of  the  consignor ;  and  yet  in  this  case,  the  factor  might  have  sold  them 
and  embezzled  the  money.  It  has  been  argued,  that  it  is  necessary  in 
commerce  to  raise  money  on  goods  at  sea,  and  this  can  only  be  done  by 
assigning  the  bills  of  lading.  Is  it  then  nothing  that  an  assignee  of  a 
bill  of  lading  gains  by  the  indorsement?  He  has  all  the  right  the  in- 
dorser  could  give  him  ;  a  title  to  the  possession  of  the  goods  when  they 
arrive.  He  has  a  safe  security,  if  he  has  dealt  with  an  honest  man. 
And  it  seems  as  if  it  could  be  of  little  utility  to  trade,  to  extend 
credit  by  affording  a  facility  to  raise  money  by  unfair  dealing.  Money 
will  be  raised  on  goods  at  sea,  though  bills  of  lading  should  not  be 
negotiable,  in  every  case  where  there  is  a  fair  ground  of  credit  •  but  a 
man  of  doubtful  character  will  not  find  it  so  easy  to  raise  money  at  the 
risk  of  others. 

The  conclusions  which  follow  from  this  reasoning,  if  it  be  just.  are. 
1st.  That  an  order  to  direct  the  delivery  of  goods  indorsed  on  a  bill  of 
lading,  is  not  equivalent  nor  even  analogous  to  the  assignment  of  an 
order  to  pay  money,  by  the  indorsement  of  a  bill  of  exchange.  2dlv. 
That  the  negotiability  of  bills  and  promissory  notes  is  founded  on  the 
custom  of  merchants,  and  positive  law  ;  but  as  there  is  no  positive  law, 
neither  can  any  custom  of  merchants  apply  to  such  an  instrument  as  a 
bill  of  lading.  3dly,  That  it  is  therefore  not  negotiable  as  a  bill,  but 
assignable  ;  and  passes  such  right,  and  no  better  as  the  person  assigning 
had  in  it. 


368  LICKBARROW    V.    MASON.  [CHAP.  III. 

This  last  proposition  I  confirm  by  the  consideration,  that  actual 
delivery  of  the  goods  does  not  of  itself  transfer  an  absolute  ownership 
in  them,  without  a  title  of  property  ;  and  that  the  indorsement  of  a  bill 
of  lading,  as  it  cannot  in  any  case  transfer  more  right  than  the  actual 
delivery,  cannot  in  every  case  pass  the  property ;  and  I  therefore  infer 
that  the  mere  indorsement  can  in  no  case  convey  an  absolute  property. 
It  may  however  be  said,  that  admitting  an  indorsement  of  a  bill  of 
hiding  does  uot  in  all  cases  import  a  transfer  of  the  property  of  the 
goods  consigned,  yet  where  the  goods  when  delivered  would  belong  to 
the  indorsee  of  the  bill,  and  the  indorsement  accompanies  a  title  of 
property,  it  ought  in  law  to  bind  the  consignor,  at  least  with  respect 
to  the  interest  of  third  parties.  This  argument  has,  I  confess,  a  very 
specious  appearance.  The  whole  difficulty  of  the  case  rests  upon  it ; 
and  I  am  not  surprised  at  the  impression  it  has  made,  having  long  felt 
the  force  of  it  myself.  A  fair  trader,  it  is  said,  is  deceived  by  the 
misplaced  confidence  of  the  consignor.  The  purchaser  sees  a  title  to 
the  delivery  ot  the  goods  placed  in  the  hands  of  a  man  who  offers  them 
to  sale.  Goods  not  arrived  are  every  day  sold  without  an}'  suspicion  of 
distress,  on  speculations  of  the  fairest  nature.  The  purchaser  places 
no  credit  in  the  consignee,  but  in  the  indorsement  produced  to  him, 
which  is  the  act  of  the  consignor.  The  first  consideration  which  affects 
this  argument  is,  that  it  proves  too  much,  and  is  inconsistent  with  the 
admission.  But  let  us  examine  what  the  legal  right  of  the  vendor  is, 
and  whether,  with  respect  to  him,  the  assignee  of  a  bill  of  lading  stands 
on  a  better  ground  than  the  consignee  from  whom  he  received  it.  I 
state  it  to  be  a  clear  proposition,  that  the  vendor  of  goods  not  paid  for, 
ma}-  retain  the  possession  against  the  vendee  ;  not  by  aid  of  any  equit}', 
but  on  grounds  of  law.  Our  oldest  books  consider  the  payment  of  the 
price  (day  not  being  given)  as  a  condition  precedent  implied  in  the 
contract  of  sale  ;  and  that  the  vendee  cannot  take  the  goods,  nor  sue 
for  them  without  tender  of  the  price.  If  day  had  been  given  for  pay- 
ment, and  the  vendee  could  support  an  action  of  trover  against  the 
vendor,  the  price  unpaid  must  be  deducted  from  the  damages,  in 
the  same  manner  as  if  he  had  brought  an  action  on  the  contract,  for  the 
non-delivery.  Snee  v.  Prescot,  1  Atk.  245.  The  sale  is  not  executed 
before  delivery  ;  and  in  the  simplicity  of  former  times,  a  delivery  into 
the  actual  possession  of  the  vendee  or  his  servant  was  always  sup- 
posed. In  the  variety  and  extent  of  dealing  which  the  increase  of 
commerce  has  introduced,  the  delivery  may  be  presumed  from  circum- 
stances, so  as  to  vest  a  property  in  the  vendee.  A  destination  of  the 
goods  by  the  vendor  to  the  use  of  the  vendee;  the  marking  them,  or 
making  them  up  to  be  delivered  ;  the  removing  them  for  the  purpose  of 
being  delivered,  may  all  entitle  the  vendee  to  act  as  owner,  to  assign, 
and  to  maintain  an  action  against  a  third  person,  into  whose  hands 
they  have  come.  But  the  title  of  the  vendor  is  never  entirely  divested, 
till  the  goods  have  come  into  the  possession  of  the  vendee.  He  has 
therefore  a  complete  right,  for  just  cause,  to  retract  the  intended  deliv- 


CHAP.  III.]  LICKBARROW   V.    MASON.  309 

cry,  :lik1  to  stop  the  goods  in  transitu.  The  cases  determined  in  our 
courts  of  law  have  confirmed  this  doctrine,  and  the  same  law  obtains 
in  other  countries. 

In  an  action  tried  before  me  at  Guildhall,  after  the  last  Trinity  Term, 
it  appeared  in  evidence  that  one  Bowering  had  bought  a  cask  of  indigo 
of  Verrulez  &  Co.,  at  Amsterdam,  which  was  sent  from  the  warehouse 
of  the  seller,  and  shipped  on  board  a  vessel  commanded  by  one  Tulloh, 
by  the  appointment  of  Bowering.  The  bills  of  lading  were  made  out, 
and  signed  by  Tulloh,  to  deliver  to  Bowering  or  order,  who  immediately 
indorsed  one  of  them  to  his  correspondent  in  London,  and  sent  it  by 
the  post.  Verrulez,  having  information  of  Bowering's  insolvency  before 
the  ship  sailed  from  the  Texel,  summoned  Tulloh  the  ship-master 
before  the  court  at  Amsterdam,  who  ordered  him  to  sign  other  bills 
of  hiding,  to  the  order  of  Verrulez.  Upon  the  arrival  of  the  ship  in 
London,  the  ship-master  delivered  the  goods,  according  to  the  last  bills, 
to  the  order  of  Verrulez.  This  case,  as  to  the  practice  of  merchants, 
deserves  particular  attention  ;  for  the  judges  of  the  court  at  Amsterdam 
are  merchants  of  the  most  extensive  dealings,  and  the}-  are  assisted  by 
very  eminent  lawyers.  The  cases  in  our  law,  which  I  have  taken  some 
pains  to  collect  and  examine, 'are  very  clear  upon  this  point.  Snee  v. 
Prescot,  though  in  a  court  of  equity,  is  professedly  determined  on  legal 
grounds  by  Lord  llardwicke,  who  was  well  versed  in  the  principles  of 
law  ;  and  it  is  an  authority,  not  only  in  support  of  the  right  of  the 
owner  unpaid,  to  retain  against  the  consignee,  but  against  those  claiming 
under  the  consignee  by  assignment  for  valuable  consideration,  and  with- 
out notice.  But  the  case  of  Fearon  v.  Bowers,  1  H.  Bl.  364,  n.,  tried  before 
Lord  Chief  Justice  Lee,  is  a  case  at  law,  and  it  is  to  the  same  effect  as 
Snee  v.  Prescot.  So  also  is  the  case  of  the  Assignees  of  Burghall  v. 
Howard,  1  II.  Bl.  365,  n.,  before  Lord  Mansfield.  The  right  of  the  con- 
signor to  stop  the  goods  is  here  considered  as  a  legal  right.  It  will  make 
no  difference  in  the  case,  whether  the  right  is  considered  as  springing 
from  the  original  property  not  yet  transferred  by  delivery,  or  as  a  right 
to  retain  the  things  as  a  pledge  for  the  price  unpaid.  In  all  the  cases  cited 
in  the  course  of  the  argument,  the  right  of  the  consignor  to  stop  the 
goods  is  admitted  as  against  the  consignee.  But  it  is  contended,  that 
the  right  ceases  as  against  a  person  claiming  under  the  consignee  for  a 
valuable  consideration,  and  without  notice  that  the  price  is  unpaid. 
To  support  this  position  it  is  necessary  to  maintain  that  the  right  of 
the  consignor  is  not  a  perfect  legal  right  in  the  thing  itself,  but  that  it 
is  only  founded  upon  a  personal  exception  to  the  consignee,  which 
would  preclude  his  demand  as  contrary  to  good  faith  and  unconscion- 
able. If  the  consignor  had  no  legal  title,  the  question  between  him 
and  the  bona  fide  purchaser  from  the  consignee  would  turn  on  verv 
nice  considerations  of  equity.  But  a  legal  lien,  as  well  as  a  right  of 
property,  precludes  these  considerations  ;  and  the  admitted  right  of  the 
consignor  to  stop  the  goods  in  transitu  as  against  the  consignee,  can 
only  rest  upon  his  original  title  as  owner,  not  divested,  or  upon  a  legal 

24 


370  LICKBARROW   V.    MASON.  [CHAP.  III. 

title  to  hold  the  possession  of  the  goods  till  the  price  is  paid,  as  a 
pledge  for  tbe  price.  It  has  been  asserted  in  the  course  of  the  argu- 
ment, that  the  right  of  the  consignor  lias  by  judicial  determinations 
been  treated  as  a  mere  equitable  claim  in  cases  between  him  and  the 
consignee.  To  examine  the  force  of  this  assertion,  it  is  necessary  to 
take  a  review  of  the  several  determinations: 

The  first  is  the  case  of  Wright  v.  Campbell,  4  Burr.  2046,  on  which 
the  chief  stress  is  laid.  The  first  observation  that  occurs  upon  that 
case  is,  that  nothing  was  determined  by  it.  A  case  was  reserved  by 
the  judge  at  Nisi  Prius,  on  the  argument  of  which  the  court  thought 
the  facts  imperfectly  stated,  and  directed  a  new  trial.  That  case  can- 
not therefore  be  urged  as  a  decision  upon  the  point.  But  it  is  quoted 
as  containing,  in  the  report  of  it,  an  opinion  of  Lord  Mansfield,  that  the 
right  of  the  consignor  to  stop  the  goods,  cannot  be  set  up  against 
a  third  person  claiming  under  an  indorsement  for  value  and  without 
notice.  The  authority  of  such  an  opinion,  though  no  decision  had  fol- 
lowed upon  it,  would  deservedly  be  very  great,  from  the  high  respect 
due  to  the  experience  and  wisdom  of  so  great  a  judge.  But  I  am  not 
able  to  discover  that  his  opinion  was  delivered  to  that  extent,  and  I 
assent  to  the  opinion  as  it  was  delivered,  and  very  correctly  applied  to 
the  case  then  in  question.  Lord  Mansfield  is  there  speaking  of  the 
consignment  of  goods  to  a  factor  to  sell  for  the  owner ;  and  he  very 
truly  observes:  1st,  That  as  against  the  factor,  the  owner  may  retain 
the  goods  ;  2dly,  That  a  person  into  whose  hands  the  factor  has  passed 
the  consignment  with  notice,  is  exactly  in  the  same  situation  with  the 
factor  himself;  3dly,  That  a  bona  fide  purchaser  from  the  factor  shall 
have  a  right  to  the  delivery  of  the  goods,  because  they  were  sold  bona 
fide,  and  by  the  owner's  own  authority.  If  the  owner  of  the  goods 
intrust  another  to  sell  them  for  him,  and  to  receive  the  price,  there  is 
no  doubt  but  that  he  has  bound  himself  to  deliver  the  goods  to  the 
purchaser;  and  that  would  hold  equally,  if  the  goods  had  never  been 
removed  from  his  warehouse.  The  question  on  the  right  of  the  con- 
signor to  stop  and  retain  the  goods,  can  never  occur  where  the  factor 
has  acted  strictly  according  to  the  orders  of  his  principal,  and  where, 
consequently,  he  has  bound  him  by  his  contract.  There  would  be  no 
possible  ground  for  argument  in  the  case  now  before  the  court,  if  the 
plaintiffs  in  the  action  could  maintain  that  Turings  &  Co.  had  sold 
to  them  by  the  intervention  of  Freeman,  and  were  therefore  bound  ex 
contractu  to  deliver  the  goods.  Lord  Mansfield's  opinion  upon  the 
direct  question  of  the  right  of  the  consignor  to  stop  the  goods  against 
a  third  party,  who  has  obtained  an  indorsement  of  the  bill  of  lading,  is 
quoted  in  favor  of  the  consignor,  as  delivered  in  two  cases  at  Nisi 
Prius  ■  Savignac  v.  Cuff,  2  Term  Rep.  B.  R.  60,  in  1778,  and  Stokes 
v.  La  Riviere,  2  Term  Rep.  B.  R.  7">.  in  1785.  Observations  are  made 
on  these  crises,  that  they  were  governed  by  particular  circumstances; 
and  undoubtedly  when  there  is  not  an  accurate  and  agreed  state  of 
them,  no  great  stress  can  be  laid  on  the  authority.     The  case  of  Cald- 


CHAP.  III.]  LICKBAEROW   V.    MASON.  371. 

well  v.  Ball,  1  Term  Rep.  B.  R.  205,  is  improperly  quoted  on  the  part 
of  the  plaintiff's  in  the  aetion,  because  the  question  there  was  on  the 
priority  of  consignments,  and  the  right  of  the  consignor  did  not  come 
under  consideration.  The  case  of  Ilibbert  v.  Carter,  1  Term  Rep.  B.  R. 
745,  was  also  cited  on  the  same  side  not  as  having  decided  any  ques- 
tion upon  the  consignor's  right  to  stop  the  goods,  but  as  establishing  a 
position,  that  by  the  indorsement  of  the  bill  of  lading,  the  property  was 
so  completely  transferred  to  the  indorsee,  that  the  shipper  of  the  goods! 
had  no  longer  an  insurable  interest  in  them.  The  bill  of  lading  in  that 
case  had  been  indorsed  to  a  creditor  of  the  shipper;  and  undoubtedly 
if  the  fact  had  been  as  it  was  at  first  supposed,  that  the  cargo  had  been 
accepted  in  payment  of  the  debt,  the  conclusion  would  have  been  just  , 
for  the  property  of  the  goods,  and  the  risk,  would  have  completely 
passed  from  the  shipper  to  the  indorsee  ;  it  would  have  amounted  to  a 
sale  executed  for  a  consideration  paid.  But  it  is  not  to  be  inferred 
from  that  case,  that  an  indorsement  of  a  bill  of  lading,  the  goods 
remaining  at  the  risk  of  the  shipper,  transfers  the  property  so  that  a 
policy  of  insurance  upon  them  in  his  name  would  be  void.  The  greater 
part  of  the  consignments  from  the  West  Indies,  and  all  countries  where 
the  balance  of  trade  is  in  favor  of  England,  are  made  to  a  creditor  of 
the  shipper ;  but  they  are  no  discharge  of  the  debt  by  indorsement 
of  the  bill  of  lading;  the  expense  of  insurance,  freight,  duties,  are  all 
charged  to  the  shipper,  and  the  net  proceeds  alone  can  be  applied  to 
the  discharge  of  his  debt.  That  case  therefore  has  no  application 
to  the  present  question.  And  from  all  the  cases  that  have  been  col- 
lected, it  does  not  appear  that  there  has  ever  been  a  decision  against 
the  legal  right  of  the  consignor  to  stop  the  goods  in  transitu,  before 
the  case  now  brought  before  this  court.  When  a  point  in  law  which  is 
of  general  concern  in  the  daily  business  of  the  world  is  directly  decided, 
the  event  of  it  fixes  the  public  attention,  directs  the  opinion,  and  regu- 
lates the  practice  of  those  who  are  interested.  But  where  no  such 
decision  has  in  fact  occurred,  it  is  impossible  to  fix  any  standard  of 
opinion,  upon  loose  reports  of  incidental  arguments.  The  rule  there- 
fore which  the  court  is  to  lay  down  in  this  case  will  have  the  effect, 
hot  to  disturb,  but  to  settle  the  notions  of  the  commercial  part,  of  this 
country,  on  a  point  of  very  great  importance,  as  it  regards  the  security 
and  good  faith  of  their  transactions.  For  these  reasons,  we  think  the 
judgment  of  the  Court  of  King's  Bench  ought  to  be  reversed. 

The  judgment  of  the  Exchequer  Chamber  was  reversed  in  the  House 
of  Lords,  and  a  venire  facias  de  novo  directed  to  be  awarded.  The 
ground  of  the  reversal  was  that  the  demurrer  to  evidence  appeared  to 
be  informal  on  the  record  MS.  On  the  principal  question  the  following 
opinion  was  delivered  before  the  House  by  — 

Buller,  J.  Before  I  consider  what  is  the  law  arising  on  this  case  [ 
shall  endeavor  to  ascertain  what  the  case  itself  is.  It  appears  that  the 
two  bills  of  lading  were  indorsed  in  blank  by  Turing,  and  sent  so  in- 


372  LICKBARROW   V.    MASON.  [CHAP.  III. 

dorsecl  in  the  same  state  by  Freeman  to  the  plaintiffs,  in  order  that  the 
goods  might,  on  their  arrival  at  Liverpool,  be  taken  possession  of  and 
sold  by  the  plaintiffs  on  Freeman's  account.  I  shall  first  consider  what 
is  the  effect  of  a  blank  indorsement ;  and  secondly,  I  will  examine 
whether  the  words,  w'to  be  sold  by  the  plaintiffs  on  Freeman's  account," 
make  any  difference  in  the  case.  As  to  the  first,  I  am  of  opinion  that 
a  blank  indorsement  has  precisely  the  same  effect  that  an  indorsement 
to  deliver  to  the  plaintiffs  would  have.  In  the  case  of  bills  of  ex- 
change the  effect  of  a  blank  indorsement  is  too  universally  known  to 
be  doubted  ;  and  therefore  on  that  head  I  shall  only  mention  the  case 
of  Russel  v.  Langstaffe,  Douglas,  496,  where  a  man  indorsed  his  name 
on  copper-plate  checks,  made  in  the  form  of  promissory  notes,  but  in 
blank,  i.  e.,  without  any  sum,  date,  or  time  of  payment ;  and  the  court 
held,  that  the  indorsement  on  a  blank  note  is  a  letter  of  credit  for  an 
indefinite  sum  ;  and  the  defendant  was  liable  for  the  sum  afterwards 
inserted  in  the  note,  whatever  it  might  be.  In  the  case  of  bills  of  lad- 
ing, it  has  been  admitted  at  your  Lordship's  bar,  and  was  so  in  the 
Court  of  King's  Bench,  that  a  blank  indorsement  has  the  same  effect 
as  an  indorsement  filled  up  to  deliver  to  a  particular  person  by  name. 
In  the  case  of  Snee  v.  Prescot,  Lord  Hardwicke  thought  that  there 
was  a  distinction  between  a  bill  of  lading  indorsed  in  blank,  and  one 
that  was  filled  up,  and  upon  that  ground  part  of  his  decree  was  founded. 
But  that  I  conceive  to  be  a  clear  mistake.  And  it  appears  from  the 
case  of  Savignac  v.  Cuff  (of  which  case  I  know  nothing  but  from  what 
has  been  quoted  by  the  counsel,  and  that  case  having  occurred  before 
the  unfortunate  year  1780,  no  further  account  can  be  obtained),  that 
though  Lord  Mansfield  at  first  thought  that  there  was  a  distinction  be- 
tween bills  of  lading  indorsed  in  blank  and  otherwise,  yet  he  afterwards 
abandoned  that  ground.  In  Salomons  v.  Nissen,  Mich.  1788,  2  Term 
Rep.  674,  the  bill  of  lading  was  to  order  or  assigns,  and  the  indorse- 
ment in  blank  ;  but  the  court  held  it  to  be  clear  that  the  property 
passed.  He  who  delivers  a  bill  of  lading  indorsed  in  blank  to  another 
not  only  puts  it  in  the  power  of  the  person  to  whom  it  is  delivered,  but 
gives  him  authority  to  fill  it  up  as  he  pleases;  and  it  has  the  same 
effect  as  if  it  were  filled  up  with  an  order  to  deliver  to  him.  The 
next  point  to  be  considered  is,  what  difference  do  the  words,  "to  be 
sold  by  the  plaintiffs  on  Freeman's  account,"  make  in  the  present  case. 
It  has  been  argued  that  they  prove  the  plaintiffs  to  be  factors  only. 
But  it  is  to  be  observed  that  these  words  are  not  found  in  the  bill  of 
lading  itself:  and  therefore  they  cannot  alter  the  nature  and  construc- 
tion of  it.  I  say  they  were  not  in  the  bill  of  lading  itself;  for  it  is 
expressly  stated  that  the  bill  of  lading  was  sent  by  Freeman  in  the 
same  state  in  which  it  was  received,  and  in  that  there  is  no  restriction 
or  qualification  whatever ;  but  it  appeared  by  some  other  evidence,  I 
suppose  by  some  letter  of  advice,  that  the  goods  were  so  sent,  to 
be  sold  by  the  plaintiffs  on  Freeman's  account.  Supposing  that  the 
plaintiffs  are  to  be  considered  as  factors,  yet  if  the  bill  of  lading,  as  I 


CHAP.  III.]  LICKBARROW   V.    MASON.  373 

shall  contend  presently,  passes  the  legal  property  in  the  goods,  the  cir- 
cumstance of  the  plaintiffs  being  liable  to  render  an  account  to  Freeman 
fur  those  goods  afterwards  will  not  put  Turing  in  a  better  condition 
in  this  cause.  For  a  factor  has  not  only  a  right  to  keep  goods  till  he 
is  paid  all  that  he  has  advanced  or  expended  on  account  of  the  par- 
ticular goods,  but  also  till  he  is  paid  the  balance  of  his  general  account. 
The  truth  of  the  case,  as  I  consider  it,  is  that  Freeman  transferred  the 
legal  property  of  the  goods  to  the  plaintiffs,  who  were  to  sell  them, 
and  pay  themselves  the  £520  advanced  in  bills  out  of  the  produce,  and 
so  he  accountable  to  Freeman  for  the  remainder,  if  there  were  any. 
lint  if  the  goods  had  not  sold  for  so  much  as  £520  Freeman  would 
still  have  remained  debtor  to  the  plaintiffs  for  the  difference  ;  and  so 
far  only  they  were  sold  on  Freeman's  account.  But  1  hold  that  a 
factor,  who  has  the  legal  property  in  goods,  can  never  have?  that  prop- 
erty taken  from  him,  till  he  is  paid  the  uttermost  farthing  which  is  i\na 
to  him.  Kruger  '•.  Wilcocks,  Ambl.  252.  This  tilings  me  to  the  two 
great  questions  in  the  cause,  which  are  undoubtedly  of  as  much  im- 
portance to  trade  as  any  questions  which  ever  can  arise.  The  first  is, 
Whether  at  law  the  property  of  goods  at  sea  passes  by  the  indorse- 
ment of  a  bill  of  lading?  The  second,  Whether  the  defendant,  who 
stands  in  the  place  of  the  original  owner,  had  a  right  to  stop  the  goods 
in  transitu?  And  as  to  the  first,  every  authority  which  can  be 
adduced  from  the  earliest  period  of  time  down  to  the  present  hour 
agree  that  at  law  the  property  docs  pass  as  absolutely  and  as  effectually 
as  if  the  goods  had  been  actually  delivered  into  the  hands  of  the  con- 
signee. In  1690  it  was  so  decided  in  the  case  of  Wiseman  r.  Vande- 
putt,  2  Vein.  203.  In  1697,  the  court  determined  again,  in  Evans  ,-. 
Marlett,  that  the  property  passes  by  the  bill  of  lading.  That  case  is 
reported  in  1  Ld.  Hay.  271,  and  in  12  Mod.  I'm!,  and  both  books 
agree  in  the  points  decided.  Lord  Raymond  states  it  to  be,  that  if 
goods  by  a  bill  of  lading  are  consigned  to  A,  A  is  the  owner,  and  must 
bring  the  action  ;  but  if  the  bill  be  special,  to  be  delivered  to  A  to  the 
use  of  B,  B  ought  to  bring  the  action  ;  but  if  the  bill  lie  oftMioral  to  A. 
and  the  invoice  only  shows  that  they  are  on  account  of  B  (which  I 
take  to  be  the  present  case),  A  ought  always  to  bring  the  action  :  for 
the  property  is  in  him,  and  B  has  only  a  trust.  And  Holt.  C.  J.,  says 
the  consignee  of  a  bill  of  lading  has  such  a  property  as  that  lie  may 
assign  it  over;  and  Shower  said  it  had  been  so  adjudged  in  the 
Exchequer.  In  12  Mod.  it  is  said  that  the  court  held  that  the  invoice 
signified  nothing:  but  that  the  consignment  in  a  bill  of  lading  gives 
the  property,  except  where  it  is  for  the  account  of  another,  that  is, 
where  on  the  face  of  the  bill  it  imports  to  be  for  another.  In  Wright 
v.  Campbell,  in  I  7C 7.  1  Burr.  20  If..  Lord  Mansfield  said.  "  If  the  goods 
are  linim  fide  sold  by  the  factor  at  sea  (as  they  may  be  where  no  other 
delivery  can  be  given),  it  will  be  good  notwithstanding  the  Stat.  21 
Jac.  I.  The  vendee  shall  hold  them  by  virtue  of  the  bill  of  sale,  though 
no  actual  possession   be  delivered;  and   the  owner  can  never  dispute 


a7±  LICKBAKKOW    V.    MASON.  [CHAP.  III. 

with  the  vendee,  because  the  goods  were  sold  bona  fide,  and  by  the 
owner's  own  authority."  His  Lordship  added  (though  that  is  not 
stated  in  the  printed  report),  that  the  doctrine  in  Lord  Raymond  was 
right,  that  the  property  of  goods  at  sea  was  transferable.  In  Fearon 
v.  Bowers,  in  1753,  Lord  C.  J.  Lee  held  that  a  bill  of  lading  transferred 
the  property,  and  a  right  to  assign  that  property  by  indorsement ;  but 
that  the  captain  was  discharged  by  a  delivery  under  either  bill.  In 
Snee  v.  Prescot,  in  1743,  1  Atk.  245,  Lord  Hardwicke  says,  where  a 
factor,  by  the  order  of  his  principal,  buys  goods  with  his  own  money, 
and  makes  the  bill  of  lading  absolutely  in  the  principal's  name,  to  have 
the  goods  delivered  to  the  principal,  in  such  case  the  factor  cannot 
countermand  the  bill  of  lading,  but  it  passes  the  property  of  the  goods 
fully  and  irrevocably  in  the  principal.  Then  he  distinguishes  the  case 
of  blank  indorsement,  in  which  he  was  clearly  wrong.  He  admits,  too, 
that  if  upon  a  bill  of  lading  between  merchants  residing  in  different 
countries,  the  goods  be  shipped  and  consigned  to  the  principal  ex- 
pressly in  the  body  of  the  bill  of  lading,  that  vests  the  property  in  the 
consignee.  In  Caldwell  v.  Ball,  in  17<s6,  1  Term  Rep.  205,  the  court 
held  that  the  indorsement  of  the  bill  of  lading  was  an  immediate  trans- 
fer of  the  legal  interest  in  the  cargo.  In  Hibbert  v.  Carter,  in  1787, 
1  Term  Rep.  745,  the  court  held  again  that  the  indorsement  and 
delivery  of  the  bill  of  lading  to  a  creditor  prima  facie  conveyed  the 
whole  property  in  the  goods  from  the  time  of  its  delivery.  The  case 
of  Godfrey  v.  Furze,  3  P.  Wins.  185,  was  quoted  on  behalf  of  the 
defendant.  A  merchant  at  Bilboa  sent  goods  from  thence  to  B,  a 
merchant  in  London,  for  the  use  of  B,  and  drew  bills  on  B  for  the 
money.  The  goods  arrived  in  London,  which  B  received,  but  did 
not  pay  the  money,  and  died  insolvent.  The  merchant  beyond  sea 
brought  his  bill  against  the  executors  of  the  merchant  in  London, 
praying  that  the  goods  might  be  accounted  for  to  him,  and  insisting 
that  he  had  a  lien  on  them  till  paid.  Lord  Chancellor  says,  when  a 
merchant  beyond  sea  consigns  goods  to  a  merchant  in  London  on 
account  of  the  latter,  and  draws  bills  on  him  for  such  goods,  though 
the  money  be  not  paid,  yet  the  property  of  the  goods  vests  in  the 
merchant  in  London,  who  is  credited  for  them,  and  consequently  they 
are  liable  to  his  debts.  But  where  a  merchant  beyond  sea  consigns 
goods  to  a  factor  in  London,  who  receives  them,  the  factor  in  this  case, 
being  only  a  servant  or  agent  for  the  merchant  beyond  sea,  can  have 
no  property  in  such  goods,  neither  will  they  be  affected  by  his  bank- 
ruptcy. The  whole  of  this  case  is  clear  law  ;  but  it  makes  for  the 
plaintiffs  and  not  for  the  defendants.  The  first  point  is  this  very  case  ; 
for  the  bill  of  lading  here  is  generally  to  the  plaintiffs,  and  therefore  on 
their  account;  and  in  such  case,  though  the  money  be  not  paid,  the 
property  vests  in  the  consignee.  And  this  is  so  laid  down  without 
regai'd  to  the  question,  whether  the  goods  were  received  by  the  con- 
signee or  not.  The  next  point  there  stated  is,  what  is  the  law  in  the 
case  of  a  pure  factor,  without  any  demand  of  his  own.    Lord  King  says 


CHAP.  III.]  LICKBAREOW    V.    MASON.  375 

he  would  have  no  property.  This  expression  is  used  as  between  con- 
signor and  consignee,  and  obviously  means  no  more  than  that,  in  the 
case  put,  the  consignor  may  reclaim  the  property  from  the  consignee. 
The  reason  given  by  Lord  King  is,  because  in  this  case  the  factor  is 
only  a  servant  or  agent  for  the  merchant  beyond  sea.  I  agree  if  he  be 
merely  a  servant  or  agent,  that  part  of  the  case  also  is  good  law,  and 
the  principal  may  retain  the  property.  But  then  it  remains  to  be 
prove!  thai  a  man  who  is  in  advance  or  under  acceptances  on  account 
of  the  goods  is  simply  and  merely  a  servant  or  agent;  for  which  no 
authority  has  been,  or,  as  I  believe,  can  be  produced.  Here  the  bills 
were  drawn  by  freeman  upon  the  plaintiffs  upon  the  same  day,  and  at 
the  same  time,  as  he  sent  the  goods  to  them  ;  and  therefore  this  must, 
by  fair  and  necessary  intendment,  be  taken  to  be  one  entire  transac- 
tion ;  and  that  the  bills  were  drawn  on  account  of  the  goods,  unless 
the  contrary  appear.  So  far  from  the  contrary  appearing  here,  when 
it  was  thought  proper  to  allege  on  this  demurrer  that  the  price  of  the 
goods  was  not  paid,  it  is  expressly  so  stated;  for  the  demurrer  says, 
that  the  price  of  the  goods  is  now  due  to  Turing  and  Son.  But  it  finds 
that  the  other  bills  were  afterwards  paid  by  the  plaintiffs  ;  and  con- 
sequently they  have  paid  for  the  goods  in  question.  As  between  the 
principal  and  mere  factor,  who  has  neither  advanced  nor  engaged  m 
anything  for  his  principal,  the  principal  has  a  right  at  all  times  to  take 
back  his  goods  at  will ;  whether  they  be  actually  in  the  factor's  pos- 
session, or  only  on  their  passage,  makes  no  difference;  the  principal 
may  countermand  his  order;  and  though  the  property  remain  in  the 
factor,  till  such  countermand,  yet  from  that  moment  the  property 
revests  in  the  principal,  and  he  ma}'  maintain  trover.  But  in 
the  present  case  the  plaintiffs  are  not  that  mere  agent  or  servant ; 
they  have  advanced  £520  on  the  credit  of  those  goods  which  at  a  ris- 
ing market  were  worth  only  £557,  and  they  have  besides,  as  I  con- 
ceive, the  legal  property  in  the  goods  under  the  bill  of  lading.  But 
it  was  contended  at  the  bar,  that  the  property  never  passed  out  of 
Turing;  and  to  prove  it  Hob.  41,  was  cited.  In  answer  to  this  I  must 
beg  leave  to  say,  that  the  position  in  Hobart  does  not  apply  ;  because 
there  no  day  of  payment  was  given  ;  it  was  a  bargain  for  ready  money  ; 
but  here  a  month  was  given  for  payment.  And  in  Xoy's  Maxims,  87, 
this  is  laid  down:  "  If  a  man  do  agree  for  a  price  of  wares,  he  may 
not  carry  them  away  before  he  hath  paid  for  them,  if  he  have  not 
a  day  expressly  given  to  him  to  pay  for  them."  Thorpe  v.  Thorpe, 
Rep.  temp.  Holt,  96,  and  Brice  v.  James,  Rep.  temp.  Ld.  Mans- 
field, S.  P.  So.  Dy.  30  and  76.  And  in  Shep.  Touch,  222.  it  is  laid 
down,  that  if  one  sell  me  a  horse  or  any  other  thing  for  money,  or 
any  other  valuable  consideration,  and  the  same  thing  is  to  be  deliv- 
ered to  me  at  a  day  certain,  and  by  our  agreement  a  day  is  set  foi  the 
payment  of  the  money,  it  is  a  good  bargain  and  sale  to  alter  the  property 
thereof;  and  I  may  have  an  action  for  the  thing,  and  the  seller  for  his 
money.     Thus  stand  the  authorities  on  the  point  of  legal  property  ; 


376  LICKBARROW   V.   MASON.  [CHAP.  III. 

and  from  hence  it  appears  that  for  upwards  of  100  years  past  it  has 
been  the  universal  doctrine  of  Westminster  Hall  that  b}'  a  bill  of  lading, 
and  by  the  assignment  of  it,  the  legal  property  does  pass.  And,  as  I 
conceive,  there  is  no  judgment  nor  even  a  dictum,  if  properly  under- 
stood, which  impeaches  this  long  string  of  cases  ;  on  the  contraiy,  if 
any  argument  can  be  drawn  by  analogy  from  older  cases  on  the  vesting 
of  property,  they  all  tend  to  the  same  conclusion.  If  these  cases  be 
law,  and  if  the  legal  property  be  vested  in  the  plaintiffs,  that,  as  it 
seems  to  me,  puts  a  total  end  to  the  present  case  ;  for  then  it  will  be 
incumbent  on  the  defendants  to  show  that  they  have  superior  equity 
which  bears  down  the  letter  of  the  law,  and  which  entitles  them  to 
retain  the  goods  against  the  legal  right  of  the  plaintiffs,  or  they  have 
no  case  at  all.  I  find  myself  justified  in  saying  that  the  legal  title,  if 
in  the  plaintiffs,  must  decide  this  cause  by  the  very  words  of  the 
judgment  now  appealed  against ;  for  the  noble  Lord  who  pronounced 
that  judgment  emphatically  observed  in  it,  "  that  the  plaintiffs  claim 
under  Freeman  ;  but  though  they  derive  a  title  under  him,  they  do  not 
represent  him,  so  as  to  be  answerable  for  his  engagements  ;  nor  are 
they  affected  by  any  notice  of  those  circumstances  which  would  bar  the 
claims  of  him  or  his  assignees."  This  doctrine,  to  which  1  fully  sub- 
scribe, seems  to  me  to  be  a  clear  answer  to  any  supposed  lien  which 
Turing  may  have  on  the  goods  in  question  for  the  original  price  of 
them.  But  the  second  question  made  in  the  cause  is  that,  however  the 
legal  property  be  decided,  the  defendants,  who  stand  in  the  place  of 
the  original  owner,  had  a  right  to  stop  the  goods  in  transitu,  and  have 
a  lien  for  the  original  price  of  them.  Before  I  consider  the  authorities 
applicable  to  this  part  of  the  case,  I  will  beg  leave  to  make  a  few  obser- 
vations on  the  right  of  stopping  goods  in  transitu,  and  on  the  nature 
and  principle  of  liens.  1st.  Neither  of  them  are  founded  on  property; 
but  they  necessarily  suppose  the  property  to  be  in  some  other  person, 
and  not  in  him  who  sets  up  either  of  these  rights.  They  are  qualified 
rights,  which  in  given  cases  may  be  exercised  over  the  property  of 
another  ;  and  it  is  a  contradiction  in  terms  to  say  a  man  has  a  lien  upon 
his  own  goods,  or  a  right  to  stop  his  own  goods  in  transitu.  If  the 
goods  lie  his  he  lias  a  right  to  the  possession  of  them  whether  they  be 
in  transitu  or  not  :  he  has  a  right  to  sell  or  dispose  of  them  as  he 
pleases,  without-  the  option  of  any  other  person  :  but  lie  who  has  a  lien 
only  on  goods  has  no  right  so  to  do;  he  can  only  retain  them  till  the 
original  price  be  paid  ;  and  therefore  if  goods  are  sold  for  £500  and  by 
a  change  of  the  market,  before  they  are  delivered,  they  become  next 
day  worth  £1,000,  the  vendor  can  only  retain  them  till  the  £500  be 
paid,  unless  the  bargain  be  absolutely  rescinded  by  the  vendee's  refus- 
ing to  pay  the  £500.  2dly.  Liens  at  law  exist  only  in  cases  where 
the  paily  entitled  to  them  has  the  possession  of  the  goods;  and  if  he 
once  pari  with  the  possession  after  the  lien  attaches,  the  lien  is  none. 
3dly.  The  right  of  stopping  in  transitu  is  founded  wholly  on  equitable 
principles,  which  have  been  adopted  in  courts  of  law;  and  as  far  as 


CHAP.  III.]  LICKBARROW    V.    MASON.  377 

they  have  been  adopted  I  agree  they  will  bind  at  law  as  well  as  in 
equity.     So  late  as  the  year  1690,  this  right,  or  privilege,  or  whatever 
it  may  be  called,  was  unknown  to  the  law.     The  first  of  these  propo- 
sitions is  self-evident,  and   requires  no  argument  to  prove  it.     As  to 
the  second,  which  respects  liens,  it  is  known  and  unquestionable  law, 
that   if  a  carrier,  a   farrier,  a  tailor,  or   an   inn-keeper,  deliver   up  the 
goods,  his  lien  is  gone.     .So  also  is  the  case  of  a  factor  as  to  the  par- 
ticular goods :  hut  by  the  general  usage  in  trade  he  may  retain  for  the 
balance  of  his  account  all  goods  in   his  hands,  without  regard  to  the 
time  when  or  on  what  account  he  received  them.     In  Snce  v.  Prescot, 
Lord   llardwicke  says,  that  which  not  only  applies  to  the  case  of  liens, 
but  to   the  right  of  stopping  goods   in  transitu  under  circumstances 
similar  to  the  case  in  judgment;   for  he  says,  where  goods  have   been 
negotiated,  and  sold  again,  there  it  would  be  mischievous  to  say  that 
the  vendor  or  factor  should   have  a  lien  upon  the  goods  for  the  price  ; 
for  then   no  dealer  would  know  when  he  purchased  goods  safely.     So 
in  Lempriere  v.  Pasley,  2  Term  R.  485,  the  court  said  it  would  he  a 
great  inconvenience  to  commerce  if  it  were  to  be  laid  down  as  law, 
that  a  man  could  never  take  up  money  upon  the  credit  of  goods  con- 
signed till  they  actually  arrived  in  port.     There  are  other  cases  which 
in    my  judgment  apply    as   strongly   against  the  right  of  seizing   in 
transitu  to  the  extent  contended  for  by  the  defendants  ;  but  before  I 
go  to  them,  with  your  Lordships'  permission,  I  will  state  shortly  the 
facts  of  the  case  of  Snee  v.  Prescot,   with  a  few  more  observations 
upon  it.     The  doctrine  of  stopping  in  transitu  owes  its  origin  to  courts 
of  equity  ;  and  it  is  very  material  to  observe  that  in  that  case,  as  well 
as  many  others  wnich  have  followed  it  at  law,  the  question  is  not  as  the 
counsel  for  the  defendants  would  make  it,  whether  the  property  vested 
under  the  bill  of  lading;    for  that  was  considered  as  being  clear;  hut 
whether,  on  the  insolvency  of  the  consignee,  who  had  not  paid   for  the 
goods,  the  consignor  could  countermand  the  consignment,  or  in  other 
words  divest  the  property  which  was  vested  in   the  consignee.      Snee 
and  Baxter,  assignees  of  John  Toilet  v.  Prescott  and  others.  1  Atk. 
245.     Toilet,   a  merchant  in   London,   shipped  to  Ragueneau   &   Co.. 
his  factors  at  Leghorn,  serges  to  sell,  and  to  buy  double  the  value  in 
silks,   for  which  the  factors  were  to  pay  half  in  ready  money  of  their 
own,  which  Toilet  would  repay  by  bills  drawn  on  him.     The  silks  were 
bought  accordingly,  and  shipped  on  board  Dawson's  ship,  marked  ••T.  ;" 
Dawson  signed  three  bills  of  lading,  to  deliver  at  London  to  factors, 
consignors,  or  their  order.     The  factors  indorsed  one  bill  of  lading  in 
blank,  and   sent  it  to  Toilet,    who   tilled   up  the  same  and   pawned   it. 
The  bills  drawn  by  the  factors  on  Toilet  were  not   paid,  but    Toilet    be- 
came  a   bankrupt     The  factors  sent  another  bill  of  lading,   properly 
indorsed,  to  Prescott.  who  offered  to  pay  the  pawnee,  but  he  refused  to 
deliver  up  the  bill  of  lading;   on  which   Prescott  got  possession   of  the 
goods  from    Dawson,  under  tin-   last   bill  of  lading.     The  assignees  of 
Toilet   brought  the   bill   to   redeem   by  paying  the  pawnee  out  of  the 


378  LICKBARliOW    V.    MASON.  [CHAP.  III. 

money  arising  by  sale,  and  to  have  the  rest  of  the  produce  paid  to 
them  ;  and  that  the  factors,  although  in  possession  of  the  goods  should 
be  considered  as  general  creditors  only,  and  be  driven  to  come  in  under 
the  commission.  Decreed,  1st,  that  the  factors  should  be  paid  ;  2d,  the 
pawnees  :  and  3d,  the  surplus  to  the  assignees.  The  decree  was  just 
and  right  in  saying  that  the  consignor,  who  never  had  been  paid  for 
the  goods,  and  the  pawnees,  who  had  advanced  money  upon  the  goods, 
should  both  be  paid  out  of  the  goods  before  the  consignee  or  his 
assignees  should  derive  any  benefit  from  them.  That  was  the  whole 
of  the  decree  ;  and  if  the  circumstance  of  the  consignor's  interest  being 
first  provided  for  be  thought  to  have  any  weight,  I  answer,  1st,  That 
such  provision  was  founded  on  what  is  now  admitted  to  be  an  apparent 
mistake  of  the  law,  in  supposing  that  there  was  a  difference  between  a 
full  and  a  blank  indorsement.  Lord  Hardwicke  considered  the  legal 
property  in  that  case  to  remain  in  the  consignor,  and  therefore  gave 
him  the  preference.  2dly,  That  whatever  might  be  the  law,  the  mere 
fact  of  the  consignor's  being  in  possession  was  a  sufficient  reason  for  a 
court  of  equity  to  say,  we  will  not  take  the  possession  from  you  till  you 
have  been  paid  what  is  due  to  you  for  the  goods.  Lord  Hardwicke 
expressly  said,  this  court  will  not  say,  as  the  factors  have  re-seized  the 
goods,  that  they  shall  be  taken  out  of  their  hands  till  payment  of  the 
half  price  which  they  have  laid  down  upon  them.  He  who  seeks  equity 
must  do  equity  ;  and  if  he  will  not,  he  must  not  expect  relief  from  a 
court  of  equity.  It  is  in  vain  for  a  man  to  say  in  that  court,  I  have  the 
law  with  me,  unless  he  will  show  that  he  has  equity  with  him  also.  If 
he  mean  to  rely  on  the  law  of  his  case,  he  must  go  to  a  court  of  law  ; 
and  so  a  court  of  equity  will  alwa}*s  tell  him  under  those  circumstances. 
The  case  of  Snee  v.  Prescot  is  miserably  reported  in  the  printed  book  : 
and  it  was  the  misfortune  of  Lord  Hardwicke,  and  of  the  public  in 
general,  to  have  man}*  of  his  determinations  published  in  an  incorrect 
and  slovenly  way ;  and  perhaps,  even  he  himself  by  being  very  diffuse 
has  laid  a  foundation  for  doubts  which  otherwise  would  never  have  ex- 
isted. I  have  quoted  that  case  from  a  MS.  note  taken,  as  I  collect,  by 
Mr.  John  Cox,  who  was  counsel  in  the  cause  ;  and  it  seems  to  me  that 
on  taking  the  whole  of  the  case  together,  it  is  apparent  that  whatever 
might  have  been  said  on  the  law  of  the  case  in  a  most  elaborate  opin- 
ion, Lord  Hardwicke  decided  on  the  equity  alone  arising  out  of  all  the 
particular  circumstances  of  it,  without  meaning  to  settle  the  principles 
of  law,  on  which  the  present  case  depends.  In  one  part  of  his  judg- 
ment he  says,  that  in  strictness  of  law  the  property  vested  in  Toilet 
at  the  time  of  the  purchase  ;  but  however  that  ma}'  be,  says  he,  this 
court  will  not  compel  the  factors  to  deliver  the  goods  without  being 
disbursed  what  they  have  laid  out.  He  begins  by  saying,  the  demand 
is  :is  harsh  as  can  possibly  come  into  a  court  of  equity.  And  in  another 
part  of  his  judgment  he  says,  suppose  the  legal  property  in  these  goods 
was  vested  in  the  bankrupt,  and  that  the  assignees  had  recovered,  yet 
this  court  would  not  sutler  them  to  take  out  execution  for  the  whole 


CHAP.  III.]  UCKBAKUUW    27.    MASON.  379 

value,  but  would  oblige  them  to  account.  But  further,  as  to  the  right 
of  seizing  or  stopping  the  goods  in  transitu,  I  hold  that  no  man  who 
has  not  equity  on  his  side  can  have  that  right.  I  will  say  with  con- 
fidence, that  no  case  or  authority  till  the  present  judgment  can  be  pro- 
duced to  show  that  he  has.  But  on  the  other  hand,  in  a  very  able 
judgment  delivered  by  my  brother  Ashhurst  in  the  case  of  Lempriere  v. 
Pasley,  in  1788,  2  Term  Rep.  485,  he  laid  it  down  as  a  clear  prin- 
ciple that  as  between  a  person  who  has  an  equitable  lien,  and  a  third 
person  who  purchases  a  thing  for  a  valuable  consideration  and  without 
notice,  the  prior  equitable  lien  shall  not  overreach  the  title  of  the  ven- 
dee. This  is  founded  on  plain  and  obvious  reason;  for  he  who  has 
bought  a  thing  for  a  fair  and  valuable  consideration,  ami  without  notice 
of  any  right  or  claim  by  any  other  person,  instead  of  having  equity 
against  him  has  equity  in  his  favor;  and  if  he  have  law  and  equity 
both  with  him,  he  cannot  be  beat  by  a  man  who  has  equal  equity  only. 
Again,  in  a  very  solemn  opinion  delivered  in  this  house  by  the  learned 
ami  respectable  judge  who  has  often  had  the  honor  of  delivering  the 
sentiments  of  the  judges  to  your  Lordships  when  you  are  pleased  to 
require  it,  so  lately  as  the  14th  May,  17(J0,  in  the  case  of  Kmloch  v. 
Craig,  3  Term  R.  787,  it  was  laid  down  that  the  right  of  stopping 
goods  in  transitu  never  occurred  but  as  between  vendor  and  vendee  , 
for  that  he  relied  on  the  case  of  Wright  v.  Campbell,  4  Burr.  2050. 
Nothing  remains  in  order  to  make  that  case  a  direct  and  conclusive 
authority  for  the  present,  but  to  show  that  this  is  not  the  case  of  ven- 
dor and  vendee.  The  terms  vendor  and  vendee  necessarily  mean  the 
two  parties  to  a  particular  contract :  those  who  deal  together,  and  be- 
tween whom  there  is  a  privity  in  the  disposition  of  the  thing  about 
which  we  are  talking.  If  A  sell  a  horse  to  B,  and  B  afterwards  sell 
him  to  C,  and  C  to  D,  and  so  on  through  the  alphabet,  each  man 
who  buys  the  horse  is  at  the  time  of  buying  him  a  vendee  ;  but  it  would 
be  strange  to  speak  of  A  and  D  together  as  vendor  and  vendee  ;  for 
A  never  sold  to  D,  nor  did  D  ever  buy  of  A.  These  terms  are  cor- 
relatives, and  never  have  been  applied,  or  ever  can  be  applied  in  any 
other  sense  than  to  the  persons  who  bought,  and  sold  to,  each  other. 
The  defendants,  or  Turing,  in  whose  behalf,  and  under  whose  name 
and  authority  they  have  acted,  never  sold  these  goods  to  the  plaintiffs  ; 
the  plaintiffs  never  were  the  vendees  of  either  of  them.  Neither  do  the 
plaintiffs  (if  I  may  be  permitted  to  repeat  again  the  forcible  words  of 
the  noble  judge  who  pronounced  the  judgment  in  question)  represent 
Freeman,  so  as  to  be  answerable  for  his  engagements,  or  stand  affected 
by  any  notice  of  those  circumstances  which  would  bar  the  claim  of 
Freeman  or  his  assignees.  These  reasons,  which  I  could  not  have 
expressed  with  equal  clearness  without  reclining  to  the  words  of  the 
two  great  authorities  by  whom  they  were  used,  and  to  whom  I  always 
bow  with  reverence,  in  my  humble  judgment  put  an  end  to  all  questions 
about  the  right  of  seizing  in  transitu.  Two  other  cases  were  mentioned 
at  the  bar  which  deserve  some  attention.    One  is  the  case  of  the  assignees 


380  LICKBARROW   V.   MASON.  [CHAP.  III. 

of  Burghall  v.  Howard,  1  II.  Blac.  3G5  n.,  before  Lord  Mansfield  at  Guild- 
hall in  175l»,  where  the  only  point  decided  by  Lord  Mansfield  was,  that 
if  a  consignee  become  a  bankrupt,  and  no  part  of  the  price  of  the  goods 
be  paid,  the  consignor  may  seize  the  goods  before  the}'  come  to  the 
hands  of  the  consignee  or  his  assignees.  This  was  most  clearly  right; 
but  it  does  not  apply  to  the  present  case  :  for  when  he  made  use  of  the 
word  assignees,  he  undoubtedly  meant  assignees  under  a  commission 
of  bankrupt,  like  those  who  were  then  before  him,  and  not  persons  to 
whom  the  consignee  sold  the  goods.  For  in  that  case  it  is  stated  that 
no  part  of  the  price  of  the  goods  was  paid.  The  whole  cause  turns 
upon  this  point.  In  that  case  no  part  of  the  price  of  the  goods  was 
paid,  and  therefore  the  original  owner  might  seize  the  goods.  But  in 
this  case  the  plaintiffs  had  paid  the  price  of  the  goods,  or  were  under 
acceptances  for  them,  which  is  the  same  thing  ,  and  therefore  the  origi- 
nal owner  could  not  seize  them  again.  But  the  note  of  that  case  says, 
Lord  Mansfield  added,  "and  this  was  ruled,  not  upon  principles  of 
equity  only,  but  the  laws  of  property."  Do  these  words  fairly  import 
that  the  property  was  not  altered  by  a  bill  of  lading,  or  by  the  indorse- 
ment of  it?  That  the  liberty  of  stopping  goods  in  transitu  is  originally 
founded  on  principles  of  equity,  and  that  it  has,  in  the  case  before  him, 
been  adopted  by  the  law,  and  that  it  does  affect  property,  are  all  true ; 
and  that  is  all  that  the  words  mean  ;  not  that  the  property  did  not  pass 
by  the  bill  of  lading.  The  commercial  law  of  this  country  was  never 
better  understood,  or  more  correctly  administered  than  by  that  great 
man.  It  was  under  his  fostering  hand  that  the  trade  and  the  commercial 
law  of  this  country  grew  to  its  present  amazing  size  ;  and  when  we  find 
him  in  other  instances  adopting  the  language  and  opinion  of  Lord  C.  J. 
Holt,  and  saying  that  since  the  cases  before  him  it  had  always  been 
laid  that  the  delivery  of  a  bill  of  lading  transferred  the  property  at 
law,  and  in  the  year  1767  deciding  that  very  point,  it  does  seem  to  me 
to  be  absolutely  impossible  to  make  a  doubt  of  what  was  his  opinion 
and  meaning.  All  his  determinations  on  the  subject  are  uniform. 
Even  the  case  of  Savignac  v.  Cuff,  of  which  we  have  no  account,  be- 
sides the  loose  and  inaccurate  note  produced  at  the  bar,  as  I  understand 
it,  goes  upon  the  same  principle.  The  note  states  that  the  counsel  for 
the  plaintiff  relied  on  the  property  passing  by  the  bill  of  lading;  to 
which  Lord  Mansfield  answered,  the  plaintiff' has  lost  his  lien,  he  stand- 
ing in  the  place  of  the  consignee.  Lord  Mansfield  did  not  answer  mer- 
cantile questions  so :  which,  as  stated,  was  no  answer  to  the  question 
made.  But  I  think  enough  appears  on  that  case  to  show  the  grounds 
of  the  decision,  to  make  it  consistent  with  the  case  of  Wright  and  Camp- 
bell, and  to  prove  it  a  material  authority  for  the  plaintiffs  in  this  case. 
I  collect  from  it  that  the  plaintiff  had  notice  by  the  litter  of  advice  that 
Lingham  had  not  paid  for  the  goods  ;  and  if  so,  then,  according  to  the 
case  of  Wright  '•.  Campbell,  he  could  only  stand  in  Lingham's  place, 
l^ii  the  necessity  of  recurring  t<>  the  question  of  notice  strongly  proves. 
that  if  there  had  been  no  such  notice,  the  plaintiff,  who  was  the  assignee 


CHAP.  III.]  LICKBAK110W    V.    MASON.  381 

of  LiDgham  the  consignee,  would  not  have  stood  in  Lingbam's  place, 
and  the  consignor  could  not  have  seized  the  goods  in  transitu  ;  but 
that,  having  seized  them,  the  plaintiff  would  have  been  entitled  to 
recover  the  full  value  of  them  from  him.  This  way  of  considering  it 
makes  that  ease  a  direct  authority  in  point  for  the  plaintiffs.  There  is 
another  circumstance  in  that  case  material  for  consideration,  because  it 
shows  how  far  only  the  right  of  seizing  in  transitu,  extends  as  between 
the  consignor  and  consignee.  The  plaintiff  in  that  action  whs  con- 
sidered as  the  consignee;  the  defendant,  the  consignor,  had  not  re- 
ceived the  full  value  for  his  goods,  but  the  consignee  had  paid  £150  on 
account  of  them.  Upon  the  insolvency  of  the  consignee  the  consignor 
seized  the  goods  in  transitu,  but  that  was  holden  not  to  be  justifiable, 
and  therefore  there  was  a  verdict  against  him.  That  was  an  action  of 
trover,  which  could  not  have  been  sustained  but  on  the  ground  that  the 
property  was  vested  in  the  consignee,  and  could  not  be  seized  in  transitu 
as  against  him.  If  the  legal  property  had  remained  in  the  consignor, 
what  objection  could  be  stated  in  a  court  of  law  to  the  consignor's 
taking  his  own  goods?  But  it  was  holden  that  he  could  not  seize  the 
goods  ;  which  could  only  be  on  the  ground  contended  for  by  Mr.  Wal- 
lace, the  counsel  for  the  plaintiff,  that  the  property  was  in  the  consignee. 
But  though  the  property  were  in  the  consignee,  yet,  as  I  stated  to  your 
Lordships  in  the  outset,  if  the  consignor  had  paid  to  the  consignee  all 
that  he  had  advanced  on  account  of  the  goods,  the  consignor  would  have 
had  a  right  to  the  possession  of  the  goods,  even  though  they  had  got 
into  the  hands  of  the  consignee  ;  and  upon  paying  or  tendering  that 
money  and  demanding  the  goods  the  property  would  have  revested  in 
him,  and  he  might  have  maintained  trover  for  them.  But  admitting 
that  the  consignee  had  the  legal  property,  and  was  therefore  entitled  to 
a  verdict,  still  the  question  remained  what  damages  he  should  recover. 
And  in  ascertaining  them  regard  was  had  to  the  true  merits  of  the  case, 
and  the  relative  situation  of  each  party.  If  the  consignee  had  obtained 
the  actual  possession  of  the  goods,  he  would  have  had  no  other  equitable 
claim  on  them  than  for  £150.  He  was  entitled  to  no  more  ;  the  defend- 
ant was  liable  to  pay  no  more  ;  and  therefore  the  verdict  was  given  for 
that  sum.  This  case  proceeded  precisely  upon  the  same  principles  as 
the  case  of  Wiseman  v.  Vandeput;  where,  though  it  was  determined 
that  the  legal  property  in  the  goods,  before  they  arrived,  was  in  the 
consignee,  yet  the  Court  of  Chancery  held  that  the  consignee  should  not 
avail  himself  of  that  beyond  what  was  due  to  him.  But  for  what  was 
due,  the  court  directed  an  account;  and  if  anything  were  due  from 
the  Italians  to  the  Bonnells,  that  should  be  paid  the  plaintiffs.  The 
plaintiffs  in  this  cause  are  exactly  in  the  situation  of  the  plaintiffs  in 
that  ease  ;  for  they  have  the  legal  property  in  the  goods  ;  and  therefore 
if  anything  be  due  to  them,  even  in  equity,  that  must  be  paid  before  any 
person  can  take  the  goods  from  them  :  and  £520  was  due  to  them,  and 
has  not  been  paid.  After  these  authorities,  taking  into  consideration 
also  that  there  is  no  case  whatever  in  which  it  has  been  holden  that 


382  LICKB ARROW    V.    MASON.  [CHAP.  III. 

goods  can  be  stopped  in  transitu  after  they  have  been  sold  and  paid 
for,  or  money  advanced  upon  them  bona  fide,  and  without  notice,  I  do 
not  conceive  that  the  case  is  open  to  any  arguments  of  policy  or  con- 
venience.    But  if  it  should  be  thought  so,  I  beg  leave  to  say,  that  in  all 
mercantile  transactions  one  great  point  to  be  kept  uniformly  in  view  is 
to  make  the  circulation  and  negotiation  of  property  as  quick,  as  easy, 
and  as  certain  as  possible.     If  this  judgment  stand,  no  man  will  be  safe 
either  in  buying,  or  in  lending  money  upon  goods  at  sea,     That  species 
of  property  will  be  locked  up  ;  and  many  a  man,  who  could  support  him- 
self with  honor  and  credit  if  he  could  dispose  of  such  property  to  supply 
a  present  occasion,  would  receive  a  check,  which  industry,  caution,  or 
attention  could  not  surmount.     If  the  goods  are  in  all  cases  to  be  liable 
to  the  original  owner  for  the  price,  what  is  there  to  be  bought?     There 
is  nothing  but  the  chance  of  the  market,  and  that  the  buyer  expects  as 
his  profit  on  purchasing  the  goods,  without  paying  an  extra  price  for  it. 
But  Turing  has  transferred  the  property  to  Freeman,  in  order  that  he 
might  transfer  it  again,  and  has  given  him  credit  for  the  value  of  the 
goods.    Freeman  having  transferred  the  goods  again  for  value,  I  am  of 
opinion  that  Turing  had  neither  property,  lien,  or  a  right  to  seize  in 
transitu.    The  great  advantage  which  this  country  possesses  over  most  if 
not  all  other  parts  of  the  known  world,  in  point  of  foreign  trade,  con- 
sists in  the  extent  of  credit  given  on  exports,  and  the  ready  advances 
made  on  imports.      But  amidst  all  these  indulgences  the  wise  merchant 
is  not  unmindful  of  his  true  interests  and  the  security  of  his  capital.     I 
will  beg  leave  to  state,  in  as  few  words  as   possible,  what  is  a  very 
frequent  occurrence  in  the  city  of  London.     A  cargo  of  goods  of  the 
value  of  £2,000  is  consigned  to  a  merchant  in  London  ;  and  the  moment 
they  are  shipped  the  merchant  abroad  draws  upon  his   correspondent 
here   to  the  value  of  that  cargo;    and   by  the  first  post  or  ship  he 
sends  him  advice,  and  incloses  the  bill  of  lading.     The  bills,  in  most 
cases,  arrive  before  the  cargo;  and  then  the  merchant  in  London  must 
resolve  what  part  he  will  take.      If  he  accept  the  bills,  he  becomes 
absolutely  and  unconditionally  liable  ;   if  he  refuse  them,  he  disgraces 
his  correspondent,  and  loses  his  custom  directly.      Yet  to  engage  for 
£2.000  without  any  security  from  the  drawer  is  a  bold  measure.     The 
goods  may  be  lost  "at  sea  ;  and  then  the  merchant  here  is  left  to  recover 
his  money  against  the  drawer  as  and  when  he  may.     The  question  then 
with  the"  merchant  is,  how  can  I  secure  myself  at  all   events?     The 
answer  is,  I  will  insure,  and  then  if  the  goods  come  safe  I  shall  be 
repaid  out  of  them,  or  if  they  be  lost,  I  shall  be  repaid  by  the  under- 
writers on  the  policy.     But  this  cannot  be  done  unless  the  property 
vesl  in  him  by  the  bill  of  lading;  for  otherwise  his  policy  will  be  void 
for  want   -»!'  interest.     And  an  insurance  in  the  name  of  the  foreign 
merchant  would  not  answer  the  purpose.     This  is  the  case  of  the  mer- 
chant who  is  wealthy,  and  has  the  £2,000  in  his  banker's  hands,  which 
he  can  part  with,  and  not  find  any  inconvenience  in  so  doing.     But 
there  is  another  case  to  be  considered,  viz. :  Suppose  the  merchant  here 


CHAP.  III.]  LICKBARROW   V.   MASON.  383 

has  not  got  the  £2,000,  and  cannot  raise  it  before  he  has  sold  the 
goods?  the  same  considerations  arise  in  his  mind  as  in  the  former  case, 
with  this  additional  circumstance,  that  the  money  must  be  procured 
before  the  hills  become  due.  Then  the  question  is,  how  can  that  be 
done?  If  he  have  the  property  in  the  goods,  he  can  go  to  market  with 
the  bill  of  lading  and  the  policy,  as  was  done  in  Snee  and  l'rescot ;  and 
upon  that  idea  he  has  hitherto  had  no  difficulty  in  doing  so.  But  if  he 
have  not  the  property,  nobody  will  buy  of  him,  and  then  his  trade  is 
undone.  But  there  is  still  a  third  case  to  be  considered  ;  for  even  the 
wary  and  opulent  merchant  often  wishes  to  sell  his  goods  whilst  they 
are  at  sea.  I  will  put  the  case,  by  way  of  example,  that  barilla  is 
shipped  for  a  merchant  here  at  a  time  when  there  has  been  a  dearth  of 
that  commodity,  and  it  produces  a  profit  of  £25  per  cent,  whereas 
upon  an  average  it  does  not  produce  above  £12.  The  merchant  has 
advices  that  there  is  a  great  quantity  of  that  article  in  Spain  intended 
for  the  British  market,  and  when  that  arrives  the  market  will  be  glutted, 
and  the  commodity  much  reduced  in  value.  He  wishes  therefore  to  sell 
it  immediately,  whilst  it  is  at  sea,  and  before  it  arrives,  and  the  profit 
which  he  gets  by  that  is  fair  and  honorable ;  but  he  cannot  do  it  if  lie 
have  not  the  property  by  the  bill  of  lading.  Besides  a  quick  circula- 
tion is  the  life  and  soul  of  trade  ;  and  if  the  merchant  cannot  sell  with 
safety  to  the  buyer,  that  must  necessarily  be  retarded.  From  the  little 
experience  which  I  acquired  on  this  subject  at  Guildhall,  I  am  confident 
that  if  the  goods  in  question  be  retained  from  the  plaintiff  without 
repaying  him  what  he  has  advanced  on  the  credit  of  them,  it  will  be 
mischievous  to  the  trade  and  commerce  of  this  country  ;  and  it  seems 
to  me  that  not  only  commercial  interest,  but  plain  justice  and  public 
policy  forbid  it.  To  sum  up  the  whole  in  very  few  words,  the  legal 
property  was  in  the  plaintiff :  the  right  of  seizing  in  transitu  is  founded 
on  equity  :  no  case  in  equity  has  ever  suffered  a  man  to  seize  goods  in 
opposition  to  one  who  has  obtained  a  legal  title,  and  has  advanced 
money  upon  them  ;  but  Lord  Hardwicke's  opinion  was  clearly  against 
it:  and  the  law,  where  it  adopts  the  reasoning  and  principle  of  a  court 
of  equity,  never  has  and  never  ought  to  exceed  the  bounds  of  equity 
itself.  I  offer  to  your  Lordships  as  my  humble  opinion,  that  the  evi- 
dence given  by  the  plaintiff,  and  confessed  by  the  demurrer,  is  sufficient 
in  law  to  maintain  the  action. 

Ashhurst  and  Grose,  Justices,  also  delivered  their  opinions  for 
reversing  the  judgment  of  the  Exchequer  Chamber. 

Eyre,  C.  J.,  Gould,  J.,  Heath,  J.,  Hotham,  B.,  Perryx,  B.,  and 
Thomson,  B.,  contra. 

A  venire  facias  de  novo  having  been  awarded  by  the  King's  Bench,  a 
special  verdict  was  found  upon  the  second  trial,  containing  in  substance 
the  same  facts  as  before. 

And  then  the  jury  found  that  by  the  custom  of  merchants,  bills  of 
lading,  expressing  goods  or  merchandises  to  have  been  shipped  by  any 


3S4  BOHTLINGK   V.    INGLIS.  |_CHAP.  III. 

person  or  persons  to  be  delivered  to  order  or  assigns,  have  been,  and 
are,  at  any  time  after  such  goods  have  been  shipped,  and  before  the 
voyage  performed,  for  which  they  have  been  or  are  shipped,  negotiable 
and  transferable  by  the  shipper  or  shippers  of  such  goods  to  any  other 
person  or  persons,  by  such  shipper  or  shippers  indorsing  such  bills  of 
hiding  with  his,  her,  or  their  name  or  names,  and  delivering  or  trans- 
mitting the  same  so  indorsed,  or  causing  the  same  to  be  so  delivered  or 
transmitted  to  such  other  person  or  persons  ;  and  that  by  such  indorse- 
ment and  delivery  or  transmission,  the  property  in  such  goods  hath 
been,  and  is  transferred  and  passed  to  such  other  person  or  persons. 
And  that,  by  the  custom  of  merchants,  indorsements  of  bills  of  lading 
in  blank  —  that  is  to  say,  by  the  shipper  or  shippers  with  their  names 
onlv  _  have  been,  and  are,  and  may  be  filled  up  by  the  person  or  persons 
to  whom  they  are  so  delivered  or  transmitted  as  aforesaid,  with  words 
ordering  the  delivery  of  the  goods  or  contents  of  such  bills  of  lading  to 
be  made  to  such  person  or  persons  ;  and,  according  to  the  practice  of 
merchants,  the  same,  when  filled  up,  have  the  same  operation  and  effect 
as  if  the  same  had  been  made  or  done  by  such'shipper  or  shippers  when 
he,  she,  or  they  indorsed  the  same  bills  of  lading  with  their  names  as 
aforesaid.     But  whether,  &c. 

The  Court,  understanding  that  it  was  intended  that  this  case  was  to 
be  carried  up  to  the  House  of  Lords,  declined  entering  into  a  discussion 
of  it,  merely  saying  that  they  still  retained  the  opinion  delivered  upon 
the  former  case.     And  they  accordingly  gave 

Judgment  for  the  plaintiffs. 


BOHTLINGK  v.  INGLIS. 

In  the  King's  Bench,  February  11,  1803. 

[Reported  in  3  East,  381.] 

Lawrence,   J.,  delivered   the  judgment   of  the  court    (Grose,  Le 
Blanc,  and  Lawrence,  JJ.) 

The  circumstances  of  the  case  as  applicable  to  this  point  are  shortly 
these  :  Crane,  the  bankrupt,  a  merchant  in   London,  entered  into  an 

agree at  with  CJsherwood,  the  master  of  a  ship,  for  that  ship  going  to 

Petersburg,  and  there  receiving  from  the  factors  of  the  bankrupt  a 
quantity  of  merchandise  of  various  descriptions,  and  proceeding  from 
thence  to  London,  in  consideration  of  certain  freight  to  be  paid  per  ton. 
half  on  the  unloading,  and  the  remainder  in  three  months;  for  which 
goods  the  master  was  to  sign  the  usual  bills  of  lading,  and  Crane  was 
fully  to  load  the  ship.  In  consequence  of  this  agreement  the  ship  sailed 
to  Petersburg,  and  was  loaded  by  Bohtlingk  &  Co.  on  the  account 
and  risk  of  Crane;  and  one  part  of  the  bill  of  lading  directing  the 
goods  to  be  delivered  to  Crane  or  his  assigns  was  sent  to  him  ;  the 


CHAP    III.]  BOHTLIXGK   V.    INGLIS.  385 

other  part,  in  consequence  of  the  plaintiff's  having  information  of 
Crane's  insolvency,  was  afterwards  sent  to  Mr.  Schneider  their  agent, 
with  directions  not  to  deliver  that  part  to  Crane,  unless  he  gave  sulli- 
eient  security  for  the  amount  of  the  goods.  And  the  plaintiffs  at  the 
same  time  that  they  sent  this  part  of  the  bill  of  lading  to  Schneider, 
informed  Crane  of  their  having  so  done,  and  required  him,  in  case  he 
did  not  give  the  security,  to  deliver  to  Schneider  the  bill  of  lading  that 
had  been  sent  to  him,  Crane.  In  fact  Crane  had  become  a  bankrupt 
before  the  goods  were  delivered  on  board  the  ship  in  Russia,  but  after 
their  purchase  ;  and  on  the  arrival  of  the  ship  in  the  Thames,  Schneider 
demanded  the  goods  of  the  master,  who  refused  to  deliver  them  to  him, 
and  delivered  them  to  the  defendants. 

For  the  benefit  of  trade  a  rule  has  been  introduced  into  the  common 
law,  enabling  the  consignor  in  case  of  the  insolvency  of  the  consignee 
to  stop  the  goods  consigned  before  they  come  into  the  possession  of 
the  consignee  ;  which  possession  Mr.  Justice  Buller,  in  Ellis  v.  Hunt, 
says  means  an  actual  possession.  That  the  possession  of  a  carrier  is 
not  such  a  possession  has  been  repeatedly  determined  ;  and  the  ques- 
tion now  is,  whether  the  possession  of  the  master  be  anything  more 
than  the  possession  of  a  carrier,  and  not  the  actual  possession  of  the 
bankrupt.  And  to  this,  it  appears  that  Usherwood,  the  master,  con- 
tracted with  the  bankrupt  to  proceed  from  hence  to  Petersburg,  and 
to  bring  in  his  ship  a  cargo  of  goods,  which  Crane  engaged  should 
amount  to  the  tonnage  of  the  ship  ;  which  does  not  differ  from  a  similar 
contract  entered  into  by  the  consignor  by  the  directions  of  the  con- 
signee at  the  loading  port,  for  the  conveyance  of  the  goods  from  him 
to  the  vendee  :  in  which  case  it  would  hardly  be  contended  that  a  deli- 
very by  the  consignor  to  the  master  of  the  ship  for  the  purpose  of 
carriage  would  be  such  a  delivery  to  the  vendee  as  to  prevent  the  right 
of  stoppage  in  transitu.  In  each  case  the  freight  would  be  to  be  paid 
by  the  consignee  ;  in  each  case  the  ship  would  be  hired  by  him  ;  and 
there  would  be  no  difference,  except  that  in  this  case  the  ship  in  con- 
sequence of  the  agreement  goes  from  England  to  fetch  the  cargo  ;  in 
the  other  case  the  vessel  would  bring  it  immediately  from  the  loading 
port :  both  in  the  one  case  and  in  the  other  the  contract  is  with  the 
master  for  the  carriage  of  goods  from  one  place  to  another  ;  and  until 
the  arrival  of  the  goods  at  their  port  of  destination  and  delivery  to  the 
consignee,  they  are  in  their  passage  or  transit  from  the  consignor  to 
the  consignee.  If  a  man  contract  with  the  owner  of  a  general  ship  to 
take  goods,  which  are  equal  to  half  the  tonnage  of  the  ship,  and  the 
master  complete  the  loading  of  his  ship  with  the  goods  of  others,  there 
would  be  no  question  but  that  there  might  be  such  stoppage  ;  and 
surely  it  will  not  be  said  that  the  right  of  stoppage  depends  on  the 
quantity  of  the  goods  consigned.  In  support  of  the  defendant's  claim 
the  case  of  Fowler  v.  M'Taggart,  1  East.  522.  has  been  relied  on.  The 
more  proper  name  of  that  case  is  Fowler  r.  Kymer  </  <<1. .  which  was  tried 
before  Mr.  Justice  Grose  at  Bristol ;  but  that  case  is  very  distinguishable 

25 


386  BOHTLTXGK    V.    INGLIS.  [CHAP.  III. 

from  this.  There  the  bankrupts  Hunter  &  Co.  were  in  possession  of  a 
ship  let  to  them  for  a  term  of  three  years,  at  £52  10s.  per  month,  they 
finding  stock  and  provisions  for  the  ship,  and  paying  the  master  ;  during 
which  time  the}-  were  to  have  the  entire  disposition  of  the  ship  and  the 
complete  control  over  her.  The  ship  had  been  one  voyage  to  Alexandria, 
and  had  the  goods  put  on  board  of  her,  to  carry  them  on  another  voy- 
age to  the  place;  not  for  the  purpose  of  conveying  them  from  the 
plaintiffs  to  the  bankrupts,  but  that  they  might  be  sent  by  the  bank- 
rupts upon  a  mercantile  adventure,  for  which  they  had  bought  them. 
There  the  delivery  was  complete  ;  and  the  facts  of  that  case  differ 
widely  from  this,  where  Crane  had  no  control  over  the  ship,  and  had 
merely  contracted  with  the  master  to  employ  his  ship  in  fetching  goods 
for  him. 

The  case  of  Stokes  v.  La  Riviere  and  Lawley,  3  T.  R.  4G6,  is  much 
stronger  than  this.  The  plaintiff  being  a  ribbon-weaver,  Messrs.  Duhem 
of  Lisle  who  had  just  arrived  in  London  applied  to  him  for  a  quantity  of 
ribbons,  who  on  a  favorable  account  by  the  defendants  of  their  circum- 
stances packed  up  goods  to  the  amount  of  £186  8s.  9d.,  and  delivered 
them  to  the  defendants  to  be  forwarded  to  Lisle.  These  goods,  with  others 
purchased  in  like  manner  of  Twigge,  Ellis,  &  Edwards,  gauze-weavers, 
to  the  amount  of  £650,  were  forwarded  on  or  about  the  12th  of  May  to 
Messrs.  Bine  &  Overman,  the  defendants'  correspondents  at  Ostend, 
with  directions  to  send  them  to  the  order  of  Messrs.  Duhem.  On  the 
receipt  of  which  goods,  viz.  on  the  29th  of  May,  Bine  &  Overman 
wrote  to  Duhems  an  acknowledgment,  and  that  they  waited  their  direc- 
tions. On  the  12th  of  June  the  Duhems  stopped  payment;  and  by  an 
instrument  signed  the  13th  of  August  consented  to  Twigge's  taking 
back  hts  gauzes,  amounting  to  £419  18s.  1\d.  But  not  having  ful- 
filled some  engagement  with  the  defendants,  and  being  considerably 
indebted  to  them,  the  defendants  countermanded  the  orders  they  had 
given  to  Bine,  Overman,  &  Co.,  as  to  the  delivery  of  the  goods,  by 
letter  of  the  31st  of  May,  and  directed  them  to  alter  the  marks,  and 
to  deliver  them  to  their  order ;  which  was  accordingly  done,  and 
they  were  afterwards  disposed  of  in  satisfaction  of  the  defendants' 
demand  :  they  contending  that  immediately  upon  the  delivery  of  the 
goods  by  the  plaintiff  to  them,  the  property  vested  in  Messrs.  Duhem, 
and  that  they,  the  defendants,  had  a  right  to  retain  them.  This  cause 
was  tried  at  Guildhall  on  Saturday,  the  18th  of  December,  1784,  when 
Lord  Mansfield  said:  "The  fact  I  take  to  be  this:  The  Duhems 
bought  goods  of  the  plaintiff,  which  were  ordered  to  be  delivered  to  the 
defendants  to  be  shipped  to  Duhems,  who  are  since  become  insolvent, 
after  the  goods  were  sent  to  a  factor  at  Ostend.  The  defendants  who 
have  got  them  back  again  stand  as  they  originally  did.  No  point  is 
more  clear  than  that  if  goods  are  sold,  and  the  price  not  paid,  the  seller 
may  stop  them  in  transitu  ;  I  mean  in  every  sort  of  passage  to  the  hands 
of  the  buyers.  There  have  been  a  hundred  cases  of  this  sort.  Ships 
in  harbor,  carriers,  bills  have  been  stopped.     In  short,  where  the  goods 


CHAP.  III.]  BOHTLINGK    V.    INGLIS.  387 

are  in  transitu  the  seller  has  that  proprietary  lien.  The  goods  are  in 
the  hands  of  the  defendants  to  be  conveyed;  the  owner  may  get  them 
back  again. 

The  case  of  Inglis  and  Usherwood,  1  East.  515,  is  perfectly  consistent 
with  the  opinion  we  have  formed.  That  case  did  not  decide,  as  was  sup- 
posed in  the  argument,  that  the  transit  was  complete  on  the  delivery  of 
the  goods  on  hoard  the  ship  ;  for  it  was  determined  on  the  ground  that 
the  Russian  laws  authorized  the  taking  of  the  goods,  even  if  the  delivery 
had  been  complete.  In  that  case  Lord  Kenyon  says:  "Giving  the 
plaintiff  the  full  benefit  of  the  argument  that  the  delivery  of  the  goods 
on  board  a  chartered  ship  was  a  delivery  to  the  bankrupt,  still  the 
Russian  ordinance  takes  it  out  of  the  rule."  Mr.  Justice  Grose  uses 
more  general  expressions,  from  whence  it  may  be  inferred  that  he  con- 
sidered the  ship  as  one,  a  delivery  on  board  of  which  was  a  delivery  to 
the  defendant ;  but  that  it  was  not  the  true  way  in  which  his  opinion 
is  to  be  understood.  The  case  of  Fowler  v.  Kymer  and  M'Taggart  had 
been  cited,  in  reference  to  which  he  was  speaking :  and  he  is  not  to  be 
taken  as  laying  down  an\r  proposition  beyond  what  was  established  by 
that  case  ;  and  supposing  the  delivery  to  be  similar  to  that  in  Fowler  v. 
Kymer,  he  took  the  same  ground  that  Lord  Kenyon  did,  and  decided 
that,  notwithstanding  such  delivery,  the  goods  by  the  law  of  Russia 
were  in  transitu.  In  the  account  of  what  I  am  stated  to  have  said,  I 
observe  that,  without  naming  the  case,  I  recognized  the  authority  of 
Fowler  v.  Kymer  to  the  extent  that  case  goes  ;  namely,  that  if  one 
purchase  goods  here  to  be  sent  abroad,  and  they  are  delivered  on 
board  a  chartered  ship  in  a  port  of  this  kingdom,  such  delivery  is  in 
effect  a  delivery  to  the  vendee  :  and  I  gave  it  as  nry  opinion,  that  if 
the  delivery  in  the  case  then  before  us  were  a  delivery,  which  in  this 
country  would  have  been  a  delivery  to  the  vendee,  still,  according  to 
the  laws  of  Russia,  the  goods  might  be  stopped.  And  my  brother 
Le  Blanc's  opinion  goes  entirely  on  the  laws  of  Russia ;  without  inquir 
ing  how  far  the  case  then  before  the  court  was  distinguishable  from 
those  cited  in  an}-  other  respect.  For  these  reasons  I  am  of  opinion 
that  the  postea  should  be  delivered  to  the  [plaintiffs  ;  in  which  opinion 
my  brothers  Grose  and  Le  Blanc  concur.  In  the  view  we  have  of  the 
subject  it  is  not  necessary  to  say  anything  on  the  other  point,  as  to 
the  admissibility  in  evidence  of  the  opinion  of  the  judges  of  the  Russian 
custom-house ;  with  respect  to  which  we  form  no  opinion. 

Postea  to  the  plaintiff s.1 

1  The  statement  of  the  case  and  a  portion  of  the  opinion  are  omitted. 


338  MATTER   OF   WESTZINTHUS   AND   OTHERS.  [CHAP.  III. 


In  the  Matter  of  ARBITRATION  BETWEEN  WESTZINTHUS 
and   THE   ASSIGNEES  OF   LAPAGE  &   CO. 

In  the  King's  Bench,  Michaelmas  Term,   1833. 

[Reported  in  5  Barnewall  6f  Adol plats,  817.] 

Br  rule  of  this  court,  certain  matters  in  dispute  between  Westzin- 
thus  and  the  assignees  of  Lapage  &  Co.,  and  between  Rogers  &  Co. 
and  the  same  assignees,  were  referred  to  an  arbitrator,  who  stated  the 
following  facts  upon  his  award  :  — 

In  February,  1831,  Westzinthus  shipped,  at  Leghorn,  twenty-three 
casks  of  oil,  by  the  ship  "  Sarah,"  to  John  and  Frederick  Lapage,  who 
then  carried  on  business  as  merchants  in  Liverpool  under  the  firm  of 
Lapage  &  Co.,  in  execution  of  an  order  transmitted  by  them  to  him, 
and  at  the  same  time  drew  a  bill  of  exchange  on  them  for  the  amount 
of  the  invoice  of  the  oil.  This  bill,  together  with  the  bill  of  lading  for 
the  oil,  was  transmitted  to  certain  agents  of  Westzinthus,  with  instruc- 
tions to  deliver  the  bill  of  lading  to  Lapage  &  Co.  upon  their  accept- 
ing the  bill  of  exchange  so  drawn  on  them  ;  and  accordingly  Lapage 
&  Co.  accepted  the  bill  of  exchange,  and  the  bill  of  lading  was  deliv- 
ered to  them. 

Messrs.  Hardman  &  Co.,  brokers  in  Liverpool,  were  in  the  habit  of 
making  advances  in  cash,  and  by  acceptances,  to  Lapage  &  Co. 
upon  goods  placed  by  them  in  the  hands  of  Hardman  &  Co.  for  sale. 
Under  this  course  of  dealiug,  the  transactions  hereinafter  mentioned 
took  place.  On  the  14th  of  March,  1831,  Hardman  &  Co.  were 
under  cash  advances  and  had  accepted  for  Lapage  &  Co.  to  the 
amount  of  about  £6,700  upon  various  goods,  all  of  which  were  in  the 
i  ii  -session  of  Hardman  &  Co.  On  the  14th  of  March,  1831,  Hardman  & 
Co..  at  the  request  of  Lapage  &  Co.,  accepted  their  draft  for  <£l,500, 
falling  due  the  15th  of  July  (which  was  duly  paid  at  maturity),  as  a 
further  advance  upon  the  goods  already  in  the  hands  of  Hardman  .V 
Co.,  and  also  on  the  said  twenty-three  casks  of  oil  by  the  "Sarah," 
which  had  not  then  arrived  :  the  bill  of  lading  of  the  oil  by  the  "  Sarah  " 
was,  on  the  same  14th  of  March,  duly  indorsed  and  delivered  by 
Lapage  &  Co.  to  II.  &  Co.  According  to  the  agreement,  and  the 
course  of  business  between  Lapage  &  Co.  and  II.  &  Co.,  the  latter 
were  entitled  to  hold  all  the  goods  and  bills  of  lading  as  a  security  for 
their  advances.  On  the  16th  of  March,  1831,  a  similar  advance  was 
made  by  II.  &  Co  of  £1,000,  on  which  occasion  a  bill  of  lading  of 
certain  oil,  then  expected  by  the  ship  •' Frederick,"  was  handed  and 
indorsed  to  II.  &  Co.  by  Lapage  &  Co.  The  facts  and  questions  as 
to  this  oil  were  the  same  as  those  relating  to  that  by  the  l'  Sarah,"  and 
ii  was  to  abide  the  event  of  the  award  as  to  the  oil  by  the  "  Sarah." 
(In   the   19th  of  March,    1831,   Lapage  &  Co.  committed  acts  of 


CHAP.  III.]  MATTER   OF   WESTZINTHUS    AXD    OTHERS.  3S9 

bankrupted;  and  their  acceptance  of  Westzinthus's  bill  was  dishon- 
ored at  maturity:  On  the  26th  of  March  a  commission  of  bankrupt 
was  issued  against  them.  On  the  24th  of  March  Uk?  "  Surah"'  arrived 
at  Liverpool ;  and  on  the  same  day  the  agents  for  Westzinthus,  who 
held  an  indorsed  part  of  the  bill  of  lading,  gave  notice  to  the  captain, 
in  consequence  of  the  failure  of  Lapage  &  Co.,  not  to  deliver  the  oil 
to  them  ;  and  they  also  demanded  the  delivery  of  the  oil  to  be  made  to 
them  as  agents  of  M.  Westzinthus  under  the  bill  of  lading  held  by 
them,  and  tendered  the  captain  the  amount  of  the  freight;  but  no  ten- 
der or  offer  was  made  to  Ilardman  &  Co.  to  repay  any  part  of  the 
money  advanced  as  hereinbefore  mentioned.  Ou  the  7th  of  April, 
1831,  the  solicitors  of  Westzinthus  wrote  a  letter  to  Hardman  &  Co., 
demanding  that  all  other  securities  in  their  hands  be  first  applied 
in  satisfaction  of  the  £1,500  advanced  by  them,  and  that  in  any  event 
any  balance  remaining  from  the  proceeds  of  the  oil  after  satisfying 
their  claim  be  not  paid  over  to  the  assignees  of  Lapage  &  Co.1 
After  the  delivery  of  the  oil  had  been  stopped,  the  captain,  on  the 
27th  of  March,  delivered  the  oil  to  Hardman  &  Co.  under  an  indem- 
nity. At  the  time  of  the  bankruptcy  of  Lapage  &  Co.,  they  were 
indebted  to  Ilardman  &  Co.  in  the  sum  of  £9,271,  advanced  in  the 
manner  before  described ;  and  as  security  for  this  sum,  they  held 
goods  of  Lapage  &  Co.  which  had  actually  arrived,  of  which  the  net 
proceeds,  when  sold  as  after  mentioned,  were  £9,961  Is.  Id.  ;  they  also 
held  the  bill  of  lading  of  the  oil  by  the  "  Sarah,"'  of  which  the  net  pro- 
ceeds, when  sold  as  hereinafter  mentioned,  were  £331  7s.  Id.  ;  and  the 
bill  of  lading  of  the  oil  by  the  "  Frederick,"  of  which  the  net  proceeds, 
when  sold  as  hereinafter  mentioned,  were  £1,106  10s.  lOd.  After  the 
arrival  of  the  oil  by  the  "  Sarah  "  and  by  the  "  Frederick,"  H.  &  Co.  sold 
all  such  oil  and  other  goods  ;  the  net  proceeds  of  which  amounted  re- 
spectively to  the  before-mentioned  sums,  making  a  total  of  £11,399. 
14  Out  of  this  sum,  H.  &  Co.  have  paid  themselves  £9,271  due  to 
them  as  aforesaid;  they  have  deposited  £1,437  18s.  5d.  (the  amount  of 
the  two  parcels  of  oil  in  dispute)  to  abide  the  event  of  this  award,  and 
have  paid  over  the  residue  to  the  assignees  of  Lapage  &  Co.  The 
goods,  other  than  those  by  the  '  Sarah '  and  'Frederick'  which  II.  & 
Co.  had  sold  as  aforesaid,  had  been  sold  by  different  persons  to  Lapage 
&  Co.,  and  not  paid  for  ;  and  such  vendors,  at  the  time  of  the  bank- 
ruptcy, were  creditors  of  Lapage  &  Co.  for  the  amount.  The  bills 
drawn  by  Westzinthus  and  by  Rogers  &  Co.  for  the  amounts  of  the 
oil  by  the  '  Sarah  '  and  the  w  Frederick,'  have  not  been  paid  or  nego- 
tiated ;  but  are  still  in  the  hands  of  the  drawers  or  their  agetits." 

The  arbitrator  was  of  opinion  that  Westzinthus  and  Rogers  & 
Co.  were  respectively  entitled  to  £1*  13s.  1  \-<l.  per  cent  on  the  respec- 
tive proceeds  of  the  goods  per  the  "  Sarah  "  and  the  "  Frederick  "  (  being 
such  part  of  the  said  proceeds  as  bore  to  the  whole  the  same  propor- 


1  Iu  the  report  the  letter  is  given  verbatim. 


390  MATTEB    OF   WESTZINTHUS   A.ND   OTHERS.  [CHAP.  III. 

tion  which  the  excess  of  the  whole  proceeds  of  the  goods  sold  by  H. 
&   Co.  over   the  debt   to    them    from    Lapage  &    Co.  bore    to    such 
whole  proceeds),  and  ought  to  stand  in  the  situation  of  creditors  of 
Lapage  &  Co.,  for  the  residue  of  such  proceeds  of  the  goods  by  the 
"Sarah"  ami  the  "Frederick"  respectively:   he  then  awarded   and 
directed  that  the  sums  of  £61  17s.  3d.  and  £206   lis.  7cl.  (being  such 
percentage  as  aforesaid),  together  with  such  sums  as  any  dividends 
already    declared    under   the    bankruptcy   of    Lapage  &    Co.  on    the 
residue  of  such  amounts  of  the  said  goods  respectively  (that  is  to  say, 
on  the  sums  of  £296   10s.  M.  and  £899  19s.  3d.)   would  amount  to, 
should  be  paid  to  Westzinthus   and  Rogers  &  Co.  respectively  ;  and 
that  the  residue  of  such  disputed  sums  should  be  paid  to  the  assignees 
of  Lapage  &  Co;  and  that  Westzinthus   and   Rogers  &   Co.   should 
be  respectively  paid  such  dividends  as  should  thereafter  be  declared 
under  the  bankruptcy  on  such  last-mentioned  part  of  the  sums  in  dis- 
pute ;  and  that  the  said  bills  of  exchange  should  be  delivered  to  the 
assignees.     But  if  this  court  should  be  of  opinion  that  Westzinthus 
and" Rogers   &   Co.  were  entitled  to  the  whole  proceeds  of  the  said 
goods  respectively,  then  the  arbitrator  awarded  that  such  proceeds 
should  be  respectively  paid  to  them,  and  the  said  bills  of  exchange 
delivered  to  the  said  assignees  ;  or  if  the  court  should  be  of  opinion  that 
Westzinthus  and  Rogers  &  Co.  were  not  entitled,  under  their  stoppage 
in  transitu,  to  any  part  of  the  proceeds  of  such  goods  respectively, 
then  he  awarded  that  so  much  of  the  said  proceeds  as  the  dividends 
already  declared  on  the  whole  sums  for  which   the  said  goods  were 
sold  by  Westzinthus  and  Rogers  &  Co.  respectively  to  Lapage  &   Co., 
amounted   to,    should    be    paid    to    Westzinthus    and    Rogers   &    Co. 
respectively ;  and  the  residue  thereof  to  the  said  assignees,  who  were 
to  pay  to  Westzinthus  and  to  Rogers  &  Co.  such  dividends  as  should 
thereafter  be  declared  upon  such  whole  sums  respectively. 

F.  Pollock,  for  the  assignees  of  Lapage  &  Co. 

J.  II.  Lloyd,  for  Westzinthus  and  Rogers  &  Co. 

Cur.  adv.  vult. 

Denman,  C.  J.,  in  this  term  (November  25th)  delivered  the  judgment 
of  the  court :  — 

In  this  case  Westzinthus,  who  was  the  unpaid  vendor  at  the  time 
when  his  agents  made  the  demand  on  the  master  of  the  vessel  on 
board  which  the  oil  was,  had  no  right  to  take  possession  on  the  insol- 
vency of  the  vendee,  Lapage,  because  the  property  in,  and  also  the 
right  to  the  possession  of,  the  goods,  was  unquestionably  vested  at 
that  time  in  Ilardman,  the  indorsee  of  the  bill  of  lading,  for  a  valu- 
able consideration.  The  demand,  therefore,  of  Westzinthus  gave  him 
no  legal  right  to  the  property  or  possession  of  the  goods ;  and  it  ap- 
pears to  us  that  he  can  have  no  claim  at  law,  except  as  arising  out  of 
the  right  of  retaking  the  possession  of  the  goods  themselves,  which 
right  was  determined  by  the  indorsement  of  the  bill  of  lading.     It  is 


CIIAF.  III.]  MATTER   OF   WESTZINTHUS    AXD    OTHERS.  391 

not  necessary  to  determine  what  would  have  been  his  situation,  if 
either  Lapage  or  himself  had  paid  off  Hardman's  demand,  prior  to  the 
notice  given  to  the  master,  or  to  the  actual  receipt  of  the  goods  by  the 
vendee. 

But  it  is  very  properly  urged,  in  the  able  argument  in  support  of 
Westzinthus's  claim,  that  every  question  of  equity,  as  well  as  of  law, 
was  referred  to  the  arbitrator,  and  that  the  unpaid  vendor  had,  under 
the  circumstances,  an  equitable  title  to  the  goods,  by  virtue  of  the 
attempted  stoppage,  subject  to  Hardman's  right  thereto  ;  and  also  an 
equitable  right  to  compel  Ilardmau,  the  creditor,  to  pay  himself  out  of 
Lapage's  own  property,  which  all  the  other  goods  (except  those  of 
Messrs.  Rogers  &  Co.,  whose  claim  abides  the  decision  of  this)  cer- 
tainly were.  The  learned  arbitrator  appears  to  have  decided  in  favor  of 
Westzinthus  to  this  extent,  —  that  he  had,  by  virtue  of  the  demand  or 
attempted  stoppage  in  transitu,  a  preferable  right,  either  at  law  or  in 
equity,  to  the  general  creditors  of  Lapage.;  but  he  has  allowed  him 
only  a  proportion  of  the  proceeds  of  his  goods,  thinking  that  all  the 
goods  deposited  by  Lapage  with  Hardman  should  be  proportionably 
charged  with  the  payment  of  the  debt  due  to  him.  He  has,  therefore, 
deducted  £81  6s.  l^d.  per  cent  of  the  proceeds  of  Westzinthus's 
goods,  being  the  proportion  which  the  debt  due  to  Hardman  bears  to 
all  the  proceeds,  and  directed  the  remainder  to  be  paid  over  to  him  ; 
and  has,  therefore,  disallowed  the  equity  claimed  by  Westzinthus  to 
oblige  Hardman  to  pay  himself  out  of  Lapage's  own  goods. 

We  think  that  the  arbitrator  was  right  in  allowing  Westzinthus  to 
be  in  a  better  condition  than  the  other  creditors,  but  wrong  in  disal- 
lowing his  claim  to  have  all  the  proceeds  paid  over  to  him. 

As  AVestzinthus  would  have  had  a  clear  right  at  law  to  resume  the 
possession  of  the  goods  on  the  insolvency  of  the  vendee,  had  it  not 
been  for  the  transfer  of  the  property  and  right  of  possession  by  the 
indorsement  of  the  bill  of  lading,  for  a  valuable  consideration,  to 
Hardman,  it  appears  to  us  that,  in  a  court  of  equity,  such  transfer 
would  be  treated  as  a  pledge,  or  mortgage,  only,  and  Westzinthus 
would  be  considered  as  having  resumed  his  former  interest  in  the 
goods,  subject  to  that  pledge  or  mortgage  ;  in  analogy  to  the  common 
case  of  a  mortgage  of  a  real  estate,  which  is  considered  as  a  mere 
security,  and  the  mortgagor  as  the  owner  of  the  land.  We  therefore 
think  that  Westzinthus,  by  his  attempted  stoppage  in  transitu,  acquired 
a  right  to  the  goods  in  equity  (subject  to  Hardman's  lien  thereon)  as 
against  Lapage,  and  his  assignees,  who  are  bound  by  the  same  equities 
that  Lapage  himself  was.  And  this  view  of  the  case  agrees  with  the 
opinion  of  Mr.  Justice  Buller,  in  his  comment  on  the  case  of  Snee  v. 
Prescot  in  Lickbarrow  v.  Mason,  6  East,  29  note. 

If,  then,  Westzinthus  had  an  equitable  right  to  the  oil,  subject  to 
Hardman's  lien  thereon  for  his  debt,  he  would,  by  means  of  his  goods. 
have  become  a  surety  to  Hardman  for  Lapage's  debt,  and  would  then 
have   a  clear   equity  to    oblige    Hardman    to   have   recourse    against 


392  SPALDING   V.    RUDING.  [CHAP.  III. 

Lapage's  own  goods,  deposited  with  him,  to  pay  his  debt  in  ease  of 
the  surety  ;  and  all  the  goods,  both  of  Lapage  and  Westzinthus,  hav- 
ing been  sold,  he  would  have  a  right  to  insist  upon  the  proceeds  of 
Lapage's  goods  being  appropriated,  in  the  first  instance,  to  the  pay- 
ment of  the  debt. 

The  result  is,  that  Mr.  Lloyd's  rule  must  be  made  absolute,  and 
Mr.  Pollock's  discharged.  Rules  accordingly. 


SPALDING  u.  RUDING. 
In  Chancery,  coram  Lord  Langdale,  March  24,  25,  July  8,  1843. 

[Reported  in  6  Beavan,  376.] 

The  plaintiffs  were  merchants  residing  at  Stralsund.  On  the  17th  of 
May,  1841,  their  agent,  Mr.  Schleicher,  on  their  behalf,  sold  to  James 
Williams  Thomas  a  quantity  of  wheat  at  35s.  per  quarter,  free  on  board, 
the  shipment  to  be  made  forthwith  to  London,  at  the  current  rate  of 
freight,  and  the  amount  to  be  drawn  for  on  Thomas  at  three  months' 
date,  payable  in  London,  on  handing  invoice  and  bill  of  lading. 

The  plaintiffs  accordingly,  on  the  1st  of  June,  1841,  shipped  at  Stral- 
sund, by  the  ship  "Ceres,"  714  quarters  of  wheat ;  a  bill  of  lading  was 
signed  by  Zillmer,  the  master  of  the  ship,  in  the  usual  form  ;  and  the 
plaintiffs,  having  made  out  and  signed  an  invoice  of  the  wheat,  sent  the 
same  with  the  bill  of  lading  to  Thomas,  and,  at  the  same  time,  drew 
upon  him  three  bills  for  the  amount  in  the  whole  of  £1,2G4  2s. ;  and  by 
letter  requested  Thomas  to  protect  those  bills. 

Thomas  received  the  bill  of  lading  and  invoice  on  the  8th  of  June, 
1841,  and  he  thereupon  requested  Ruding  to  accept  for  him  a  bill  of 
exchange  for  £1,000,  payable  at  three  months  after  date,  which  Ruding 
agreed  to  do  on  receiving  from  Thomas  a  memorandum  or  letter  signed 
by  Thomas  to  this  effect :  — 

London,  9th  June,  1841. 
Messrs.  J.  C.  Ruding  and  Son. 

Gentlemen,  —  In  consideration  of  your  having  this  day  accepted 
my  draft  on  you  at  three  months'  date  for  £1,000  on  a  cargo  of  wheat 
(viz.  3,825  schefTels),  from  Stralsund  per  the  "Ceres,"  J.  II.  Zillmer,  of 
which  I  have  handed  you  the  policy  of  insurance  for  £1,G00  and  a  bill 
of  lading,  I  authorize  you  to  dispose  of  the  same  on  my  account,  subject 
to  your  usual  commission  and  charges,  before  such  bill  becomes  due  ; 
or,  I  undertake  to  provide  you  with  cash  to  the  amount  of  your  advance, 
should  I  wish  you  to  hold  it  beyond  that  time. 

James  W.  Thomas. 

On  the  1st  of  July,  1  SI  1 ,  the  ship  "Ceres,"  with  the  wheat  on  board, 
arrived  in  the  port  of  London.     About  this  time,  Mr.  Thomas  stopped 


CHAP.  III.]  SPALDING    V.    RUDING.  393 

payment.  On  the  2d  of  July,  Schleicher,  the  agent  of  the  plaintiffs, 
gave  a  verbal  notice,  and  on  the  3d  of  July,  a  written  notice  to  Zillmer, 
the  master  of  the  "  Ceres,"  not  to  part  with  the  wheat,  without  the 
orders  of  the  plaintiffs.  On  the  5th  of  July,  a  fiat  of  bankruptcy  was 
issued  against  Thomas,  and  on  the  same  day  Schleicher  again  gave 
notice  to  the  master  not  to  part  with  the  wheat,  but  being  then  informed 
that  the  bill  of  lading  had  been  indorsed  and  delivered  to  Ruding  as  a 
security  for  moneys  lent,  he  permitted  the  wheat  to  be  delivered  to 
Railing,  but  on  the  same  day  gave  him  notice  that  the  plaintiffs  claimed 
to  be  entitled  to  the  wheat  and  the  proceeds  thereof,  and  did  not,  by 
removing  the  stop  placed  upon  the  delivery  to  Ruding,  abandon  their 
claim,  and  that  in  case  Ruding  should  be  entitled  by  law  to  any  part  of 
such  proceeds,  the  plaintiffs  claimed  the  balance  which  should  remain 
after  satisfying  such  claim,  if  any,  as  Ruding  might  by  law  have. 

Ruding  claimed  to  be  entitled  to  apply  the  proceeds  of  the  wheat,  not 
only  in  payment  of  the  .£1,000  bill  which  he  had  accepted,  and  the 
freight  and  other  charges  of  the  shipment,  but  also  in  satisfaction  of  the 
balance  of  a  general  account  which  he  alleged  to  be  subsisting  between 
himself  and  Thomas.  Under  these  circumstances,  the  plaintiffs  offered 
to  pay  him  £1,200  in  satisfaction  of  his  acceptance  and  the  charges  on 
the  wheat,  and  requested  to  have  the  wheat  thereupon  delivered  to  them. 
This  was  on  the  23d  of  July.  Mr.  Ruding  refused  to  accept  the  money 
offered  to  him,  or  to  deliver  up  the  wheat,  and  he  afterwards,  on  the 
21st  of  August,  1841,  sold  it  for  £1,822,  which  he  retained  to  his  own 
use.  Having  subsequently,  in  December,  1841,  declined  to  acknowledge 
that  the  plaintiffs  had  any  claim  whatever,  this  bill  was  filed  on  the  31st 
of  December,  1841. 

The  bill  prayed  that  an  account  might  be  taken  of  the  moneys  which 
had  come  to  the  hands  of  the  defendant  Ruding,  in  respect  of  the  wheat, 
and  also  of  the  moneys  due  to  the  same  defendant  on  the  security  of  the 
bill  of  lading.  That  the  defendant  might  be  allowed  such  last-mentioned 
moneys,  and  might  pay  to  the  plaintiffs  the  balance  of  the  moneys  arising 
from  the  wheat. 

Mr.  Pemberton  Leigh  and  Mr.  Wood,  for  the  plaintiffs. 

Mr.  G.  Turner  and  Mr.  Fisher,  for  the  defendant,  Ruding. 

Mr.  Jlichner,  for  the  assignees  of  Thomas. 

The  Master  of  the  Rolls.  I  apprehend  it  to  be  clear,  that  the 
indorsement  and  delivery  of  the  bill  of  lading  by  Thomas,  the  consignee, 
to  Ruding  for  valuable  consideration,  gave  to  Ruding  the  legal  right  to 
the  delivery  and  possession  of  the  goods.  That  right  is  not  disputed 
by  this  bill,  but  the  plaintiffs  insist  that  under  the  contract  subsisting 
between  Thomas  and  Ruding,  the  right  to  the  possession  of  the  goods 
was  vested  in  Ruding,  only  as  a  security  for  the  repayment  to  him  of 
his  advance  and  charges,  and  that,  subject  to  that  security,  the  plaintiffs, 
in  the  consideration  of  a  court  of  equity,  retained  their  right  to  a  stop- 
page in  transitu,  against  the  assignee  or  indorsee  of  the  bill  of  lading  ; 
it  appears  that  in  the  case  of  YVestzinthus,  5  B.  &  Adol.  817,  the  Court 


394  BERXDTSON  V.    STRANG.  [CHAP.  III. 

of  Queen's  Bench  held,  that  in  such  a  case  a  court  of  equit}-  would 
hold  such  a  transfer  to  be  a  pledge  or  mortgage  only,  and  that  the 
attempt  to  stop  in  transitu  gave  a  right  to  the  goods,  in  equity,  subject 
only  to  the  lien  for  the  advance. 

The  propriety  of  that  opinion  was  questioned,  but,  as  it  appears  to 
me,  without  sufficient  reason.  As  against  Thomas,  I  think  that  the 
plaintiffs  had  a  right  to  stop  the  goods  in  transitu  ;  and,  although  the 
legal  right  to  the  goods  was  transferred  with  the  bill  of  lading,  yet  I 
think  that,  in  equity,  the  transfer  took  effect  only  to  the  extent  of  the 
consideration  paid  by  the  transferee,  leaving  in  the  plaintiffs  an  equitable 
interest  in  the  surplus  value. 

In  the  argument  for  the  defendants  it  was  urged  that  they,  in  the 
character  of  factors  for  Thomas,  had  an  interest  of  their  own  to  retain 
the  surplus  value  in  satisfaction  of  a  balance  due  to  them  from  Thomas  ; 
and,  secondl}',  that  an}'  interest  of  the  plaintiffs,  though  of  an  equitable 
nature,  might  be  made  available  in  an  action  to  be  brought  by  them 
against  the  defendants  in  this  cause  ;  but  the  goods  came  to  the  hands 
of  Ruding  under  a  special  contract,  interfering  with  any  general  right 
which  he  might  have  as  factor  ;  and,  even  if  the  defendants  were  entitled 
to  be  considered  as  factors  of  Thomas,  having  a  balance  due  to  them, 
it  does  not  appear  to  me  that,  as  against  the  plaintiffs,  the  owners  and 
shippers  of  the  goods  entitled  to  stop  in  transitu,  they  could,  b}-  virtue 
of  the  bill  of  lading,  have  a  right  to  retain  more  than  the  consideration 
the}*  paid  for  the  advantage  which  the  bill  of  lading  gave  them  ;  and, 
as  to  the  action,  the  legal  right  to  the  goods  being  clearly  in  the  defend- 
ants, it  does  not  appear  to  me  that  the  plaintiffs  could  have  obtained, 
at  law,  that  relief  which  I  think  them  entitled  to  here. 

I  am  therefore  of  opinion  that  the  plaintiffs  are  entitled  to  the  decree 
which  is  asked  b}T  the  bill,  and  that  an  account  must  be  taken  of  the 
moneys  received  by  the  defendants  in  respect  of  the  wheat  in  question, 
and  of  the  moneys  due  to  the  defendants  on  the  security  of  the  bill  of 
lading,  and  that  the  balance  may  be  ascertained  and  paid  to  the  plaintiffs 
by  the  defendants.1 


BERNDTSON  v.  STRANG. 
In  Chancery,  June  27,  28,  July  2,  1867. 

[Reported  in  Law  Reports,  4  Equity,  481.] 

Tins  was  a  suit  for  the  purpose  of  establishing  the  right  of  the  plain- 
tiff, by  virtue  of  the  exercise  of  his  right  of  stoppage  in  transitu,  to  a 
charge  in  equity  upon  the  proceeds  of  certain  timber  sold  by  him  to 
a  firm  in  London,  of  whom  the  defendants  were  the  assignees  under  a 
deed  for  the  benefit  of  creditors. 

1  This  decision  was  affirmed  by  Lord  Lyndhurst,  15  L.  J.  (Ch.)  374. 


CHAP.  III.]  BEENDTSON   V.    STRANG.  395 

The  facts,  which  were  not  in  dispute,  were  thus  stated  upon  the 
bill:  — 

The  plaintiff,  who  is  a  timber  merchant  of  Gefle,  in  Sweden,  through 
his  Paris  agent,  Charles  Von  Kock,  entered  into  a  contract  in  February, 
1863,  for  the  sale  to  Messrs.  Langton  &  Robinson,  a  London  firm,  of  a 
quantity  of  timber.  The  contract,  which  was  reduced  into  writing,  and 
signed  by  Messrs.  Langton  &  Robinson,  after  stating  the  quantities  of 
timber  and  the  prices,  proceeded  thus  :  — 

**  And  the  said  prices,  franco  on  bord,  payable  by  buyer's  acceptance 
of  seller's  drafts  at  six  months  from  date  of  bills  of  lading.  Shipment 
to  London.  Sellers  to  provide  ships  to  a  freight  not  exceeding  53s.  in 
full,  per  Petersburger  standard,  with  two  or  three  guineas  of  gratifica- 
tion per  100  Petersb.  stand,  in  case  of  need.  If  ships  cannot  be  char- 
tered within  this  limit,  the  contract  to  be  void." 

It  was  subsequently  agreed  that,  instead  of  Berndtson  providing  a 
ship  for  conveyance  of  the  timber,  Langton  &  Robinson  should  them- 
selves charter  a  vessel  to  convey  the  timber  from  Gefle  to  London. 

Messrs.  Langton  &  Robinson  accordingly  chartered  a  ship,  the 
"Maastrom,"  which   proceeded  to  Gefle,  and  on  the  22d  of  October, 

1863,  Berndtson  shipped  the  timber  on  board  of  her.  The  price  of  the 
timber  amounted  to  £1,589  12s.  6d.,  and  an  advance  of  £153  8s.  2d. 
was  made  by  Berndtson  to  the  captain  of  the  ship  on  account  of  the 
freight.  These  sums,  together  with  three  months'  interest  at  5  per  cent 
on  the  advance,  amounted  to  £1,744  19s.,  and  accordingly,  in  pursuance 
of  the  contract,  Berndtson,  on  the  22d  of  October,  1863,  drew  a  bill  of 
exchange  of  that  date  for  this  amount  upon  Langton  &  Robinson,  pay- 
able six  months  after  date.  At  the  same  time,  in  order,  as  the  bill 
alleged,  to  preserve  his  control  over  such  timber,  Berndtson  caused  the 
bill  of  lading  to  be  drawn  in  his  name  as  shipper  of  the  timber,  and 
the  same  was  therein-  made  deliverable  to  the  order  or  assigns  of 
Berndtson  dated  22d  of  October,  1863,  and  made  the  timber  deliver- 
able to  Berndtson's  order  or  assigns.1 

Berndtson  indorsed  this  bill  of  lading  in  blank,  and  caused  it  to  be 
handed  over  to  Langton  &  Robinson,  in  exchange  for  their  acceptance 
of  the  bill  of  exchange  for  £1 ,744  19s.  On  receipt  of  the  bill  of  lading 
Messrs.  Langton  &  Robinson  deposited  it,  together  with  a  policy  of 
insurance  of  the  cargo  of  timber  and  other  securities,  with  Messrs. 
Churchill  &  Sim,  as  a  security  for  repayment  of  moneys  due  to  them 
from  Langton  &  Robinson. 

The  tk  Maastrora,"  with  the  timber  on  board,  sailed  for  London,  but 
met  with  disasters  on  her  voyage,  got  stranded,  and  on  the  16th  of 
November,  1863,  was  forced  in  distress  to  put  into  the  port  of  Copen- 
hagen, where  she  remained  for  some  months.     On  the  16th  of  February, 

1864,  Langton  &  Co.  suspended  payment,  and  subsequently,  on  the  9th 

1  In  the  report  the  bill  of  lading  is  given  verbatim. 


396  BERNDTSON    V.    STRANG.  [CHAP.  III. 

of  September,  1864,  they  executed  a  deed  of  assignment  to  the  defend 
ants,  Strang,  Sieveking,  and  Pack,  as  trustees  for  the  benefit  of  their 
creditors.  While  the  "  Maastroin  "  was  still  lying  in  the  port  of  Copen- 
hagen, Berndtson  caused  the  captain  to  be  served  with  a  notice,  dated 
the  24th  of  March,  18G4,  to  stop  the  timber  in  transitu. 

On  the  26th  of  April,  18G4,  the  fcl  Maastrom"  arrived  in  the  Thames, 
whereupon  a  second  notice  of  stoppage  in  transitu  was  served  on 
board  the  ship  and  also  on  the  shipbrokers,  and  on  Messrs.  Churchill 
&  Sim. 

The  timber  was  taken  possession  of  by  Churchill  &  Sim  as  mort- 
gagees, and  a  sum  of  £1,276  15s.  6d.  was  produced  by  the  sale  of  it. 
The  proceeds  of  the  timber,  with  the  moneys  received  under  the  policy, 
amounting  in  all  to  £1,570,  had  been  paid  into  court  by  Messrs.  Churchill 
&  Sim,  who  had  been  satisfied  out  of  their  other  securities. 

The  bill  of  exchange  for  £1,744  19s.  was  dishonored  at  maturity. 

The  proceeds  of  the  timber  having  been  claimed  by  the  trustees  of 
the  creditors'  deed  executed  by  Langton  &  Robinson,  this  bill  was  filed 
by  Berndtson,  charging  that,  by  the  exercise  of  his  right  of  stopping  the 
timber  in  transitu,  he  was  entitled  in  equity  to  a  valid  and  subsisting 
charge  for  the  money  due  in  respect  of  the  price  of  the  timber,  and 
praying  relief  upon  this  footing. 

A  dividend  of  bs.  in  the  pound  on  the  whole  amount  of  his  claim  on 
the  estate  had  been  paid  to  the  plaintiff  by  the  trustees  of  the  creditors' 
deed  without  prejudice. 

Mr.  G.  M.  Giffard,  Q.  C,  and  Mr.  Kay,  Q.  C,  for  the  plaintiff. 

Mr.  Druce,  Q.  C,  and  Mr.  Freeling,  for  the  defendants. 

Sir  W.  Page  Wood,  V.  C.  The  question  in  this  case  is,  whether  the 
plaintiff  is  entitled  to  such  a  declaration  as  was  made  in  Spalding  v. 
Ruding,  6  Beav.  376,  of  his  equitable  right  of  stoppage  in  transitu  over 
certain  timber  sold  by  him,  and  for  the  price  of  which  bills  of  exchange 
were  drawn,  which  were  unpaid  at  the  time  the  consignees  became  in- 
solvent: the  question  being  whether,  under  all  the  circumstances  of  the 
case,  the  consignees  having  simply  mortgaged  the  bills  of  lading,  which 
brings  the  case  so  far  within  Spalding  v.  Ruding,  the  plaintiff  is  entitled 
to  the  surplus  assets  as  against  the  defendants,  who  are  the  representa- 
tives, under  a  deed  of  composition,  of  the  original  consignees. 

Spalding  v.  Ruding  was,  I  think,  the  first  case  in  this  court  in  which 
this  right  was  asserted  as  against  property  which  had  so  far  passed  into 
the  hands  of  the  consignee  that  he  was  enabled  by  mortgage  of  the  bills 
of  lading  to  pass  the  interest  in  the  goods  to  the  extent  of  that  mort- 
gage ;  and  there  the  right  of  stoppage  in  transitu  was  upheld  as  against 
the  surplus. 

The  rase,  which  was  originally  decided  by  Lord  Langdale,  and 
affirmed  by  Lord  Lyndhurst,  was  no  doubt,  in  some  degree,  an  exten- 
sion of  what  was  supposed  to  be  the  right  of  the  consignor.  In  some 
of  the  cases  th.rc  were  dicta  which  seemed  to  show  that  by  the  indorse- 
ment of  the  bill  of  lading  in  such  a  manner  as  to  admit  of  a  dealing 


CHAP.  III.]  BERNDTSON   V.    STRANG.  39.7 

with  it,  :uk1  by  actual  dealing  with,  or  actual  negotiation  of  such  bill  of 
lading  to  a  bona  fide  transferee,  the  vendor's  right  to  stop  in  transitu 
would  be  defeated.  That  was  the  great  ground  of  argument  in  Spal- 
ding v.  Kuding,  supra,  and  I  mention  the  case  as  showing  the  extent 
to  which  the  right  has  been  upheld,  and  that  it  is  a  right  entirely 
distinguished  from  the  right  of  property  in  the  goods. 

The  plaintiff  in  this  case  sold  to  Messrs.  Langton,  who  have  become 
insolvent,  certain  timber  under  a  contract  of  sale,  specifying  the  price, 
'k  free  on  board,  payable  by  buyer's  acceptance  of  seller's  drafts  at  six 
months  from  date  of  bills  of  lading.  Shipment  to  London."  It  was 
also  provided  that  the  sellers  were  to  provide  ships. 

A  good  deal  was  said  about  these  words  "  free  on  hoard,"  but  as 
regards  the  original  contract  it  would  be  plain  enough  that  there  was 
no  intention  that  the  goods  should  be  at  their  destination  when  they 
were  free  on  board,  as  not  only  was  London  the  place  of  destination, 
but  the  seller  was  to  find  the  vessel,  and  undertook  that  the  goods 
should  be  delivered  in  London.  Although  the  property  in  the  goods 
might  well  pass  when  the  bill  of  lading  was  handed  over  in  exchange 
for  the  accepted  bills,  still  that  does  not  determine  the  question  as  to 
the  right  to  stoppage  in  transitu,  the  distinction  being  well  established 
upon  all  the  authorities,  and  especially  referred  to  in  Van  Casteel  v. 
Booker,  where,  during  the  argument,  Mr.  (now  Baron)  Martin,  so  far 
conceding  against  the  interest  of  his  client,  says  (2  Ex.  699)  :  '•  The 
general  rule  is  that  if  goods  are  shipped  on  board  a  chartered  vessel 
the  property  vests  in  the  consignee,  subject  to  the  right  of  stoppage  in 
transitu  ;  but  if  the  goods  are  placed  on  board  the  purchaser's  own 
ship,  that  is  an  absolute  delivery  —  the  same  as  if  placed  in  his  cart. 
The  shipper  may,  however,  protect  himself  by  taking  a  bill  of  lading 
making  the  goods  deliverable  to  his  own  order  only ;  but  in  that  case 
the  property  would  pass  as  soon  as  he  indorsed  the  bill  of  lading 
generally." 

In  the  same  way,  Lord  Chelmsford,  in  Schotsmans  v.  Lancashire  and 
Yorkshire  Railway  Company,  Law  Rep.  2  Ch.  337,  sa}S  in  reference  to 
the  case  of  Mitchel  v.  Ede,  11  Ad.  &  E.  888  :  "  It  appears  to  me  that 
this  case  was  not  decided  upon  the  distinction  between  a  general  ship 
and  one  sent  for  the  express  purpose  of  receiving  the  sugar ;  for  if  it 
had  been  a  question  of  stoppage  in  transitu  upon  a  sale  of  the  sugar 
to  the  defendants,  and  it  had  been  delivered  into  the  defendants'  own 
vessel,  sent  out  for  the  purpose,  although  the  property  in  the  goods 
would  have  passed,  yet  the  effect  of  the  delivery  would  have  been  re- 
strained by  the  indorsement  on  the  bill  of  lading,  and  the  right  to  stop 
in  transitu  would  have  been  preserved." 

Much  stress  has  been  laid  upon  those  words  "  free  on  board,"  as 
being  an  indication  of  the  nature  of  the  contract,  — that  the  traasitus 
was  at  an  end  when  the  goods  were  on  board  the  purchaser's  own  ship. 
But  those  words  cannot  have  any  such  effect  in  a  contract  framed  as 
tins  was,  where  the  intention,  as  expressed  by  the  contract,  was.  that 


39S  BEKXDTSON    V.    STRANG.  [CHAP.  III. 

there  was  to  be  no  delivery  on  board  the  purchaser's  own  ship,  as  the 
vendor  was  to  find  a  ship  (although  at  the  cost  of  the  purchaser),  and 
send  the  ship,  with  the  cargo,  to  London,  where  the  transitus  would 
be  at  an  end.  That  contract,  however,  was  varied  by  parol,  by  the 
arrangement  subsequently  made,  under  which  the  vendor  was  no  longer 
to  find  a  ship,  but  was  discharged  from  that  part  of  his  engagement. 
A  ship  chartered  by  the  purchaser  is  sent  out  from  London  for  the  pur- 
pose of  taking  on  board  this  cargo,  subject,  of  course,  to  the  payment 
of  freight  when  the  cargo  should  be  delivered  pursuant  to  the  charter- 
party.  That  being  so,  the  vendor  takes  the  additional  precaution,  not- 
withstanding the  purchaser  charters  the  ship,  of  taking  the  bill  of  lading 
in  this  form:  "Shipped  by  him  (the  vendor),  to  be  delivered  at  the 
port  of  London,  unto  order  or  to  assigns."  The  bill  of  lading  having 
been  taken  in  this  form,  the  bills  of  exchange  are  drawn  and  accepted, 
and  while  the  ship  was  on  her  voyage  the  bill  of  lading  was  indorsed  in 
blank  — a  circumstance  very  strongly  relied  upon  by  Mr.  Druce—  and 
delivered  to  the  purchaser  in  exchange  for  the  accepted  bills  of  ex- 
change. No  doubt  the  property  in  the  goods  would  pass,  but  that  does 
not  determine  the  question  whether  the  transitus  was  at  an  end.  With 
the  single  exception  that  the  bills  of  lading  are  made  out  in  the  name 
of  the  vendor  to  his  order,  or  assigns,  and  then  by  him  indorsed  in 
blank,  the  case  does  not  really  differ  from  Bohtlingk  v.  Inglis,  3  East, 
381,  nor  from  Spalding  v.  Ruding,  6  Beav.  376,  where  the  purchaser 
had  the  bill  of  lading  handed  over  to  him  so  as  to  vest  the  property 
in  him. 

Does,  then,  the  shipping  of  goods,  in  the  name  of  the  vendor,  and 
indorsing  over  the  bill  of  lading,  show  an  animus  on  the  part  of  the 
vendor  to  part  with  his  lien  and  abandon  his  right  of  stoppage  in 
transitu  f  Now  there  are  two  criteria,  as  it  appears  to  me,  with  re- 
spect to  the  stoppage  in  transitu,  viz.  :  whether  there  is  a  transitus  at 
all?  and  if  so,  where  it  is  to  end?  If  a  man  sends  his  own  ship,  and 
orders  the  goods  to  be  delivered  on  board  his  own  ship,  and  the  con- 
tract is  to  deliver  them  free  on  board,  then  the  ship  is  the  place  of 
delivery  and  the  transitus  is  at  end,  just  as  much  (as  was  said  in  Van 
Casteelv.  Booker,  2  Ex.  691,  as  if  the  purchaser  had  sent  his  own  cart, 
ns  distinguished  from  having  the  goods  put  into  the  cart  of  a  carrier. 
Of  course  there  is  no  further  transitus  after  the  goods  are  in  the  pur- 
chaser's own  cart.  There  they  are  at  home,  in  the  hands  of  the 
purchaser,  and  there  is  an  end  of  the  whole  delivery.  The  next  thing 
to  be  looked  to  is,  whether  there  is  any  intermediate  person  interposed 
between  the  vendor  and  the  purchaser.  Cases  no  doubt  may  arise, 
where  the  transitus  may  be  at  an  end  although  some  person  may  inter- 
vene between  the  period  of  actual  delivery  of  the  goods  and  the  pur- 
chaser's acquisition  of  them.  The  purchaser,  for  instance,  may  require 
the  goods  to  be  placed  on  board  a  ship  chartered  by  himself  and  about 
to  sail  on  a  roving  voyage.  In  that  case,  when  the  goods  are  on  board 
the  ship  everything  is  done ;  for  the  goods  have  been  put  in  the  place 


CHAP.  III.]  BEENDTSON   V.    STRANG. 


399 


indicated  by  the  purchaser,  and  there  is  an  end  of  the  transitu*.  But 
hoc  where  the  goods  are  to  be  delivered  in  London,  the  plaintiff,  for 
greater  security,  takes  the  bill  of  lading  in  his  own  name,  and,  being 
content  to  part  with  the  property  in  the  goods,  subject  or  not,  as  the 
case  may  be,  to  this  right  of  stoppage  in  transitu,  he  hands  over  the 
bill  of  lading  in  exchange  for  the  bill  of  exchange.  In  that  ordinary 
case  of  chartering  it  appears  to  me  that  the  captain  or  master  is  a  per- 
son interposed  between  vendor  and  purchaser  in  such  a  way  that  the 
transitus  is  not  at  an  end,  and  that  the  goods  will  not  be  parted  with, 
and  the  consignee  will  not  receive  them  into  his  possession,  until  the 
voyage  is  terminated  and  the  freight  paid  according  to  the  arrangement 
in  the  charterparty. 

Bohtlingk  v.  Inglis,  3  East,  381,  which  has  been  frequentlv  cited,  and 
never,  as   far  as  I  can  discover,  with  disapprobation,  seems  to  have 
furnished  the  rule  which  was  alluded  to  in  argument  in  Van  Casteel  y, 
Booker,  2  Ex.  691,  viz.,  that  if  the  goods   are  delivered  on  board  a 
chartered  ship,  the  property  vests  in  the  consignee,  subject  to  the  right 
of  stoppage  in  transitu.     Mr.  Justice  Lawrence,  in  delivering  the  judg- 
ment of  the  court,  says  (3  East,  395):   -For  the  benefit  of  trade, °a 
rule  has  been  introduced  into  the  common  law,  enabling  the  consignor, 
in  case  of  the   insolvency  of  the  consignee,  to  stop   the  goods°con- 
signed  before  they  come  into  the  possession  of  the  consignee,  which 
possession  Buller,  J.,  in  Ellis  v.  Hunt,  3  T.  R.  466,  says,  means  an 
actual  possession.     That  the  possession  of  a  carrier  is  not  such  a  pos- 
session, has  been   repeatedly   determined,    and    the   question   now  is, 
whether  the  possession  of  the  master  be  anything  more  than  the  pos- 
session of  a  carrier,  and  not  the  actual  possession  of  the  bankrupt.  . 
It  does  not  differ  from  a  similar  contract  entered  into  by  the  consignor, 
by  the  directions  of  the  consignee,  at  the  loading  port,  for  the  convey- 
ance of  the  goods  from  him  to  the  vendee  ;  "  —  in  other  words,  it  would 
be  exactly  like  the  original  engagement  in  the  present  case,  and  the  cir- 
cumstance of  the  consignee  being  the  person  who  provides  the  ship,  makes 
really  no  substantial  difference  whatever  — "in  which  case  it  would 
hardly  be  contended  that  a  delivery  by  the  consignor  to  the  master  of  the 
ship  for  the  purpose  of  carriage,  would  be  such  a  delivery  to  the  vendee 
as  to  prevent  the  right  of  stoppage   in  transitu.      In  each  case  the 
freight  would  be  to  be  paid  by  the  consignee ,  in  each  case  the  ship 
would  be  hired  by  him ;  and  there  would  be  no  difference,  except  that 
in  this  case  the  ship,  in  consequence  of  the  agreement,  goes  from  Eng- 
land to  fetch  the  cargo," —just  as  in  the  case  now  before  me—  "  in 
the  other  case,  the  vessel  would  bring  it  immediately  from  the  loading 
port:  both  in  the  one  case  and  in  the  other  the  contract  is  with  the 
master  for  the  carriage  of  the  goods  from  one  place  to  another;  and 
until  the  arrival  of  the  goods  at  their  port  of  destination,  and  delivery 
to  the  consignee,  they  are  in  their  passage  or  transit  from  the  consignor 
to  the  consignee." 

The  learned  judge  distingishes  the  case  from  that  of  Fowler  u.  Kv- 


400  BERNDTSON  V.    STRANG.  [dlAP.  III. 

mer  (cited  in  Hodgson  v.  Loy,  7  T.  R.  442),  where  the  ship,  being  under 
the  complete  control  of  the  bankrupt,  had  the  goods  put  on  board  her, 
not  for  the  purpose  of  conveying  them  from  the  consignors  to  the  con- 
signees, but  that  they  might  be  sent  by  the  consignees  upon  a  mercan- 
tile adventure  for  which  they  had  bought  them,  and  there  the  delivery 
to  the  consignees,  being  at  the  place  pointed  out  by  them  where  the  de- 
liver}' should  be,  was  held  to  be  complete.  Of  course  the  place  of 
delivery  may  be  as  well  on  board  the  ship  as  at  the  port  of  her  destina- 
tion. The  case  of  Van  Casteel  v.  Booker,  2  Ex.  691,  does  not  appear 
to  me  to  make  an}'  substantial  difference.  There  it  was  the  vendee's 
own  ship,  and,  as  was  said  by  Parke,  B.,  in  the  judgment,  if  the  goods 
were  put  on  board  to  be  carried  for  and  on  the  account  and  risk  of  the 
bankrupts,  the  delivery  on  board  put  an  end  to  the  right  of  stopping 
in  transitu  ;  but  the  vendor  took  the  precaution  which  was  held  effec- 
tual in  Turner  v.  Trustees  of  Liverpool  Docks,  6  Ex.  543,  of  restraining 
the  effect  of  that  deliver}-  by  the  indorsement  on  the  bill  of  lading. 
The  court  there  (Van  Casteel  v.  Booker,  2  ib.  691),  seems  to  have 
thrown  out  that  this  precaution  stopped  the  effect  of  putting  the  goods 
on  board  the  vendee's  own  ship,  and  indicated  an  intention  not  to  part 
with  the  dominion  over  the  goods,  nor  vest  the  absolute  property  in  the 
bankrupts.  The  case  before  me  is  still  stronger,  as  although  the  ven- 
dor has  taken  this  precaution  in  order  to  guard  himself  against  any 
possible  contingency,  still  the  ship  is  the  instrument  of  transit,  and  in 
parting  with  these  bills  of  lading  in  exchange  for  the  bills  of  exchange, 
he  is  aware  that  the  ship  has  been  chartered  for  the  purpose  of  deliver- 
ing the  goods  at  the  port  of  London,  and  that  the  master  of  the  ship 
was  not  the  servant  of  the  vendee,  but  an  intermediate  agent  who,  for 
hire,  when  the  hire  was  paid,  was  to  deliver  the  goods  in  London. 

It  appears  to  me,  therefore,  that  until  the  goods  reach  London  the 
transitus  is  not  ended.  Cowasjee  v.  Thompson,  5  Moo.  P.  C.  165, 
differs  in  every  respect  from  this  case.  There  a  ship  was  sent  out, 
goods  were  ordered  for  that  ship,  and  the  ship  being  the  property  of 
the  person  sending  her  out,  the  transitus  was  complete  when  the  goods 
were  delivered  on  board  pursuant  to  order,  nothing  else  being  directed 
or  intended  by  anybody.  Again,  in  Schotsmans  v.  Lancashire  and 
Yorkshire  Railway  Company,  Law  Rep.  2  Ch.  332,  the  ship  was  the 
ship  of  the  vendee,  and  the  vendor  did  not  take  the  precaution  of  pre- 
serving his  right  of  stoppage  in  transitu  by  making  the  goods  deliver- 
able to  his  order  or  assigns  ;  the  goods  by  the  bill  of  lading  being  made 
deliverable  to  the  purchaser  or  assigns.  The  whole  case  here  appears 
to  me  to  turn  upon  whether  or  not  it  is  the  man's  own  ship  that  re- 
ceives the  goods,  or  whether  he  has  contracted  with  some  one  else  qua 
carrier  to  deliver  the  goods,  so  that,  according  to  the  ordinary  rule  as 
laid  down  in  Bohtlingk  v.  Inglis,  3  East,  381,  and  continually  referred 
to  as  settled  law  upon  this  subject,  the  transitus  is  only  at  an  end  when 
the  carrier  has  arrived  at  the  place  of  destination,  and  has  delivered  the 
goods. 


CHAP.  III.]  EX    PARTE   GOLDING,   ETC.  401 

I  must,  therefore,  follow  the  decision  in  Spalding  v.  Ruding,  6  Beav. 
376,  and  declare  the  plaintiff  entitled  out  of  the  fund  in  court  to  the 
balance  due  upon  the  bill  of  exchange,  with  interest  from  the  date  of 
maturity.1 


Ex  Parte   GOLDING,    DAVIS,    &   CO.,    LIMITED. 

In  the  Chancery  Division,  Court  of  Appeal,  February  12,  1880. 

[Reported  in  13  Chancery  Division,  628.] 

This  was  an  appeal  from  a  decision  of  Mr.  Registrar  Pepys,  acting 
as  Chief  Judge  in  Bankruptcy. 

Knight  &  Son  were  merchants  in  London  and  at  Liverpool.  Golding, 
Davis,  &  Co.,  Limited,  carried  on  business  as  manufacturers  of  alkali 
at  Widnes. 

On  the  15th  of  November,  1877,  Knight  &  Son  entered  into  the 
following  contract  with  the  company:  — 

Messrs.  Golding,  Davis,  &  Co. 

We  have  this  day  bought  of  you  the  following  goods  of  good 
merchantable  quality:  Twelve  hundred  (1,200)  drums  5/6  cwt.  each, 
white  70%  caustic  soda,  your  own  make,  per  Huson's  sampling  and 
test  note.  Delivery,  100  drums  per  month,  January  and  December, 
1878.  Shipment,  f.  o.  b.  Liverpool.  Price,  £14  per  ton.  Discount, 
2\°/0  and  com.  1%.  Prompt  14  days  after  each  delivery,  or  before 
delivery  if  required. 

(Signed)  Knight  &  Son. 

On  the  same  day  Knight  &  Son  entered  into  the  following  contract 
with  D.  Taylor  &  Sons,  of  London :  — 

Messrs.  D.  Taylor  &  Sons. 

We  have  this  day  sold  to  you  the  undermentioned  goods  of  good 
merchantable  quality:  1,200  drums,  5/6  cwt.  each,  white  70%  caustic 
soda,  Golding,  Davis,  &  Co.'s  make,  Huson  Bros,  sampling  and  test. 
Mode  of  delivery,  f.  o.  b.  Liverpool.  Time  of  delivery,  100  drums 
per  month,  January  and  December,  1878,  each  month's  delivery  a 
separate  contract.  Price,  £14  per  ton.  Discount,  2-h%.  Prompt  14 
days  after  each  delivery. 

(Signed)  Knight  &  Sox. 

The  question  in  dispute  on  the  present  appeal  related  to  the  October 
delivery  of  100  tons. 

On  the  28th  of  October,  1878,  Knight  &  Son's  London  house  wrote 
to  their  Liverpool  branch,  in  pursuance  of  instructions  which  they  had 
received  from  D.  Taylor  &  Sons,  as  follows  :  — 

1  On  appeal  the  decree  of  Vice-Chancellor  Wood  was  affirmed  as  to  the  point  de- 
cided by  him,  though  varied  as  to  a  point  not  discussed  in  the  lower  court.  Berudtson 
t\  Strang,  L.  R.  3  Ch.  588. 

26 


402  EX  PARTE  GOLDING,  ETC.  [CHAP.  III. 

•;  We  enclose  bills  of  lading  for  Taylor's  100  drums,  Goldiug's. 
Please  get  them  shipped  at  once,  as  Taylor  wants  bills  of  lading  dated 
October.     They  are  to  go  by  sail  to  New  York." 

On  the  4  th  of  November  Knight  &  Son's  Liverpool  branch  sent 
instructions  to  the  company  to  ship  the  100  drums  at  once  on  board 
the  ship  "  Larnaca,"  for  New  York,  then  lying  at  Liverpool.  The 
"  Larnaca  "  was  a  general  ship.  The  goods  were  accordingly  shipped 
by  the  company  on  the  7th  of  November.  The  wharfinger's  receipt  for 
the  goods  stated  that  they  were  received  for  shipment  on  board  the 
"Larnaca"  on  account  of  Knight  &  Sou,  Liverpool.  This  receipt 
was  handed  to  the  shipping-brokers  of  the  ship,  who  then  procured 
the  signature  of  the  master  of  the  ship  to  the  bill  of  lading. 

The  bill  of  lading  stated  that  the  goods  were  shipped  by  David 
Taylor  &  Sons,  to  be  delivered  at  New  York  unto  order  or  to  assigns, 
he  or  they  paying  freight. 

The  sum  payable  by  Taylor  &  Sons  to  Knight  &  Son  for  the  goods 
was  £370  10s.  3c?.,  and  the  sum  payable  by  Knight  &  Son  to  the 
company  was  £366  14s.  3d.  The  bill  of  lading  was  handed  by  the 
shipping-brokers  to  Knight  &  Son's  Liverpool  branch  on  the  afternoon 
of  the  7th  of  November,  and  was  sent  by  them  the  same  evening  by 
post  to  Knight  &  Son  in  London,  by  whom  it  was  received  on  the 
moruiug  of  the  Sth  of  November.  Meanwhile,  on  the  7th  of  Novem- 
ber, Knight  &  Son  (the  partners  in  the  firm  all  residing  in  London) 
had  suspended  payment ;  but  this  fact  was  not  known  to  their  Liver- 
pool branch  until  the  morning  of  the  8th  of  November.  On  the  same 
morning  the  company  received  a  circular  informing  them  of  the  sus- 
pension. The  "  Larnaca  "  was  still  in  dock  at  Liverpool,  and  the 
goods  had  not  been  paid  for  either  by  Knight  &  Son  or  by  Taylor  & 
Sons.  The  company  at  once  telegraphed  to  Knight  &  Son  in  London 
not  to  part  with  the  bill  of  lading,  and  they  also  served  a  notice  of 
stoppage  in  transitu  on  the  master  of  the  ship,  the  ship's  agents,  and 
the  brokers  for  the  ship.  Knight  &  Son  had  placed  their  affairs  in 
the  hands  of  Mr.  F.  Cooper,  an  accountant  in  London,  to  whom  the 
bill  of  lading  was  handed  on  the  Sth  of  November.  On  the  13th  of 
November  Knight  &  Son  filed  a  liquidation  petition,  and  on  the  14th 
of  November  Cooper  was  appointed  receiver  under  the  petition.  On 
the  4th  of  December  the  creditors  resolved  upon  a  liquidation  by 
arrangement,  and  appointed  Cooper  trustee.  The  price  of  caustic 
soda  hod  fallen  £3  per  ton  since  November,  1877  ;  and  it  was  arranged 
between  Cooper  and  the  company  that  the  contract  with  Taylor  &  Sons 
should  be  carried  out,  and  that  their  purchase-money  should  be  paid 
into  a  bank  in  the  joint  names  of  Cooper  and  the  manager  of  the  com- 
pany, pending  the  decision  of  the  court  as  to  the  validity  of  the  notice 
to  stop  in  transitu.  This  was  done,  and  the  goods  were  accordingly 
delivered  in  New  York. 

The  Registrar  held  that  the  notice  was  of  no  effect,  on  the  ground 


CHAP.  III.]  EX    PARTE   GOLDING,   ETC.  403 

that,  the  bill  of  lading  being  in  the  name  of  Taylor  &  Sons,  the  prop- 
erty in  the  goods  was  transferred  to  them,  and  the  transitu^  was  at  an 
end  as  between  the  company,  the  vendors,  and  Knight  &  .Son,  the 
purchasers,  when  the  goods  were  placed  on  board  the  ship  and  the 
bill  of  lading  was  made  out  in  the  name  of  Taylor  &  Sons. 

The  company  appealed. 

De  Gex,  Q.  C,  and  E.  Cooper  Willis,  for  the  appellants. 

Winslow,  Q.  C,  and  F.  IV.  Hollams,  for  the  trustee. 

Cotton,  L.  J.  We  have  to  consider  a  case  which  is,  perhaps,  to  some 
extent,  new  as  regards  the  right  of  stoppage  in  transitu.  Now,  of 
course  that  right  only  exists  during  the  transit.  If  it  can  be  shown  by 
any  means  that  the  transit  is  at  an  end,  then  that  right  is  gone,  and 
there  would  be  no  occasion  to  consider  how  far  the  right  is  interfered 
with  or  defeated  by  the  claims  or  rights  of  third  persons.  I  will 
first  deal  with  the  point  whether,  in  this  case,  the  transit  was  at  an 
end  when  the  notice  was  given. 

As  I  understand  it,  the  transit  in  such  cases  is  while  the  goods  are 
in  the  hands  of  a  carrier  for  the  purposes  of  the  journey  indicated 
under  or  by  the  contract  between  the  original  vendor  and  purchaser. 
That,  I  take  it,  is  the  meaning  of  the  transit.  When  we  look  into 
the  facts,  what  we  find  is  this:  that  as  between  the  original  vendors, 
Golding,  Davis,  &  Co.,  Limited,  and  the  original  purchasers,  Knight  & 
Son,  Knight  &  Son  gave  directions,  as  they  had  a  right  to  do,  that  the 
goods  should  be  sent  to  Liverpool  to  be  shipped  on  board  a  ship, 
which  they  named,  for  New  York.  The  voyage,  therefore,  from  the 
warehouse  or  works  of  Golding,  Davis,  &  Co.  to  New  York,  was  the 
journey  or  transit  agreed  upon  or  pointed  out  by  the  contract  between 
the  original  vendors  and  the  original  purchasers.  What  we  have  to 
consider  is  whether,  at  the  time  when  the  right  of  stoppage  was 
attempted  to  be  exercised,  the  goods  were  on  that  transit. 

It  is  undoubted  that  the  transit  might  be  put  an  end  to  by  the  pur- 
chaser who  has  the  property  in  and  the  right  to  claim  possession  of 
the  goods.  But  in  the  present  case  the  goods  were  in  the  ship,  where 
the  shipowner  and  the  captain  were  acting  simply  (subject  to  what  I 
shall  presently  consider)  as  carriers  for  the  purpose  of  completing  the 
journey  which  had  been  indicated  as  between  the  vendors  and  the  pur- 
chasers. But  it  is  said  (and  that  seems  to  have  been  the  view  of  the 
Registrar)  that  the  transit  as  between  the  original  vendors  and  pur- 
chasers was  ended.  Now  that  must  mean  that  there  had  been  either 
a  taking  possession  of  the  goods  by  the  purchasers,  or  a  sending  of 
the  goods  on  a  new  and  different  voyage;  because,  if  it  only  means 
that  when  the  goods  should  arrive  at  their  destination,  they  would, 
under  the  circumstances  existing  at  the  time  when  the  attempt  was 
made  to  exercise  the  right  to  stop,  go,  not  to  the  original  purchaser, 
lint  to  somebody  else,  that  is  the  case  whenever  the  original  purchaser 
has  handed  over  the  right  to  receive  the  goods  at  the  end  of  the  voy- 
age to  somebody  else.     That  would  include  every  case  of  a  transfer 


404  EX  PARTE  GOLDING,  ETC.  [CHAP.  III. 

of  a  bill  of  lading.  But  it  is  clear  that  the  transfer  of  a  bill  of  lading, 
except  for  value,  will  never  defeat  the  right  of  stoppage  in  transitu. 
and  will  never  put  an  end  to  the  transit  by  making  the  journey  not  a 
journey  as  between  the  vendor  and  the  original  purchaser,  but  a  jour- 
ney as  between  the  vendor  and  somebody  else.  The  real  fact  in  the 
present  case  was  that  the  original  purchasers,  Knight  &  Son,  had 
entered  into  another  contract,  not  to  sell  these  particular  goods,  but  a 
contract  which  they  intended  to  supplement  and  make  good  by  means 
of  the  goods  which  they  would  acquire  under  their  contract  with 
Golding,  Davis,  &  Co.  No  doubt  New  York  was  the  end  of  the  jour- 
ney indicated  in  the  contract  between  Knight  &  Son  and  Taylor  & 
Sons  ;  but  it  did  not  on  that  account  cease  to  be,  and  it  was  not  on 
that  account  a  bit  the  less  the  end  of  the  journey  contemplated  as 
between  Golding,  Davis,  &  Co.  and  Knight  &  Son.  The  view  which 
the  Registrar  took  cannot,  in  my  opinion,  be  maintained.  The  journey 
indicated  by  the  contract  between  the  original  vendors  and  purchasers 
was  still  continuing,  there  had  been  no  new  or  different  journey 
indicated  ;  and  that  entirely  distinguishes  the  case  from  that  which 
possibly  was  in  the  mind  of  the  Registrar,  where  on  the  original  pur- 
chase one  journey  had  been  contemplated,  but  in  consequence  of  a 
contract  between  the  original  purchaser  and  the  sub-purchaser  he 
directs  that  the  goods  shall  go  to  a  different  terminus.  In  such  a 
case,  of  course  the  right  of  stoppage  in  transitu  is  at  an  end;  because 
what  is  done  is  equivalent  to  the  original  purchaser  taking  possession 
of  the  goods  and  dealing  with  them  by  means  of  that  possession.  It 
was  urged  by  Mr.  "Winslow  that  what  occurred  in  the  present  case  was 
equivalent  to  that;  but.  in  my  opinion,  that  view  cannot  be  sustained. 
1  think  that  what  was  done  had  just  the  same  legal  effect  as  if  the  bill 
of  lading  had  been  made  out  in  the  name  of  the  original  purchasers 
and  had  then  been  assigned  by  them  to  their  sub-purchasers.  There 
was  nothing  done  by  the  purchasers  to  alter  the  destination  agreed 
upon  between  them  and  the  original  vendors,  no  actual  taking  pos- 
session of  the  goods,  and,  in  my  opinion,  there  was  nothing  which  can 
be  considered  as  equivalent  to  their  doing  that  and  then  starting  the 
goods  as  from  their  possession  on  a  different  and  new  voyage. 

Then,  the  transitus  being  still  existing,  and  there  being  a  right  in 
the  vendors  to  stop,  unless  something  had  interfered  with  that  right, 
can  it  be  said  that  the  sub-sale  has  interfered  with  it?.  Now,  I  take  it 
the  principle  is  this  :  that  the  vendor  cannot  exercise  his  right  to  stop 
during  the  transit,  if  the  interests  or  rights  of  any  other  persons  which 
they  have  acquired  for  value  will  be  defeated  by  his  so  doing.  Except 
^<>  far  as  i:  is  necessary  to  give  effect  to  interests  which  other  persons 
have  acquired  for  value,  the  vendor  can  exercise  his  right  to  stop  in 
transitu.  It  has  been  decided  that  he  can  do  so  when  the  original 
purchaser  has  dealt  with  the  goods  by  way  of  pledge.  Here  we  have 
rather  the  converse  of  that  case.  There  has  been  an  absolute  sale  of 
the  goods  by  the  original  purchaser,  but  the  purchase-money  has  not 


CHAP.  III.]  EX    PARTE    FALK.       IN    RE    KIELL.  4'  5 

been  paid.  Can  the  vendor  make  effectual  his  right  of  stoppage 
in  transitu  without  defeating  in  any  way  the  interest  of  the  sub- 
purchaser? In  my  opinion  he  can.  lie  can  say,  I  claim  a  right  to 
retain  my  vendor's  lien.  I  will  not  defeat  the  right  of  the  sub- 
purchaser, but  what  I  claim  is  to  defeat  the  right  of  the  purchaser 
from  me;  that  is,  to  intercept  the  purchase-money  which  he  will  get, 
so  far  as  is  necessary  to  pay  me.  That,  in  my  opinion,  he  is  entitled 
to  do,  not  in  any  way  thereby  interfering  with  the  rights  of  the  sub- 
purchaser, but  only,  as  against  his  own  vendee,  asserting  his  right  to 
resume  his  vendor's  lien  and  to  obtain  payment  by  means  of  an  exer- 
cise of  that  right ;  interfering  only  with  what  would  have  been  a  bene- 
fit to  the  vendee,  who  would  otherwise  have  got  his  purchase-money 
without  paying  for  the  goods,  but  in  no  way  interfering  with  any  right 
acquired  by  the  sub-purchaser  of  the  goods. 

Appeal  allowed.  Appellants  to  receive  the  whole  of  the  purchase- 
money  due  under  their  contract  with  Knight  &  Son  out  of  the  fund 
in  the  joint  names.1 


Ex  parte  FALK.    In  re  KIELL. 
Ix  the  Chancery  Division  Court  of  Appeal,  May  6,  13,  1880. 

[Reported  in  14  Chancery  Division,  446.] 

CHARLES  FITCH   KEMP,   Appellant    v.   HERMANN  EUGENE 
FALK,    Respondent. 

In  the  House  of  Lords,  July  10,  1882. 

[Reported  in  7  Appeal  Cases,  573.] 

In  March,  1878,  Kiell  bought  on  credit  from  Falk  a  cargo  of  salt, 
chartered  the  '•Carpathian,"  and  consigned  the  salt  (which  had  been  put 
on  board  by  Falk)  to  Wiseman,  Mitchell,  &  Co.,  of  Calcutta.  Through 
T.  Wiseman  &  Co.,  of  Glasgow,  the  agents  of  Wiseman,  Mitchell,  & 
Co.,  Kiell  obtained  an  advance  from  the  Bank  of  Scotland  upon  the 
security  of  the  bills  of  lading  which  Kiell  indorsed.  In  July.  Wiseman, 
Mitchell,  &  Co.  sold  the  cargo  "to  arrive."  On  the  20th  of  July,  Kiell 
went  into  liquidation,  and  Falk,  on  the  27th.  served  on  the  shipowners 
in  Liverpool  notice  to  stop  in  transitu.  The  ship  arrived  at  Calcutta 
on  the  29th  of  July  ;  part  of  the  cargo  was  delivered  to  sub-purchasers 
on  the  3d  of  August,  and  the  remainder,  after  notice  to  stop  in  transitu 
had  been  served  on  the  captain,  on  the  5th  of  August.  Wiseman, 
Mitchell,  &  Co.  remitted  the  proceeds  of  the  subsales  to  the  Bank  of 
Scotland,  who  deducted  the  amount  of  their  advance  and  paid  the  bal- 
ance to  the  appellant.  Kiell's  trustee  in  bankruptcy.  Falk  having  ap- 
plied to  the  Court  of  Bankruptcy  to  order  the  trustee  to  pay  over  the 

1  James  ami  Baggallay,  L.J.J.,  delivered  concurring  opiuious. 


406  EX  PARTE  FALK.   IN  RE  KIELL.        [CHAP.  III. 

balance,  which  was  less  than  the  amount  for  which  Falk  sold  to  Kiell, 
the  registrar,  sitting  as  chief  judge,  refused  the  application.1 

Bramwell,  L.  J.     I  think  there  was  no  effectual  stoppage  in  tran- 
situ until  the  master  of  the  ship  was   told   by  the  vendor's  agent  to 
stop  the  goods.     I  think  that  what  took  place  at  Liverpool  amounted 
only  to  telling  some  one  to  stop  the  goods,  not  to  a  stoppage  in  transitu, 
and  1  cannot  think  that  any  duty  was  imposed  on  the  shipowners  at 
Liverpool  to  stop  the  goods.     It  seems  to  me  that  it  would  be  mon- 
strous to  hold  that  the  telling  somebody  else  to  stop  goods  in  transitu 
amounts  to  a  stoppage  in  transitu.    But  I  am  of  opinion  that  the  notice 
given  to  the  master  of  the  ship  on  the  5th  of  August  would  have  been 
effectual  as  a  stoppage  in  transitu  if  there  had  been  no  sub-purchaser. 
The  master  was  then  in  possession  of  goods  as  carrier  ;  he  had  not  per- 
formed the  whole  of  his  duty  in  that  character,  and  he  had  not  lost  his 
lien  on  the  goods  for  the  freight.     Mr.  Benjamin  was  obliged  ingeniously 
to  invent  a  new  contract  between  the  master  and  the  sub-purchaser  con- 
stituted by  the  delivery  orders.    I  am  of  opinion  that  there  was  no  such 
new  contract.     With  regard  to  the  cases  which  have  been  referred  to 
upon  what  is  called  constructive  delivery,  it  seems  to  me  that,  if  there 
is  not  a  delivery  of  the  whole  of  a  cargo,  it  had  better  not  be  deemed 
a  delivery  of  the   whole.     I  cannot  understand  the  case  of  Slubey  v. 
Hey  ward,  2  H.  Bl.  504,  because  it  appears  that  the  sub-purchaser  had 
paid  for  the  goods,  and  on  what  ground  there  could  be  a  stoppage  in 
transitu  as  against  him  I  am  at  a  loss  to  see.     The  note  of  the-  case  is 
a  very  loose  one.      The  court  seems  to  have  held  that  which,  with 
great  submission,  appears  to  me  a  very  doubtful  proposition,  that  the 
carrier's  duty  had   come  to  an   end.      As  to  Hammond  v.  Anderson, 
1  B.  &  P.  (N.  R.)  G9,   there  is   not  a  word  in   the  judgments   about 
delivery  of  part  of  the   cargo  being   a   constructive  delivery  of  the 
whole.    What  Sir  James  Mansfield,  C.  J.,  said  was  this:   tkOn  a  for- 
mer occasion  the  court  decided  that  when  part  of  the  goods  sold  by 
an    entire    contract  was    taken   possession  of,   the  vendee   had  taken 
possession  of  the  whole."     But  with  regard  to  the   case  then   before 
the  court  he  said  :    "  So  much  having  been  taken  away,  and  the  whole 
having  been  weighed  by   the  bankrupt,   it  is  insisted  that  the  bank- 
rupt  had    taken    possession    of  the   whole.    ...    As  to  those   bales 
which  were  sent  away,  the  bankrupt  had  taken  actual  possession,  and 
therefore  no  question  can  arise  ;  and  when  it  is  admitted  that  he  had 
taken  possession  of  a  part,  how  can  it  be  said  that  he  had  not  taken 
possession  of  the  whole?     The  price  was  entire,  and  the  whole  to  be 
paid  for  by  one  bill."     The  effect  of  the  decision  is  shown  by  the  short 
judgment  of  Rooke,  J.,   who  said:  "The  facts  of  the  case  are  too 
strong  to  be  got  over.     The  whole  of  the  goods  was  paid  for  by  one 
bill ;  a  general  order  was  given  for  the  delivery  of  the  whole,  and  the 
purchaser  under  that  order  went  and  took  away  a  part ;  how  could  he 

i  The  statement  of  facts  lias  been  abbreviated. 


CHAP.  Ill]  EX   PARTE    FALK.      IN   RE    KIELL.  407 

more  effectually  change  the  possession?"  It  was  a  deliver}'  of  the 
whole  cargo,  because  the  wharfinger  was  holding  the  whole  for  the  pur- 
chaser as  his  bailee  and  with  a  duty  to  him.  I  think,  therefore,  that  in 
the  present  ease  there  was  not  an  end  of  the  transitus  before  the  notice 
of  stoppage  was  given  to  the  master  on  the  5th  of  August.  Then 
arises  the  question  whether,  there  having  been  a  sub-sale  of  the  goods, 
the  stoppage  in  transitu  can  prevail.  In  one  sense  it  must  be  admitted 
that  no  right  in  the  goods  remained  in  Kiell  after  the  sub-sale,  though 
he  might  still  have  stopped  them  in  transitu,  as  against  his  sub- 
purchasers. If  there  is  any  reason  at  all  in  the  thing,  and  I  think 
there  is  — for  suppose  Kiell  had  not  become  a  bankrupt,  but  had  been 
insolvent,  would  there  have  been  anything  unreasonable  in  the  law 
interfering  and  saying  to  him,  Your  sub-purchaser's  purchase-money 
shall  not  get  into  your  hands,  but  shall  go  to  pay  your  vendor?  —  what 
difference  can  it  make  that  the  purchaser  has  become  a  bankrupt?  If 
the  right  of  stoppage  in  transitu  is  ever  to  be  exercised,  I  can  see 
nothing  unreasonable  in  its  being  exercised  in  such  a  case  against  the 
sub-purchaser's  purchase-money.  But  there  is  the  decision  in  Ex  parte 
Goldiug,  Davis,  &  Co.,  13  Ch.  D.  628,  which  seems  to  me  to  be  exactly 
in  point.  I  am  not  going  to  shelter  myself  under  the  authority  of  that 
case.  In  my  opinion  it  was  rightly  decided.  What  difference  is  there 
in  principle  between  the  case  of  a  man  selling  goods  on  credit  for 
£500  and  these  being  then  resold  for  £G00,  and  the  case  of  the  purchaser 
pledging  the  goods  for  £600  with  a  right  of  sale  by  the  pledgee?  Why, 
if  the  vendor  can  stop  the  proceeds  of  sale  in  the  one  case,  should 
he  not  have  a  right  to  stop  them  in  the  other?  What  injury  is  there  to 
the  sub-purchaser?  The  decisions  in  In  re  Westzinthus,  5  B.  &  Ad. 
817,  and  Spalding  v.  Ruding,  6  Beav.  376,  seem  to  me  to  be  applicable 
both  to  Ex  parte  Golding,  Davis,  &  Co.,  and  to  the  present  case. 
The  appeal  must  succeed.1 

Appeal  was  taken  to  the  House  of  Lords,  and  the  following  opinion 
delivered. 

Lord  Blackburn.  My  Lords,  I  perfectly  agree  in  the  result  that 
this  appeal  must  be  dismissed  with  costs.  Originally  in  this  case  there 
was  a  statement  of  facts  made  in  the  Court  of  Bankruptcy,  upon  which 
there  was  an  appeal  to  the  Appeal  Court ;  and  on  that  statement  of 
facts  the  ingenuity  of  counsel  seems  to  have  led  the  court  below  to 
draw  some  inferences,  which  induced  them,  whilst  giving  judgment. 
as  they  have  done,  in  favor  of  Mr.  Falk,  the  present  respondent,  to 
intimate  at  the  same  time  that  they  thought  the  case  raised  a  question 
which  had  been  raised  in  the  case  of  Ex  parte  Golding.  Davis,  &  Co., 
13  Ch.  D.  628,  and  that  therefore  the}'  should  give  leave  to  appeal. 
When  the  case  came  here  the  first  time,  my  noble  and  learned  friend 
Lord  Penzance  thought  that  the  statement  of  facts  was  not  intelligible, 
and  that  it  was  desirable  that  it  should  be  sent  down  to  have  the  facts 

1  James  and  Baggallay,  L.JJ.,  delivered  concurring  opinions. 


•108  EX   PARTE   FALK.      IN   RE   KIELL.  [CHAP.  III. 

made  clear;  and  now  it  appears  tbat  the  original  statement  of  facts 
was  not  only  not  intelligible  but  also  not  quite  accurate  ;  and  we  have 
now  an  amended  and  supplementary  statement  of  facts,  showing  what 
the  facts  of  the  case  really  were.  Taking  tbat  statement,  it  seems  to 
me  tbat  the  case  is  perfectly  clear.  We  have  no  occasion  to  consider 
whether  the  case  of  Ex  parte  Golding,  Davis,  &  Co.,  supra,  was  well 
or  ill  decided,  because  no  point  relating  to  it  arises  here. 

It  appears  tbat  Mr.  Falk  of  Liverpool  bad  sold  to  Mr.  Kiell  a  quan- 
tity of  salt,  which  was  shipped  on  board  a  vessel  bound  for  Calcutta; 
that  Mr.  Kiell  accepted  a  draft  drawn  against  tbat  cargo;  that  bills 
of  lading  were  made  out,  which  were  signed  not  as  is  usual  by  the 
master  but  by  the  shipowner  himself,  and  that  Mr.  Kiell  got  those 
bills  of  lading.  Now,  so  far  as  that  goes,  standing  there,  nothing  can 
be  more  thoroughly  established  than  the  law  upon  it.  Mr.  Falk  having 
delivered  the  goods  and  taken  a  bill  of  exchange  had  no  right  whatever 
to  meddle  with  those  goods  further,  unless  before  the  end  of  the  tran- 
situs  (I  shall  say  a  word  presently  as  to  what  comes  at  the  end  of  the 
transitus) ,  Kiell  the  purchaser  became  insolvent  and  stopped  payment, 
and  then  if  Falk  had  stopped  the  goods  in  transitu  he  would  have 
been  revested  in  his  rights  as  an  unpaid  vendor  as  against  Kiell.  It 
is  pretty  well  settled  now  that  it  would  not  have  rescinded  the  contract. 
But  before  the  end  of  the  transitus  came,  his  right  to  stop  the  goods  in 
transitu  might  be  defeated  by  an  indorsement  upon  the  bill  of  lading 
to  a  person  who  gave  value.  In  the  present  case  there  was  such  an 
indorsement  and  transfer  of  the  bill  of  lading,  but  it  was  only  an 
indorsement  and  transfer  for  a  particular  and  limited  purpose.  It 
appears  tbat  Mr.  Kiell  in  order  to  obtain  an  advance  got  Messrs.  T. 
Wiseman  &  Co.  of  Glasgow,  the  correspondents  and  agents  of  Messrs. 
Wiseman,  Mitchell,  Reid,  &  Co.  of  Calcutta,  to  make  an  advance  in  bis 
favor  by  drawing  a  bill  of  exchange  upon  him  ;  and  to  secure  the  pa}-- 
ment  of  that  bill  of  exchange  the  bill  of  lading  was  indorsed,  and  the 
Bank  of  Scotland,  who  discounted  or  took  that  bill,  became  holders  of 
the  bill  of  lading  for  the  purpose  of  protecting  themselves.  It  was 
clearly  a  transfer  for  value  to  the  Bank  of  Scotland,  and  as  such,  so 
far  as  that  went,  it  defeated  the  right  of  the  stoppage  in  transitu  at 
law.  But  the  unpaid  vendor's  right,  except  so  far  as  the  interest  bad 
passed  by  the  pledging  of  the  bill  of  lading  to  the  pledgee,  or  the 
mortgagee,  whichever  it  was,  enabled  the  unpaid  vendor  in  equity  to 
stop  in  transitu  everything  which  was  not  covered  by  that  pledge. 
That  was  settled  and  has  been  considered  law,  or  rather  equit}',  ever 
since  the  case  of  In  re  Westzinthus,  5  B.  &  Ad.  817,  and  has  been 
affirmed  in  Spalding  v.  Buding,  G  Beav.  376  ;  12  L.  J.  (Ch.)  503  ;  and 
I  have  no  doubt  it  is  ver\T  good  law  upon  tbat  point. 

Here  therefore  the  stoppage  by  Falk  as  unpaid  vendor  would  revest 
in  him  bis  lien  except  so  far  as  concerned  the  Bank  of  Scotland,  unless 
something  else  had  happened.  Now  what  has  happened?  The  argu- 
ment of  Mr.    Bompaa  was  this :  First  of  all  it  appears  that  Messrs. 


CHAP.  III.]  EX    PARTE    FALK.      IN    RE   KIELL.  409 

Wiseman,  Mitchell,  Reid,  &  Co.,  who  were  the  persons  to  whom  the 
goods  were  consigned  (I  do  not  understand  whether  the}'  were  pur- 
chasers, or  merely  agents  for  Kiell  &  Co.),  sent  over  to  their  correspond- 
ents T.  Wiseman  &  Co.  of  Glasgow  a  sale  note,  and  then  they 
forwarded  it  to  Kiell  &  Co.  in  this  letter:  "Dear  Sirs, — We  enclose 
sale  note  of  your  cargo  of  salt  ex  '  Carpathian  '  to  arrive,"  and  so  on  — 
the  rest  of  the  letter  does  not  matter.  So  that  at  that  time  it  appears 
that  Messrs.  Wiseman,  Mitchell,  &  Co.  had  entered  into  a  contract  at 
Calcutta  for  a  sale  of  the  goods  "to  arrive."  The  date  of  that  letter 
was  the  17th  of  July,  a  fortnight  or  so  before  the  ship  actually  did 
arrive  at  Calcutta.  That,  it  was  argued,  put  an  end  to  the  vendor's 
right  to  stop  the  goods  in  transitu,  and  pro  tanto  the  equitable  right 
to  stop  them  in  transitu  which  remained  in  Mr.  Falk.  I  have  en- 
deavored to  understand  on  what  ground  it  is  supposed  to  put  au  end 
to  it.  No  sale,  even  if  the  sale  had  actually  been  made  with  payment, 
would  put  an  end  to  the  right  of  stoppage  in  transitu  unless  there  were 
an  indorsement  of  the  bill  of  lading.  Why  any  agreement  to  sell, 
unless  it  was  made  in  such  a  way  as  to  pass  the  right  of  property  in 
the  goods  sold,  should  be  supposed  to  put  an  end  to  the  equitable 
right  to  stop  them  in  transitu  I  cannot  understand.  I  am  quite  clear 
that  it  does  not. 

The  next  thing  which  was  attempted  to  be  argued  was  this.  The 
Bank  of  Scotland,  the  holders  of  the  bill  of  lading  at  Glasgow,  for- 
warded the  bill  of  lading  in  due  course  to  their  agents  at  Calcutta ; 
and  it  is  surmised  that  their  agents  at  Calcutta  must  have  been  some 
persons  different  from  Messrs.  Wiseman,  Mitchell,  &  Co.  I  infer  that 
Messrs.  Wiseman,  Mitchell,  &  Co.  wei'e  the  people  who  acted  as  their 
agents  in  this  transaction,  but  I  do  not  think  it  matters  whether  they 
were  or  not.  The  Bank  of  Scotland  sent  the  bill  of  lading  to  their 
agents,  whether  they  were  Messrs.  Wiseman,  Mitchell,  &  Co.  or  any 
one  else.  Those  agents  received  that  bill  of  lading  well  knowing  (or 
at  all  events  they  ought  to  have  known)  that  the  Bank  of  Scotland  had 
by  virtue  of  this  bill  of  lading  a  hold  over  the  goods.  They  were  en- 
titled to  see  that  the  goods  were  not  sold  or  disposed  of  in  any  way 
prejudicial  to  their  lien,  and,  if  they  were  sold,  that  the  money,  or 
enough  of  it  to  repay  the  Bank  of  Scotland  and  secure  them,  should 
pass  through  their  hands  or  the  hands  of  their  agents  ;  and  I  see 
nothing  that  happened  afterwards  which  shows  that  they  acted  other- 
wise than  in  strict  conformity  with  the  duty  thus  cast  upon  them.  It 
was  argued  that  inasmuch  as  Messrs.  Wiseman,  Mitchell,  &  Co.  had 
acted  for  Kiell  &  Co.  in  selling  the  goods,  taking  a  del  credere  com- 
mission to  secure  that  the  people  to  whom  they  sold  should  pay  the 
price,  therefore  the}'  were  persons  who  were  entitled  to  have  the  bill 
of  lading  indorsed  to  them  as  a  security.  I  am  utterly  unable  to 
understand  that  argument ;  it  is  clear  to  me  that  they  were  not  so 
entitled. 

The  next  thing  which  was  said  was  this.     There  was  a  little  con- 


410  EX   PARTE   FALK.      IN   RE   KIELL.  [CHAP.  III. 

fusion  in  the  statement  here,  but  it  is  now  said  upon  the  amended 
statement  of  facts,  that  Messrs.  Wiseman,  Mitchell,  &  Co.,  who  I  can- 
not but  think  were  the  persons  employed  by  the  Bank  of  Scotland  as 
their  agents,  did  at  some  time  (I  do  not  exactly  know  when)  indorse 
the  bill  of  lading  and  show  it  to  the  captain.  I  do  not  think  that  that 
comes  to  more  than  this,  that  they  gave  the  captain  complete  notice, 
when  he  arrived  at  Calcutta,  "  We  are  the  persons  who  have  the  legal 
right  to  the  delivery  of  these  goods,  for  we  have  the  bill  of  lading, 
holding  it  under  the  Bank  of  Scotland,  and  consequently  we  are  the 
persons  entitled  to  the  goods.  You  can  deliver  only  to  us  without 
being  responsible  to  us ;  if  you  deliver  to  us  or  with  our  sanction,  you 
will  not  be  responsible  to  us."     I  can  put  no  other  meaning  upon  it. 

Then  it  was  argued  that  this  amounts  to  a  delivery  of  the  whole 
cargo  by  the  shipowner  to  Messrs.  Wiseman,  Mitchell,  &  Co.,  who 
from  that  time  forward  would  be  holders  of  the  goods  ;  the  shipowner 
in  whose  physical  possession,  in  the  hold  of  whose  vessel,  the  goods 
lay,  being  changed  from  holding  the  goods  as  shipowner,  not  having 
delivered  the  goods,  into  a  warehouseman  who  was  very  inconveniently 
holding  those  goods  in  his  ship  as  a  warehouse.  I  think  that  that  is 
an  arrangement  which  might  be  made  although  it  is  not  a  very  con- 
venient one.  The  freight  was  not  paid  ;  but  I  think  it  is  possible  to 
make  an  arrangement  by  which,  though  the  freight  is  not  paid,  the 
shipowner  changes  himself  completely  into  a  warehouseman  instead  of 
being  a  carrier  or  a  shipowner  ;  he  alters  his  responsibilities  altogether  ; 
and  yet  by  arrangement  or  agreement  retains  a  lien  over  the  goods 
until  the  freight  is  paid.  I  think  such  a  contract  might  be  made.  But 
when  one  is  asked  to  say  that  such  a  contract  was  made,  the  non- 
payment of  the  freight  is  a  very  important  element  leading  one  to  say 
that  no  such  contract  was  made  at  all.  In  this  case  I  cannot  help 
thinking  that  no  such  contract  was  made,  and  there  is  no  reason  why 
we  should  hold  that  it  was.  The  shipowner  acted  in  the  same  way  as 
if  it  had  not  been  made  and  in  no  other  way. 

Then  comes  an  argument  which  I  really  think  is  not  tenable,  and  I 
should  hardly  mention  it  if  it  were  not  for  the  great  importance  of 
everything  relating  to  the  Factors  Act  and  of  every  question  touching 
it  in  the  commercial  world.  It  was  argued  that  the  recent  Statute  40 
&  41  Vict.  c.  39  s.  5,  which  says  that  the  transfer  of  a  delivery  order 
or  any  other  document  of  title  shall  put  an  end  to  an  unpaid  vendor's 
right  to  countermand  that  delivery  order  and  to  keep  the  goods,  oper- 
ates just  to  the  same  extent  and  under  the  same  circumstances  as  in 
the  case  of  a  bill  of  lading  for  goods  at  sea.  In  order  to  make  out 
that  proposition  reliance  was  placed  upon  this  fact,  that  Messrs.  Wise- 
man, Mitchell,  &  Co.,  who  were  holders  of  the  bill  of  lading,  as  I  have 
already  said,  for  the  Bank  of  Scotland,  wrote  to  the  captain  of  the  ship 
saying,  kt  In  order  to  save  trouble  we  will  not  sign  delivery  orders  for 
salt,  but,  have  written  our  sircar  on  board  the  above  vessel  to  deliver 
salt  to  thosi   men  who  produce  cash  receipts  from  our  cashiers;"  and 


CHAP.  III.]  EX    PARTE    FALK.       IX    BE    KIELL.  411 

by  some  strange  process  of  reasoning  it  was  said  that  the  man  who 
brought  and  showed  to  the  sircar  of  Messrs.  Wiseman,  Mitchell,  &  Co. 
a  receipt  for  a  sum  of  money  paid  to  their  cashier  for  the  salt,  was  the 
holder  of  a  document  of  title  for  the  salt  in  such  a  way  that  the  in- 
dorsement of  it  could  put  an  end  to  the  right  of  stoppage  in  transitu 
by  Mr.  Falk.  Now  in  the  first  place  the  statute  in  question  was  never 
meant  to  have  that  effect.  In  the  next  place  it  is  an  abuse  of  language 
to  call  such  a  receipt  as  this  a  document  of  title  in  any  shape. 

Then  the  last  and  desperate  attempt  was  to  say  that  the  stoppage  in 
transit*  was  not  until  the  3th  of  August.  1  see  that  Lord  Brainwell 
takes  a  different  view  of  the  law  from  what  I  had  always  understood 
it  to  be.  I  had  always  myself  understood  that  the  law  was  that  when 
you  became  aware  that  a  man,  to  whom  you  had  sold  goods  which 
had  been  shipped,  had  become  insolvent,  your  best  way,  or  at  least  a 
very  good  way,  of  stopping  them  in  transitu  was  to  give  notice  to  the 
shipowner  in  order  that  he  might  send  it  on.  He  knew  where  his 
master  was  likely  to  be,  and  he  might  send  it  on  ;  and  I  have  always 
been  under  the  belief  that  although  such  a  notice,  if  sent,  cast  upon 
the  shipowner  who  received  it  an  obligation  to  send  it  on  with  reason- 
able diligence,  yet  if,  though  he  used  reasonable  diligence,  somehow 
or  other  the  goods  were  delivered  before  it  reached,  he  would  not  be 
responsible.  I  have  always  thought  that  a  stoppage,  if  effected  thus, 
was  a  sufficient  stoppage  in  transitu;  1  have  always  thought  that 
when  the  shipowner,  having  received  such  a  notice,  used  reasonable 
diligence  and  sent  the  notice  on,  and  it  arrived  before  the  goods  were 
delivered,  that  was  a  perfect  stoppage  in  transitu.  Consequently  I 
think  that  when  notice  was  given  to  the  shipowners  (and  although  thev 
had  signed  the  bill  of  lading  instead  of  the  master  signing  it,  I  'do  not 
think  that  that  makes  any  difference ;  I  only  mention  it  to  say  that  it 
makes  none)  they  were  under  an  obligation  to  forward  it  with  reason- 
able diligence,  if  they  could,  to  the  master. 

What  the  shipowners  did  was  this:  on  the  31st  of  July  they  sent  a 
telegram  (they  waited  two  days,  and  they  might  have  got  into  a  scrape 
by  that  means),  but  they  did  send  this  telegram  "Charterers  Carpa- 
thian failed,  unless  bill  of  lading  held  for  value,  don't  deliver."  That 
was,  as  it  strikes  me,  a  sending  forward  of  the  notice  to  stop  the  goods 
in  transitu:  it  was  tantamount  to  saying,  "We  send  to  our  captain 
the  notice  we  have  formally  received  ourselves  ;  "  and  consequently  I 
should  say  that  the  stoppage  in  transitu  was  complete  on  the  31st  of 
July.  But  it  is  not  necessary  to  decide  that  point,  for  it  is  clear 
enough  that  the  goods  were  not  then  delivered,  and  nothing  was  done 
which  could  be  called  a  delivery  of  the  whole  or  any  part  of  them  until 
the  3d  of  August,  when  a  person  brings  one  of  these  receipts  for.  I 
think,  1.000  maunds  of  salt,  or  some  small  quantity  of  salt,  and  gets  it 
delivered. 

Then  it  is  said  that  the  delivery  of  a  part  is  a  delivery  of  the  whole. 
It  may  be  a  delivery  of  the  whole.     In  agreeing  for  the  delivery  of 


412  EX   PARTE   FALK.      IN   RE   KIELL.  [CHAP.  III. 

goods  with  a  person  3-011  are  not  bound  to  take  an  actual  corporeal 
delivery  of  the  whole  in  order  to  constitute  such  a  deliver)-,  and  it  may 
very  well  be  that  the  delivery  of  a  part  of  the  goods  is  sufficient  to 
afford  strong  evidence  that  it  is  intended  as  a  delivery  of  the  whole. 
If  both  parties  intend  it  as  a  delivery  of  the  whole,  then  it  is  a  delivery 
of  the  whole  ;  but  if  either  of  the  parties  does  not  intend  it  as  a  de- 
liver)- of  the  whole,  if  either  of  them  dissents,  then  it  is  not  a  delivery 
of  the  whole.  I  had  always  understood  the  law  upon  that  point  to 
have  been  an  agreed  law,  which  nobody  ever  doubted  since  an  elabo- 
rate judgment  in  Dixon  v.  Yates,  5  B.  &  Ad.  313,  339,  by  Lord 
YYensleydale,  who  was  then  Parke,  J.  The  rule  I  had  always  under- 
stood, from  that  time  down  to  the  present,  to  be  that  the  delivery  of 
a  part  may  be  a  deliver)-  of  the  whole  if  it  is  so  intended,  but  that  it 
is  not  such  a  delivery  unless  it  is  so  intended,  and  I  rather  think  that 
the  onus  is  upon  those  who  say  that  it  was  so  intended.  Therefore  the 
delivery  of  this  particular  parcel  of  salt  was  not  a  delivery  of  anything 
else. 

What  we  are  now  dealing  with  is  the  delivery  of  the  salt  which  was 
delivered  after  the  5th  of  August,  and  which  was  quite  sufficient  to 
dispose  of  the  whole  sum  now  in  dispute.  We  do  not  need  to  inquire 
what  were  the  rights  in  any  particular  parcel  of  salt  delivered  on  the 
3d  of  August.  Supposing  that  those  were  mis-deliveries  no  harm 
would  happen,  as  quite  enough  remained  to  pay  the  Bank  of  Scotland, 
and  no  dispute  would  arise  about  that ;  there  is  no  complaint  by  any- 
body respecting  it.  The  present  question  is  with  regard  to  the  stop- 
page in  transitu  of  the  residue  after  an  undoubted  notice  of  stoppage 
in  transitu  was  served  upon  the  5th  of  August.  Is  that  subject  to  the 
rule  that  although  the  whole  of  the  cargo  could  not  be  stopped  because 
the  bill  of  lading  had  been  transferred  to  the  Bank  of  Scotland,  the 
interest  which  still  remained  in  Kiell  or  in  Kiell's  assigns  to  whom  he 
had  sold  it,  or  in  anybody  else  except  those  who  had  become  trans- 
ferees of  the  bill  of  lading,  might  be  stopped  and  might  become  vested 
in  Falk  the  original  vendor?  I  think  there  is  no  reason  why  it  should 
not ;  and  that  being  so,  the  judgment  of  the  court  below  is  right  and 
ought  to  be  affirmed.1 

Cohen,  Q.  C,  and  F.   Thompson,  for  the  appellant. 

Benjamin,  Q.  C,  Watkin  Williams,  Q.  C,  and  G.W.  Laiorance,  for 
the  trustee. 

1  Lords  Selbokne,  Watson,  and  Fitzgerald  delivered  concurring  opinions. 


CHAP.  III.J  BETHELL   V.    CLARK.  413 


BETHELL   &   CO.   v.   CLARK   &   CO. 
In  the  Queen's  Bench  Division,  Court  of  Appeal,  March  15,  1888. 

[Reported  in  20  Queen's  Bench  Division,  615.] 

Appeal  from  the  judgment  of  the  Queen's  Bench  Division  on  a  special 
case. 

The  facts  are  fully  stated  in  the  report  of  the  case  in  the  court  below 
(19  Q.  B.  D.  553).     For  the  purposes  of  this  report  they  may  be  briefly 
stated  as  follows  :  The  special  case  was  stated  on  interpleader  proceed- 
ings to  determine  the  title  to  the  possession  of  certain  goods.     The 
goods  had  been  sold  by  Clark  &  Co.,  iron-founders  at  Wolverhampton, 
to  Tickle  &  Co.,  of  London.     The  order  for  the  goods  did  not  specify 
any  place  to  which  they  were  to  be  sent,  but  on  June  28,  1885,  the  pur- 
chasers wrote  the  vendors  as  follows  :  "  Please  consign  the  ten  hogs- 
heads of  hollow  ware  to  the  'Darling  Downs,'  to  Melbourne,  loading  in 
the  East  India  Docks  here."     The  goods  were  delivered  by  the  vendors 
to  the  London  and  North  Western  Railway  Company,  to  be  forwarded 
to  the  ship.     They  were  accordingly  sent  by  railway  to  Poplar,  and 
taken  thence  to  the  ship  in  lighters  by  the  Thames  Steam  Tug  and 
Lighterage  Company,  as  agents  of  the  railway  company,  a  mate's  re- 
ceipt being  taken  for  them  on  shipment,  which  was  forwarded  to  the 
purchasers.      The  vendors  being  informed  that  the  purchasers  were 
insolvent  gave  notice  to  the  railway  company  to  stop  the  delivery  of 
the  goods  on  board  the  ship  ;  and  the  railway  company  gave  a  similar 
notice  to  the  lighter  company,  but  too  late  to  prevent  the  shipment  of 
the  goods  on  the  "  Darling  Downs."     Bills  of  lading  for  the  goods  in 
accordance  with  the  mate's  receipt  had  been  made  out  and  signed  ready 
for  delivery,  but,  not  having  been  applied  for  at  the  time,  they  remained 
in  the  possession  of  Bethell  &  Co.,  the  owners  or  agents  for  the  owners 
of  the  "  Darling  Downs,"  who  were  stakeholders  in  the  interpleader. 
Shortly  after  the  shipment  the  "Darling  Downs"  proceeded  to  Mel- 
bourne with  the  goods  on  board,  but  before  she  arrived  at  Melbourne 
the  vendors  wrote  to  the  shipowners  claiming  the  goods  as  their  prop- 
erty.    A  petition  in  bankruptcy  having  been  filed  by  the  purchasers  of 
the  goods,  a  scheme  of  arrangement  was  sanctioned  by  the  creditors, 
and  a  trustee  appointed  to  administer  their  estate  and  effects.     The 
goods  being  claimed  by  such  trustee  and  also  by  the  vendors,  the  ship- 
owners interpleaded.     The  question  for  the  court  was  whether  the  trus- 
tee or  the  vendors  were  entitled  to  the  possession  of  or  property  in  the 
goods. 

The  court  below  (Mathew  and  Cave,  JJ.)  gave  judgment  for  the 
vendors  on  the  ground  that  the  right  of  the  vendors  to  stop  the  goods 
in  transitu  continued  till  they  arrived  at  Melbourne. 


414  BETHELL  V.    CLARK.  [CHAP.  III. 

Willis,  Q.  C,  and  G.  E.  Lyon,  for  the  trustee. 

R.  T.  Raid,  Q.  C,  and  0.  C.  Plumptre,  for  the  vendors,  were  not 
called  upon. 

Lord  Esher,  M.  R.  In  this  case  the  vendors  being  unpaid  and  the 
purchasers  having  become  insolvent,  according  to  the  law  merchant  the 
vendors  had  a  right  to  stop  the  goods  while  in  transitu,  although  the 
property  in  such  goods  might  have  passed  to  the  purchasers.  The  doc- 
trine of  stoppage  in  transitu  has  always  been  construed  favorably  to 
the  unpaid  vendor.  The  rule  as  to  its  application  has  been  often  stated. 
When  the  goods  have  not  been  delivered  to  the  purchaser  or  to  any 
agent  of  his  to  hold  for  him  otherwise  than  as  a  carrier,  but  are  still  in 
the  hands  of  the  carrier  as  such  and  for  the  purposes  of  the  transit,  then, 
although  such  carrier  was  the  purchaser's  agent  to  accept  delivery  so  as 
to  pass  the  property,  nevertheless  the  goods  are  in  transitu  and  may 
be  stopped.  There  has  been  a  difficulty  in  some  cases  where  the  ques- 
tion was  whether  the  original  transit  was  at  an  end,  and  a  fresh  transit 
had  begun.  The  way  in  which  that  question  has  been  dealt  with  is  this  : 
where  the  transit  is  a  transit  which  has  been  caused  either  by  the  terms 
of  the  contract  or  by  the  directions  of  the  purchaser  to  the  vendor,  the 
right  of  stoppage  in  transitu  exists  ;  but,  if  the  goods  are  not  in  the 
hands  of  the  carrier  by  reason  either  of  the  terms  of  the  contract  or  of 
the  directions  of  the  purchaser  to  the  vendor,  but  are  in  transitu  after- 
wards in  consequence  of  fresh  directions  given  by  the  purchaser  for  a 
new  transit,  then  such  transit  is  no  part  of  the  original  transit,  and  the 
right  to  stop  is  gone.  So,  also,  if  the  purchaser  gives  orders  that  the 
goods  shall  be  sent  to  a  particular  place,  there  to  be  kept  till  he  gives 
fresh  orders  as  to  their  destination  to  a  new  carrier,  the  original  transit 
is  at  end  when  the}'  have  reached  that  place,  and  an}-  further  transit 
is  a  fresh  and  independent  transit.  The  question  is,  under  which  of 
these  heads  the  present  case  comes.  In  this  case  the  contract  does  not 
determine  where  the  goods  are  to  go.  It  is  argued  for  the  vendors  that 
directions  were  given  by  the  purchasers  to  the  vendors  that  the  goods 
should  be  forwarded  by  carriers  to  Melbourne,  so  that  while  they  were 
in  the  hands  of  any  of  the  different  sets  of  carriers  who  would  necessa- 
rily be  employed  in  so  forwarding  them,  and  until  they  arrived  at  Mel- 
bourne, they  were  still  in  transitu.  The  question,  whether  that  is  so, 
is  a  question  of  fact  in  the  particular  case.  The  goods  were  purchased 
at  Wolverhampton,  and,  after  the  contract  was  made,  the  purchasers 
gave  directions  once  and  once  only  as  to  what  was  to  be  done  with  them. 
It  was  argued  that  those  directions  were  to  deliver  them  on  board  a  par- 
ticular ship  in  the  East  India  Docks,  and  that  there  were  no  directions 
beyond  the  directions  for  such  delivery,  but  that  a  fresh  direction  as  to 
the  ultimate  destination  of  the  goods  would  be  required  ;  and  therefore 
the  original  trunsitus  was  at  an  end  when  the  goods  were  put  on  board  the 
ship.  That  question  turns  on  the  true  construction  of  the  letter  of 
June  28,  which  says,  "Please  deliver  the  ten  hogsheads  of  hollow  ware 
to  the  '  Darling  Downs,'  to  Melbourne,  loading  in  the  East  India  Docks 


CHAP.  III.]  BETIIELL    V.    CLARK.  415 

here."  The  argument  really  amounted  to  saying  that  the  moaning  was 
that  the  goods  were  to  be  delivered  on  hoard  the  ship  to  he  kept  by 
those  in  charge  of  her  as  in  a  warehouse,  and  subject  to  orders  from  the 
purchasers  either  to  deliver  the  goods  back  again  out  of  the  ship  or  to 
take  them  on  where  the  ship  was  going.  That  cannot  be  the  business 
meaning  of  the  transaction.  Here  we  have  a  ship  loading  in  the  docks 
for  Melbourne,  and  the  captain  would  have  no  authority  to  receive  goods 
on  board  as  a  warehouseman,  or  for  any  purpose  but  to  be  carried  to 
Melbourne.  The  meaning  is  that  the  goods  were  to  be  delivered  on 
board  to  be  carried  to  Melbourne.  What  would  be  the  mode  in  which 
they  would  be  so  delivered?  They  would  be  put  on  board  and  the 
mate's  receipt  would  be  taken  for  them,  the  terms  of  which  would  show 
that  the  goods  were  received  for  carriage  to  Melbourne,  and  a  bill  of 
lading  would  afterwards  be  signed  in  the  terms  of  such  receipt.  That 
is  what  was  done  here. 

It  follows,  iu  my  opinion,  that  those  goods  were  in  the  hands  of  car- 
riers as  such,  and  in  the  course  of  the  original  transitus  from  the  time 
they  left  Wolverhampton  till  they  reached  Melbourne.  The  case  there- 
fore falls  within  the  doctrine  of  stoppage  in  transitu,  and  is  not  within 
the  class  of  cases  where,  goods  going  through  the  hands  of  a  number  of 
carriers,  at  some  stage  in  the  process  fresh  directions  are  required  from 
the  purchaser  as  to  further  carriage.  Here  no  such  further  directions 
were  required.  The  letter  of  June  28  gives  all  the  directions  necessary 
for  the  transit  to  Melbourne.  It  is  not  necessary  to  refer  to  all  the 
authorities  cited.  The  argument  of  the  counsel  for  the  trustee  is  di- 
rectly met  by  what  was  said  by  Bowen,  L.  J.,  in  Kendal  v.  Marshall, 
Stevens,  &  Co.,  11  Q.  B.  D.  356,  at  p.  369.  He  there  says  :  "  Where 
goods  are  bought  to  be  afterwards  despatched  as  the  vendee  shall  direct, 
and  it  is  not  part  of  the  bargain  that  the  goods  shall  be  sent  to  any  par- 
ticular place,  in  that  case  the  transit  only  ends  when  the  goods  reach 
the  place  ultimately  named  by  the  vendee  as  their  destination.  In 
Coates  v.  Railton,  6  B.  &  C.  422,  several  cases  were  cited  by  Bayley.  J., 
in  the  course  of  his  judgment,  and  the  principle  to  be  deduced  from 
them  is,  that  where  goods  are  sold  to  be  sent  to  a  particular  destina- 
tion, the  transitus  is  not  at  an  end  until  the  goods  have  reached  the 
place  named  by  the  vendee  to  the  vendor  as  their  destination."  In  fflc 
parte  Miles,  15  Q.  B.  D.  39,  I  cited  the  test  laid  down  by  Lord  Ellen- 
borough  in  Dixon  v.  Baldwen,  5  East,  175,  where  he  says,  -'the  goods 
had  so  far  gotten  to  the  end  of  their  journey  that,  they  waited  for  new 
orders  from  the  purchaser  to  put  them  again  in  motion,  to  communicate 
to  them  another  substantive  destination,  and  that  without  such  orders 
they  would  continue  stationary;"  and,  applying  that  rule  to  the  case 
then  before  me,  I  held  that  the  goods  had  in  that  case  sot  to  the  end 
of  their  journey  when  they  arrived  at  Southampton.  That  would  not 
be  the  case  here  ;  when  the  goods  wore  put  on  board  the  ship,  thev 
would  be  in  motion  without  any  fresh  orders  being  necessarv  until  thev 
reached  Melbourne.     Therefore,  in  my  opinion,  the  right  to  stop  in 


41 G  ROWLEY   V.    BIGELOW.  [CHAP.  III. 

transitu  still  existed,  and  was  rightly  exercised  by  the  vendors.  I  think 
the  decision  of  the  court  below  was  correct,  and  that  this  appeal  must 
be  dismissed.1  Appeal  dismissed.2 


DAVID   ROWLEY   et  al.   v.   BENJAMIN   BIGELOW  et  al. 
In  the  Supreme  Judicial  Court  of  Massachusetts,  1832. 

[Reported  in  12  Pickering,  307.] 

Trovek  for  627  bushels  of  3'ellow  corn,  valued  at  55  cents  a  bushel. 

At  the  trial  before  Wilde,  J.,  it  was  proved  by  the  plaintiffs,  that  on 
the  24th  of  May,  1830,  the  corn  belonged  to  them  and  was  in  their 
possession  in  the  city  of  New  York,  on  board  the  sloop  "Milan,"  of 
which  S.  Dunning,  one  of  the  plaintiffs,  was  master,  and  that  it  was 
measured  and  delivered  on  board  the  schooner  "  Lion."  They  alleged 
that  one  William  N.  Martin,  a  merchant  there,  fraudulently  obtained 
possession  of  it  by  pretending  to  purchase  it  for  cash  ;  and  it  was 
proved  that  on  the  25th  of  May  he  shipped  it  on  board  the  "  Lion," 
consigned  to  the  defendants  at  Boston,  and  that  the  vessel  sailed  in 
the  afternoon  of  that  da}-  for  Boston.  On  the  26th,  Dunning,  having 
ineffectually  demanded  paj-ment  for  the  corn,  at  Martin's  counting- 
house,  proceeded  to  Boston,  to  reclaim  it.  He  reached  Boston  before 
the  arrival  of  the  "  Lion,"  and  on  the  29th  gave  notice  to  the  defend- 
ants, to  whom  by  Martin's  orders  the  corn  was  to  be  delivered,  that 
Martin  had  fraudulently  obtained  it  from  the  plaintiffs  and  that  they 
intended  to  repossess  themselves  of  it.  On  the  30th,  when  the  "  Lion" 
had  arrived  in  Boston  harbor,  Dunning  boarded  her  and  demanded  of 
the  master  possession  of  the  corn,  giving  him  notice  that  Martin  had 
obtained  it  fraudulently  from  the  plaintiffs.  The  master  notwithstand- 
ing delivered  it  to  the  defendants  ;  after  which  Dunning  demanded  it 
of  them  and  tendered  them  an}'  freight  or  charges  which  they  had  paid. 
They  refused  to  deliver  the  corn,  and  thereupon  the  suit  was  commenced. 

In  order  to  establish  the  fraud  on  the  part  of  Martin,  the  plaintiffs 
relied  on  the  depositions  of  C.  A.  Jackson  and  others,  merchants  in 
New  York,  who  testified  that  Martin  had  made  similar  purchases  of 
them  about  the  same  time,  and  under  circumstances  tending  to  show 
that  he  was  insolvent,  and  that  he  knew  it  and  had  no  reasonable 
expectation  of  paying  for  the  merchandise  according  to  his  contract. 
The  defendants  objected  to  the  admission  of  these  depositions,  but  the 
judge  permitted  them  to  be  read  to  the  jury. 

The  defendants,  to  establish  their  right  to  hold  the  corn  against  the 
plaintiffs,  offered  in  evidence  a  bill  of  lading,  dated  May  17,  1830, 
signed  by  the  master  of  the  "  Lion,"  purporting  to  be  for  2,000  bushels 

1  Fry  awl  Lopes,  L.  J.L,  delivered  concurring  opinions. 

2  Lyons  v.  Hoffnung,  15  App.  Cas.  391,  accord.  Con/.  Re  Gurney,  67  L.  T.  Rep.  598. 


CHAP.  III.]  ROWLEY  V.   BIGELOW.  417 

of  yellow  corn  shipped  by  Martin  and  consigned  to  the  defendants ; 
also  an  invoice  corresponding  to  the  bill  of  lading  and  purporting  to 
be  for  2,000  bushels  of  corn  consigned  to  the  defendants  for  sale  on 
the  shipper's  account,  and  signed  by  .Martin  ;  also  a  letter  from  Martin 
to  the  defendants,  dated  May  17  (to  which  the  bill  of  lading  and 
invoice  were  annexed)  advising  that  lie  valued  on  them  in  favor  of 
Henry  Bennett  for  $1,000,  at  ten  days'  sight,  and  directing  them,  if  he 
had  valued  too  much  on  this  shipment,  to  charge  it  to  some  previous 
one.  there  being  an  existing  account  between  Martin  and  the  defend- 
ants. And  it  was  proved  that  a  bill  drawn  accordingly  by  Martin. 
was  accepted  by  the  defendants  on  the  20th  of  Ma\'  and  paid  by  them 
at  maturity. 

There  was  no  evidence  that  the  defendants  had  any  knowledge  of 
the  fraudulent  conduct  of  Martin,  but  it  appeared  that  they  received 
the  bill  of  lading  and  invoice  and  accepted  the  draft  in  the  usual  course 
of  business. 

Upon  this  evidence  the  judge  ruled,  that  the  defendants  had  a  good 
title  to  the  property  notwithstanding  the  fraudulent  conduct  of  Martin, 
and  notwithstanding  the  bill  of  lading  had  been  signed  before  the  corn 
was  shipped  ;  to  which  the  plaintiffs  excepted. 

A  verdict  was  taken  for  the  defendants  by  consent ;  and  if  the  whole 
court  should  be  of  opinion  that  they  had  a  valid  title  to  the  corn, 
under  the  invoice  and  bill  of  lading,  judgment  was  to  be  rendered 
upon  the  verdict ;  but  if  the  court  should  be  of  opinion  that  the  ruling 
was  wrong,  the  verdict  was  to  be  set  aside  and  the  defendants  defaulted, 
unless  the  court  should  also  be  of  opinion  that  the  depositions  above 
mentioned  were  improperly  admitted  ;  in  which  case  a  new  trial  was  to 
be  granted. 

Fletcher  and  W.  J.  Hubbard,  for  the  plaintiffs. 

Curtis,  for  the  defendants. 

Shaw,  C.  J.  2.  It  is  next  contended  on  the  part  of  the  plaintiffs, 
that  no  property  passed  by  the  fraudulent  purchase  of  Martin,  from 
the  plaintiffs  to  him,  so  as  to  enable  him  to  make  a  title  to  the 
defendants. 

The  evidence  clearly  shows  that  there  was  a  contract  of  sale,  and 
an  actual  delivery  of  the  goods,  by  their  being  placed  on  board  a 
vessel,  pursuant  to  his  order:  and  this  delivery  was  unconditional, 
unless  there  was  an  implied  condition  arising  from  the  usage  of  the 
trade  that  the  delivery  was  to  be  considered  revocable,  unless  the  corn 
should  be  paid  for,  pursuant  to  the  contract  and  to  such  usage.  This 
contract  and  delivery  were  sufficient  in  law  to  vest  the  property  in 
Martin,  and  make  a  good  title,  if  not  tainted  by  fraud.  But  being 
tainted  by  fraud,  as  between  the  immediate  parties,  the  sale  was  void- 
able, and  the  vendors  might  avoid  it  and  reclaim  their  property.  But 
it  depended  upon  them  to  avoid  it  or  not,  at  their  election.  They 
might  treat  the  sale  as  a  nullity  and  reclaim  their  goods  ;  or  affirm  it 
and  claim  the  price.     And  cases  may  be  imagined,  where  the  vendor, 

27 


418  ROWLEY   V.   BIGELOW.  [CHAP.  III. 

notwithstanding  such  fraud  practised  on  him,  might,  in  consequence  of 
obtaining  security,  by  attachment  or  otherwise,  prefer  to  affirm  the 
sale.  The  consequence  therefore  is,  that  such  sale  is  voidable,  but 
not  absolutely  void.  The  consent  of  the  vendor  is  given  to  the  trans- 
fer, but  that  consent  being  induced- by  false  and  fraudulent  representa- 
tions, it  is  contrary  to  justice  and  right,  that  the  vendor  should  suffer 
by  it.  or  that  the  fraudulent  purchaser  should  avail  himself  of  it ;  and 
upon  this  ground,  and  for  the  benefit  of  the  vendor  alone,  the  law 
allows  him  to  avoid  it. 

The  difference  between  the  case  of  property  thus  obtained,  and  prop- 
erty obtained  by  felony,  is  obvious.  In  the  latter  case,  no  right  either 
of  property  or  possession  is  acquired  and  the  felon  can  convey  none. 

We  take  the  rule  to  be  well  settled,  that  where  there  is  a  contract  of 
sale,  and  an  actual  delivery  pursuant  to  it,  a  title  to  the  property 
passes,  but  voidable  and  defeasible  as  between  the  vendor  and  vendee, 
if  obtained  by  false  and  fraudulent  representations.  The  vendor  there- 
fore can  reclaim  his  property  as  against  the  vendee,  or  any  other 
person  claiming  under  him  and  standing  upon  his  title,  but  not  against 
a  bona  fide  purchaser  without  notice  of  the  fraud.  The  ground  of 
exception  in  favor  of  the  latter  is,  that  he  purchased  of  one  having  a 
possession  under  a  contract  of  sale,  and  with  a  title  to  the  property 
though  defeasible  and  voidable  on  the  ground  of  fraud  ;  but  as  the 
second  purchaser  takes  without  fraud  and  without  notice  of  the  fraud 
of  the  first  purchaser,  he  takes  a  title  freed  from  the  taint  of  fraud. 
Parker  ?;.  Patrick,  5  T.  R.  175.  The  same  rule  holds  in  regard  to  real 
estate.     Somes  v.  Brewer,  2  Pick.  184. 

3.  Another  ground  is,  that  the  plaintiffs  had  a  right  to  stop  in 
transitu,  and  exercised  that  right,  in  sufficient  season,  by  demanding 
the  goods  of  the  master  on  his  arrival  at  Boston,  and  before  the  goods 
reached  the  hands  of  the  defendants. 

The  right  of  stoppage  in  transitu  is  nothing  more  than  an  extension 
of  the  right  of  lien,  which  by  the  common  law  the  vendor  has,  upon 
the  goods,  for  the  price,  originally  allowed  in  equity  and  subsequently 
adopted  as  a  rule  of  law.  By  a  bargain  and  sale  without  delivery  the 
property  vests  in  the  vendee  ;  but  where  by  the  terms  of  sale,  the 
price  is  to  be  paid  on  delivery,  the  vendor  has  a  right  to  retain 
the  goods  till  payment  is  made,  and  this  right  is  strictly  a  lien,  a  right 
to  detain  and  hold  the  goods  of  another  as  security  for  the  payment  of 
some  debt,  or  performance  of  some  duty.  But  when  the  vendor  and 
vendee  are  at  some  distance  from  each  other,  and  the  goods  are  on 
their  way  from  the  vendor  to  the  vendee,  or  to  the  place  by  him  ap- 
pointed for  their  delivery,  if  the  vendee  become  insolvent  and  the 
vendor  can  repossess  himself  of  the  goods,  before  they  have  reached 
the  hands  of  the  vendee  or  the  place  of  destination,  he  has  a  right  so 
to  do,  and  thereby  regain  his  lien.  This  however  does  not  rescind 
the  contract,  but  only  restores  the  vendor's  lien,  and  it  can  only  take 
place  when  the  property  has  vested  in  the  vendee. 


CHAP.  IN.]  ROWLEY    V.    BIGELOW.  419 

Without  considering  what  would  have  been  the  effect  of  the  hill  of 
hiding  in  defeating  the  vendor's  right  to  stop  in  transitu,  hud  the 
place  of  destination  been  Boston,  we  are  of  opinion  that  upon  another 
ground,  the  right  did  not  exist  in  the  present  case. 

What  does  or  does  not  constitute  a  journey's  end,  and  the  termina- 
tion of  the  transit,  ma}-,  in  many  cases,  be  a  question  of  difficulty  and 
has  often  been  a  subject  of  discussion.  But  here  we  think  it  very  clear, 
that  a  delivery  of  the  corn  on  board  of  a  vessel  appointed  by  the  ven- 
dee to  receive  it,  not  for  the  purpose  of  transportation  to  him,  or  to  a 
place  appointed  by  him  to  be  delivered  there  for  his  use,  but  to  he 
shipped  hy  such  vessel,  in  his  name,  from  his  own  place  of  residence 
and  husiness  to  a  third  person,  was  a  termination  of  the  transit,  and 
the  right  of  the  vendor  to  stop  in  transitu  was  at  an  end.  Isoble  v. 
Adams,  7  Taunt.  59. 

4.  It  is  contended  that  the  defendants  were  not  purchasers  for  a 
valuable  consideration  and  bona  fide,  so  as  to  be  entitled  to  the  bene- 
fit of  the  exception  in  their  favor.  But  we  are  of  opinion  that  they 
do  stand  in  that  relation,  and  are  entitled  to  the  benefit  of  it.  It  ap- 
pears that  they  advanced,  either  in  cash  or  by  the  acceptance  of 
Martin's  drafts  in  favor  of  third  persons,  to  an  amount  equal  to  the 
value  of  the  goods,  and  that  after  having  been  furnished  with  bill  of 
lading  and  invoice  and  in  the  ordinary  course  of  business.  The 
ground  upon  which  the  plaintiffs  rely  is,  that  at  the  time  the  bill  of 
lading  was  signed,  the  corn  was  not  on  board,  and  in  fact,  as  appears 
by  a  comparison  of  dates,  had  not  been  purchased  of  the  plaintiffs. 
This  was  undoubtedly  irregular ;  and  if  done  by  collusion  between 
Martin  and  the  master  to  enable  the  former  to  get  money  or  credit  on 
the  bill  of  lading,  was  a  gross  fraud  upon  any  person  deceived  by  it. 
But  it  is  not  perceived  how  the  plaintiffs  can  avail  themselves  of  this, 
supposing  it  to  be  a  fraud.  A  bill  of  lading  is  a  contract  of  carriage 
for  hire,  by  which  the  master  engages  to  deliver  the  goods  to  the 
shipper  or  his  order,  and  so  is  ^rm'-negotiable.  It  operates  by  way 
of  estoppel  against  the  master  and  also  against  the  shipper  and 
indorser. 

The  bill  of  lading  acknowledges  the  goods  to  be  on  board,  and  regu- 
larly the  goods  ought  to  be  on  board  before  the  bill  of  lading  is  signed. 
But  if  through  inadvertence  or  otherwise,  the  bill  of  lading  is  signed 
before  the  goods  are  on  board,  upon  the  faith  and  assurance  that  they 
are  at  hand,  as  if  they  are  received  on  the  wharf  ready  to  be  shipped. 
or  in  the  shipowner's  warehouse,  or  in  the  shipper's  own  warehouse, 
at  hand  and  ready,  and  afterwards  they  are  placed  on  board,  as  and 
for  the  goods  embraced  in  the  bill  of  lading,  we  think,  as  against  the 
shipper  and  master,  the  bill  of  lading  will  operate  on  these  goods  by 
way  of  relation  and  by  estoppel. 

It  is  asked,  how  long  after  the  signature  of  the  bill  of  lading  prop- 
erty may  be  delivered  on  board,  so  as  to  be  bound  by  it  and  become 
the  subject  on  which  it  shall  operate.     We  think,  at  any  time  whilst 


420  BECKER   V.    HALLGARTEN.  [CHAP.  III. 

the  vessel  is  taking  in  her  cargo  for  that  vo3-age,  as  described  in  the 
bill  of  huling,  and  before  she  sails  upon  it.  Here  there  was  a  time 
when  the  bill  of  lading  might  have  been  properly  signed  by  the  master, 
namely,  after  the  corn  was  delivered  and  before  the  vessel  sailed  ;  and 
it  is  admitted  that  this  was  received  as  and  for  the  corn  mentioned  in 
the  bill  of  lading.  And  it  can  make  no  difference  to  the  plaintiffs, 
whether  the  bill  of  lading  was  signed  after  this  shipment,  or  a  few 
days  before,  in  anticipation  of  such  shipment.  Supposing,  then,  that 
when  the  goods  were  shipped,  as  against  the  shipper  and  master  the 
bill  of  lading  operated  upon  this  property,  and  would  have  hound  the 
master  to  deliver  it  to  the  consignee,  as  we  think  it  would,  then,  b}* 
the  uniform  course  and  practice  of  merchants,  the  bill  of  lading  repre- 
sents the  property,  and  any  bona  fide  title  for  valuable  consideration 
obtained  by  a  transmission  or  negotiation  of  the  bill  of  lading  gives  as 
valid  and  effectual  a  title  to  the  goods  as  could  be  obtained  by  an 
actual  delivery  of  the  goods  themselves.  The  defendants  have  shown 
such  a  title,  and  therefore  the  order  of  the  court  must  be 

Judgment  on  the  verdict.1 


BECKER  v.   HALLGARTEN. 
New  York  Court  of  Appeals,  Juke  1  —  October  4,  1881. 

[Reported  in  86  New  York,  167.] 

Appeal  from  judgment  of  the  General  Term  of  the  Court  of  Common 
Pleas  in  and  for  the  city  and  county  of  New  York,  entered  upon  an 
order  made  Ma}'  10,  1880,  which  affirmed  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  decision  of  the  court  on  trial  without  a  jury. 

This  action  was  for  the  alleged  wrongful  conversion  of  certain  goods. 

The  following  facts  appeared  :  — 

The  firms  of  Wilhelm  &  Boerner,  and  Boas  &  Stern,  were  merchants 
in  Berlin,  Germany.  Prior  to  August  2,  1876,  Wilhelm  &  Boerner 
sold  to  Boas  &  Stern,  on  credit,  three  cases  of  goods,  and  delivered  to 
them  invoices  of  the  same.  The  court  found  the  sale  was  completed. 
By  direction  of  Boas  &  Stern  the  goods  were  sent,  by  the  vendors,  in 
two  shipments,  to  the  plaintiff,  Becker,  at  Bremen.  Emil  Goldstein 
was  a  banker  in  Berlin.  On  the  2d  of  August,  187G,  he  was  applied  to 
by  Boas  &  Stern  for  a  loan  of  3,000  marks,  and  agreed  to  make  it 
upon  the  security  of  the  goods  and  bills  of  lading  ;  and  it  is  also  found 
that  he  did,  on  that  day,  make  the  loan,  "  taking  as  security  for  repay- 
ment those  goods."  Boas  &  Stern  gave  an  order  on  Becker  to  hold 
them  subject  to  the  order  and  direction  of  Goldstein,  and  on  the  same 
day  Goldstein  sent  the  order  to  Becker,  and  directed  him,  in  writing, 

1   A  portion  of  the  ..pinion  relating  to  the  admissibility  of  evidence  is  omitted. 


CHAP.  III.]  BECKER   V.    HALLCARTEN.  421 

to  send  the  three  cases  by  steamer  to  Hallgarteu  &  Co.  (the  defend- 
ants), New  York.  He  also  wrote  to  that  firm,  informing  them  that  he 
had  shipped,  "  through  the  house  of  Becker/'  to  your  order  and  ad- 
dress, the  goods,  tw  and  request  you  to  deliver  the  same  to  L.  Stern,  of 
New  York,  on  payment  of  3,000  marks  and  fees  and  expenses." 
L.  Stern,  so  named,  was  not  a  member  of  the  firm  of  Boas  &  Stern. 
On  the  4th  of  August,  in  compliance  with  these  directions,  Becker 
shipped  the  goods  to  the  defendants,  and  procured  duplicate  bills  of 
lading,  declaring  him  to  be  the  shipper,  and  that  the}'  were  to  be  deliv- 
ered to  Hallgarten  &  Co.,  or  their  assigns.  One  of  these  bills  he  sent 
to  the  defendants  with  a  letter,  in  which,  referring  to  the  bill  of  lading 
as  inclosed  and  to  the  goods  described  in  it,  he  says:  "You  will  dis- 
pose of"  (them)  "  as  per  instructions  of  Emil  Goldstein."  He  also 
sent  a  duplicate  bill  of  lading  to  Boas  &  Stern,  they  sent  it  to  Gold- 
stein, and  he  to  the  defendants,  with  instructions  similar  to  those 
before  referred  to.  The  court  found  that,  on  August  l'Jth,  k'  the 
plaintiff,  in  behalf  of  Wilhelm  &  Boerner  b}'  cable  to  defendants, 
stopped  the  goods  in  transitu,  and  they  having  the  bills  of  lading, 
thereafter  agreed  to  hold  them  for  plaintiff's  account."  On  the  Gth  of 
October,  187G,  Wilhelm  &  Boerner  executed  a  paper  in  these  words: 
"The  undersigned  hereby  assign  to  Heinrich  Becker,  of  Bremen,  our 
claim  on  accepted  draft  for  2,500  marks,  and  1,562.55  marks  balance  of 
account,  with  all  rights  unto  us  belonging."  On  the  Gth  of  November 
the  plaintiff  demanded  the  goods  of  the  defendants,  offering  to  pay 
their  charges.  The  court  also  found  that  the  bills  of  lading  delivered 
to  Goldstein  and  sent  to  defendants  were  not  indorsed,  and  that  by 
the  Commercial  Code  of  the  German  Empire,  in  force  in  Berlin  in 
August,  187G,  the  transfer  of  the  legal  title  to  goods  covered  by  a 
bill  of  lading  can  only  be  made  by  the  written  indorsement  by  the 
consignee. 

Further  facts  appear  in  the  opinion. 

Samuel  Hand,  for  appellants. 

Lewis  Sanders,  for  respondent. 

Danforth,  J.  Becker  was  at  no  time  in  the  course  of  these  trans- 
actions the  agent  or  representative  of  the  vendors.  Until  and  including 
the  shipment  of  the  goods  he  was  the  agent  of  Boas  &  Stern,  the  ven- 
dees, or  of  Goldstein.  He  obeyed,  as  was  proper,  at  the  different 
stages  of  the  affair,  first  one  and  then  the  other  of  these  parties.  If  h^s 
special  character  ceased  with  the  shipment,  he  neither  entered  the 
employ  of  the  vendors,  nor  did  he  act  under  any  instruction  received 
from  them.  The  finding,  therefore,  that  in  behalf  of  the  vendors  he 
stopped  the  goods,  is  without  evidence  to  support  it.  Assuming,  in 
the  next,  place  (for  the  purpose  only  of  this  discussion),  that  by  the 
assignment  above  set  out,  he  became  vested  with  a  vendor's  right  to 
stop  goods  while  on  their  way  to  an  insolvent  purchaser,  it  is  one  which, 
we  think,  cannot  be  exercised  in  this  case,  lor  the  reasons:  First,  that 
the  transit  was  over  before  the  goods  left  Germany.     They  were  sent  !>v 


422  BECKER   V.    IIALLGAKTEN.  [CHAP.  III. 

the  vendors  to  Becker,  as  the  vendees'  agent  at  Bremen.  The  shipment 
was  preceded  by,  and  was  in  consequence  of,  a  request  by  B.  &  8.  to  the 
vendors,  '"to  send  the  boxes"  to  Becker  "  at  our  disposition."  There- 
fore, on  the  28th  of  July,  informing  Becker  of  the  shipment  to  him,  kt  at 
the  request  of  and  for  account  of  Messrs.  B.  &  S.,  of  Berlin,"  they  write,  we 
have  sent  you  part  of  the  goods  in  question,  and  "  request  you  to  cany 
out  the  further  instruction  of  said  parties  concerning  the  same  ;  "  and 
in  the  next  letter,  communicating  the  shipment  of  the  balance,  they 
say,  "  and  request  you  hereby  to  let  Messrs.  B.  &  S.  have  the  further 
disposal  thereof."  It  is  obvious,  then,  that  the  impulse  impressed 
upon  the  goods  by  the  vendors  carried  them  only  to  Bremen.  Some 
other  action  was  necessary  on  the  part  of  the  vendees  before  they 
moved  again.  The}-,  at  that  point,  transferred  the  goods  to  Goldstein, 
and  made  them,  in  the  hands  of  Becker,  subject  to  his  order.  The 
trial  court  finds  not  only  a  "  taking  of  the  goods  by  him  as  security," 
but  that  Boas  &  Stern  "directed  Becker  to  hold  and  ship  the  goods 
according  to  Goldstein's  directions."  This  was  done.  The  bills  of 
lading  were  issued  in  favor  of  strangers  to  the  vendees,  and  who  repre- 
sent a  party  having  actual  custody  and  the  right  of  disposition.  The 
shipment  and  the  consignment  by  the  vendors  ended  at  Bremen.  At 
that  place  new  interests  attached,  in  promotion  of  which  the  goods 
Mere  sent  forward.  The  only  consignment  by  W.  &  B.  was  to  Becker 
at  Bremen. 

It  has  been  held  that  the  delivery  to  the  vendee,  which  puts  an  end 
to  the  state  of  passage,  ma}T  be  at  a  place  where  he  means  the  goods  to 
remain  until  a  fresh  destination  is  communicated  to  them  by  orders 
from  himself.  Valp}'  v.  Gibson,  4  C.  B.  837  ;  Biggs  v.  Barry,  2  Curt. 
259  ;  Bolton  v.  L.  &  Y.  R.  W.  Co.,  L.  R.  1  Com.  PL  439  ;  also  Dixon 
v.  Baldwen,  5  East,  175  ;  and  this  case  is  approved  in  Covell  v.  Hitch- 
cock, 23  Wend.  611.  In  the  case  before  us,  it  is  plain  that  they  had 
reached  the  place  for  which  they  were  intended,  under  the  direction 
given  by  the  vendors,  and  had  come  under  the  actual  control  of  the 
vendees.  Dixon  v.  Baldwen,  supra,  is  commented  upon  in  Harris  v. 
Pratt,  17  N.  Y.  249,  and  distinguished  from  the  rule  thought  applicable 
to  the  facts  of  that  case.  There  the  suspense  in  transportation  was 
temporary,  and  to  be  resumed  at  a  future  time  in  the  direction  already 
given  by  the  vendors.  But,  in  the  case  before  us,  not  onky  is  the  actual 
ttict  like  that  in  Dixon  v.  Baldwen,  but  if  the  detention  at  Bremen  was 
originally  intended  only  to  give  the  vendees  an  opportunity  to  determine 
by  which  of  several  routes,  or  at  what  time,  as  in  Harris  v.  Pratt,  the 
goods  should  go  on,  we  have  the  additional  vital  circumstance  before 
adverted  to  of  a  complete  possession  and  control  by  the  vendees,  and 
its  transfer  to  a  third  party,  who  also  took  the  actual  possession  and 
control  of  the  goods,  and  has  since  retained  them.  Neither  Harris  v. 
Pratl  nor  any  of  the  other  cases  cited  by  the  appellant  go  to  the  extent 
of  upholding  the  vendor's  lien  in  such  a  case. 

Second.     The  transaction  between  Goldstein  and  the  vendees  was 


CHAP.  III.]  BECKER    V.    HALLGARTEN.  423 

effectual  to  pass  the  property  to  him  and  so  deprive  the  vendors  of  the 
right  of  stoppage  if  it  otherwise  existed.  That  right  may  always  be 
defeated  by  indorsing  and  delivering  a  bill  of  lading  of  the  goods  to  a 
bona  fide  indorsee  for  a  valuable  consideration,  without  notice  of  the 
facts  on  which  the  right  of  stoppage  would  otherwise  exist.  This  was 
held  in  Lickbarrow  v.  Mason,  2  T.  K.  63,  and  has  since  been  deemed 
established.  It  does  not  impair  the  force  of  this  position  that  the 
money  was  in  fact  advanced  before  the  delivery  of  the  bill  of  lading. 
The  goods  were  in  the  possession  of  Goldstein  when  he  paid  over  the 
money.  The  bill  of  lading  was  promised  and  was  part  of  the  consider- 
ation on  which  the  money  was  paid,  but  more  than  all,  he  had  the  right, 
under  the  authority  given  to  him  by  B.  &  8.,  to  take  the  bill  of  lading 
in  any  form,  and  it  was  made  out  for  his  benefit.  City  Bk.  v.  R.  W.  & 
O.  R.  K.,  44  N.  Y.  136.  Nor  is  it  material,  unless  made  so  by  the  Ger- 
man law  {infra),  that  the  bill  of  lading  was  not  indorsed.  It  was  not 
necessary  that  it  should  be.  Hallgarten  &  Co.  were  Goldstein's  agents, 
subject  to  his  control,  and  in  making  the  bill  of  lading  in  their  names 
as  consignees  all  was  effected  which  the  indorsement  of  a  bill  taken  in 
the  name  of  B.  &  S.  would  have  accomplished.  The  cases  cited  by  the 
respondent  (Meyerstein  v.  Barber,  L.  R.  2  Com.  PI.  45  ;  Short  v. 
Simpson,  1  id.  255)  show  that  a  bill  so  indorsed  has  the  same  effect, 
even  if  the  ship  containing  the  goods  was  at  sea,  as  deliver}'  of  the 
goods  themselves.  Here  there  was  a  delivery  of  the  goods  to  Goldstein, 
and  the  bill  of  lading  followed  the  possession. 

Third.  The  German  law,  as  set  out  in  evidence,  has  no  application 
to  the  case  in  hand.  It  applies  when  the  bill  of  lading  is  taken  in  the 
name  of  the  vendee,  or  of  some  person  through  whom  the  party  claim- 
ing its  benefit  must  make  title.  The  observations  already  made  show 
that,  in  our  opinion,  this  is  not  the  plaintiff's  position.  Nor  are  the 
defendants  estopped  from  disputing  the  plaintiff's  title.  There  is  no 
finding  of  any  fact  upon  which  such  doctrine  can  rest;  no  change  of 
position  by  the  plaintiff;  a  promise,  at  most,  by  the  defendants  without 
consideration,  in  violation  of  duty  to  their  principals  and  in  fraud  of 
their  rights.  If  it  forms  the  foundation  of  any  action,  it  cannot  be  one 
the  effect  of  which  is  to  deprive  a  third  party  of  his  property,  or  subject 
the  defendant  to  a  second  action  by  the  real  owner  of  the  goods.  The 
right  of  stoppage,  when  it  exists,  depends  upon  equit}-,  and  that  of  the 
defendants,  by  virtue  of  their  representative  character,  is  superior  in 
any  view  to  the  plaintiff's.  If  liable  at  all,  it  wrould  be  upon  their 
assumpsit  to  keep  the  goods  on  his  account.  But  what  damages  could 
the  plaintiff  show  from  the  breach  of  an  agreement  to  keep  for  him,  or 
subject  to  his  order,  goods  to  which  another  person  was  entitled,  and 
whose  claim  was  as  to  him  exclusive? 

Some  other  grounds  are  urged  by  the  respondent  on  which  he  claims 
the  judgment  may  be  sustained.  They  have  been  examined,  and  are 
deemed  untenable.  The  reasons  for  this  conclusion  need  not  be  stated, 
since  however  decided,  they  would  be  insufficient  to  overcome  the 
appellants'  objections  which  have  been  already  declared  well  taken. 


424  NEWHALL   V.    CENTRAL    PACIFIC    R.    R.    CO.  [CHAP.  III. 

The  judgment  appealed  from  should  be  reversed  and  a  new  trial 
granted,   with  eosts  to  abide  the  event. 

All  concur,  except  Folger,  Ch.  J.,  absent  from  argument. 

Judgment  reversed. 


NEWHALL  v.  CENTRAL  PACIFIC  R.  R.  CO. 

Supreme  Court  of  California,  July,  1876. 

[Reported  in  51  California,  345.] 

Crockett,  J.  This  case  comes  up  on  the  findings,  and  there  is,  there- 
fore, no  controversy  as  to  the  facts  ;  the  only  question  being,  whether 
the  plaintiffs  are  entitled  to  judgment  on  the  facts  found.  The  facts 
necessary  to  a  correct  understanding  of  the  only  question  of  law  in  the 
case  are,  that  a  mercantile  firm  in  New  York  sold  certain  merchandise 
on  credit  to  a  similar  firm  in  San  Francisco,  and  shipped  the  same  in 
the  usual  course  of  business,  by  railway,  to  the  vendees  as  consignees, 
under  bills  of  lading  in  the  usual  form.  The  bills  of  lading  were  re- 
ceived at  San  Francisco  by  the  consignees  before  the  goods  arrived ; 
and  while  the  merchandise  was  in  transit,  in  the  custody  of  the  defend- 
ant as  a  common  carrier,  the  consignees  failed,  and  became  insolvent, 
and  thereupon  the  vendors  notified  the  defendant  in  writing  that  they 
stopped  the  goods  in  transitu  ;  that  the  vendees  had  become  insolvent, 
and  the  goods  were  not  paid  for,  and  that  they  must  not  be  delivered 
to  the  consignees,  but  to  the  vendors.  The  plaintiffs  then  were,  and 
for  manv  years  had  been,  auctioneers  and  commission  merchants,  doing 
business  in  San  Francisco,  and  had  been  in  the  habit  of  receiving  from 
the  consignees  bills  of  lading  and  goods  under  them,  for  sale  on  com- 
mission. About  two  hours  after  the  notice  of  stoppage  in  transitu  was 
served  upon  the  defendant,  the  consignees  indorsed  and  delivered  the 
hills  of  lading  to  the  plaintiffs,  who,  on  the  faith  thereof  and  of  the 
goods  named  therein,  "  advanced  a  sum  of  money  to  the  consignees 
in  the  usual  course  of  business;"  and  the  sum  so  advanced  was  to  be 
•reimbursed  out  of  the  proceeds  of  the  goods,  which  were  to  be  sold  at 
auction  by  the  plaintiffs.  At  the  time  of  the  indorsement  and  transfer 
of  the  bills  of  lading  to  the  plaintiffs,  they  had  no  notice  that  the  con- 
signees were  in  failing  circumstances,  or  had  failed,  or  that  any  notice 
of  stoppage  in  transitu  had  been  served  upon  the  defendant.  "While 
the  goods  were  still  in  the  possession  of  the  defendant  as  a  common 
carrier,  the  plaintiffs,  as  holders,  exhibited  to  the  defendant  the  bills 
of  lading,  tendered  the  charges,  and  demanded  a  delivery  of  the  goods, 
which  was  refused,  and  Iho  action  is  to  recover  their  value. 

The  question  involved  being  one  of  great  practical  importance,  it  has 
been  discussed  by  counsel,  both  orally  and  in  printed  arguments,  with 


CHAP.  III.]  NEWHALL   V.    CENTRAL    PACIFIC    R.    R.    CO.  425 

Learning  and  ability.  But  after  the  most  careful  research,  they  have 
failed  to  call  to  our  attention  a  single  adjudicated  case  in  which  the 
precise  question  under  review  has  been  decided  or  discussed.  There 
are  numerous  decisions,  both  in  England  and  America,  to  the  effect 
that  where  goods  are  consigned  by  the  vendor  to  the  vendee,  under  bills 
of  lading  in  the  usual  form,  as  in  this  case,  an  attempt  by  the  vendor 
to  stop  the  goods  in  transitu  will  be  unavailing  as  against  an  assignee 
of  the  bill  of  lading,  who  took  it  in  good  faith,  for  a  valuable  consider- 
ation, in  the  usual  course  of  business,  before  the  attempted  stoppage. 
The  leading  case  on  this  point  is  Lickbarrow  v.  Mason,  2  Term  R.  63, 
the  authority  of  which  has  been  almost  universally  acquiesced  in  by  the 
the  courts  and  text-writers,  in  this  country  and  in  England.  There 
being  little  or  no  conflict  in  the  authorities  on  the  point  adjudicated  in 
that  case,  it  would  be  useless  to  recapitulate  them  here.  But  it  is  im- 
portant to  ascertain  the  principles  which  underlie  these  decisions,  that 
we  may  determine  to  what  extent,  if  at  all,  they  are  applicable  to  the 
case  at  bar.  The  first,  and,  as  I  think,  the  controlling  point  deter- 
mined in  these  cases,  is,  that  by  the  bill  of  lading  the  legal  title  to  the 
goods  passes  to  the  vendee,  subject  only  to  the  lien  of  the  vendor  for 
the  unpaid  price  ;  which  lien  continues  only  so  long  as  the  goods  are  in 
transit,  and  can  be  enforced  only  on  condition  that  the  vendee  is  or 
becomes  insolvent  while  the  goods  are  in  transit. 

On  the  failure  of  each  of  these  conditions,  the  right  of  stoppage  is 
gone  and  the  lien  ceases,  even  as  against  the  vendee.  But  it  is  further 
settled  by  these  adjudications,  that  if  the  bill  of  lading  is  assigned,  and 
the  legal  title  passes  to  a  bona  fide  purchaser  for  a  valuable  considera- 
tion before  the  right  of  stoppage  is  exercised,  the  lien  of  the  vendor 
ceases  as  against  the  assignee,  on  the  well-known  principle  that  a  secret 
trust  will  not  be  enforced  as  against  a  bona  fide  holder  for  value  of 
the  legal  title.  In  such  a  case,  if  the  equities  of  the  vendor  and  assignee 
be  considered  ecpial  (and  this  is  certainly  the  light  most  favorable  to 
the  vendor  in  which  the  transaction  can  be  regarded),  the  rule  applies 
that  where  the  equities  are  equal  the  legal  title  will  prevail.  But  in 
such  a  case  it  would  be  difficult  to  maintain  that  the  equities  are  equal. 
The  vendor  has  voluntarily  placed  in  the  hands  of  the  vendee  a  muni- 
ment of  title,  clothing  him  with  the  apparent  ownership  of  the  goods; 
and  a  person  dealing  with  him  in  the  usual  course  of  business,  who  takes 
an  assignment  for  a  valuable  consideration.  ••  without  notice  of  such  cir- 
cumstances as  render  the  lull  of  lading  not  fairly  and  honestly  assign- 
able," has  a  superior  equity  to  that  of  the  vendor  asserting  a  recent 
lien,  known  perhaps,  only  to  himself  and  the  vendee.  Brewster  /■. 
Sime.  42  Cal.  130. 

These  being  the  conditions  which  determine  and  control  the  relative 
rights  of  the  vendor  and  assignee,  where  the  assignment  is  made  before 
the  notice  of  stoppage  is  given,  precisely  the  same  principles,  in  my 
Opinion,  are  applicable  when  the  assignment  is  made  after  the  carrier  is 
notified  by  the  vendor.      Notwithstanding  the  notice  to  the  carrier,  the 


426  DIEM   V.   KOBLITZ.  [CHAP.  III. 

vendor's  lien  continues  to  be  onlv  a  secret  trust  as  to  a  person,  who,  in 
the  language  of  Mr.  Benjamin,  in  his  work  on  Sales,  section  8GG,  takes 
an  assignment  of  a  bill  of  lading  "  without  notice  of  such  circumstance 
as  renders  the  bill  of  lading  not  fairly  and  honestly  assignable."  The 
law  provides  no  method  by  which  third  persons  are  to  be  affected  with 
constructive  notice  of  acts  transpiring  between  the  vendor  and  the  car- 
rier ;  and  in  dealing  with  the  vendee,  whom  the  vendor  has  invested 
with  the  legal  title  and  apparent  ownership  of  the  goods,  a  stranger, 
advancing  his  money  on  the  faith  of  this  apparently  good  title,  is  not 
bound,  at  his  peril,  to  ascertain  whether,  possibly,  the  vendor  may  not 
have  notified  a  carrier  —  it  may  be  on  some  remote  portion  of  the  route 
—  that  the  goods  are  stopped  in  transitu.  If  a  person,  taking  an  as- 
signment of  a  bill  of  lading,  is  to  encounter  these  risks,  and  can  take 
the  assignment  with  safety  only  after  he  has  inquired  of  the  vendor, 
and  of  every  carrier  through  whose  hands  the  goods  are  to  come, 
whether  a  notice  of  stoppage  in  transition  has  been  given,  it  is  quite 
certain  that  prudent  persons  will  cease  to  advance  money  on  such  securi- 
ties, and  a  very  important  class  of  commercial  transactions  will  be  prac- 
tically abrogated.  In  my  opinion  the  judgment  should  be  affirmed, 
and  it  is  so  ordered.  Judgment  affirmed. 


DIEM  v.  KOBLITZ. 

Supreme  Court  of  Ohio,  January  19,  1892. 

[Reported  in  49  Ohio  St.  41.] 

Error  to  the  Superior  Court  of  Cincinnati. 

The  action  was  brought  by  Koblitz  Brothers  against  Frederick  J. 
Diem,  and  the  declaration  set  forth  that  on  August  15,  1894,  the  de- 
fendant sold  the  plaintiff  a  quantity  of  paper  bags  for  $3,084.80,  to  be 
paid  in  equal  portions  in  thirty,  sixty,  and  ninety  days.  The  defendant 
set  apart  the  goods  and  delivered  a  large  portion  to  a  carrier  for  ship- 
ment to  the  plaintiff  in  Cleveland,  but  on  August  23,  1884,  he  cancelled 
the  sale  and  disposed  of  the  goods.  The  plaintiff  had  agreed  to  resell 
the  goods  at  an  advance  of  twenty-five  per  cent,  and  being  unable  to 
carry  out  that  sale  was  greatly  injured.  The  defendant's  answer  denied 
the  allegations  of  the  declaration  and  alleged  that  the  plaintiffs  were 
insolvent  when  he  stopped  the  goods  in  the  carrier's  hands.  The 
plaintiffs'  replication  denied  the  allegation  of  insolvency,  and  stated 
that  they  were  ready  and  willing  to  pay  for  the  goods,  and  had  accepted 
drafts  for  the  price.1 

lit'  cause  was  tried  to  a  jury,  and  a  verdict  obtained  by  the  plain- 
tiffs, upon  which  judgment  was  subsequently  rendered.  On  the  trial, 
the  court  excluded  evidence  offered  by  the  defendant,  to  prove  that  at 

1  'Die  statement  of  the  pleadings  has  been  abbreviated. 


CHAP.  111.]  DIEM   V.    KOBLITZ.  427 

the  time  of  the  purchase  of  the  goods  described  in  the  petition,  the 
plaintiffs  were  insolvent,  and  their  commercial  paper  had  gone  to  pro- 
tost  ;  and  ruled,  that  there  was  no  "  question  of  insolvency  in  the  case  ;  " 
that  the  action  was  "  simply  an  action  for  the  non-performance  of  a  con- 
tract ;  "  that  the  answer  admitted  "  the  non-performance,"  and  that 
there  was  "  nothing  left  but  tin;  measure  of  damages." 

The  court  accordingly  instructed  the  jury  as  follows  :  — 

"In  this  case  the  making  of  the  contract  to  sell,  and  the  fact  that  the 
goods  were  not  delivered,  but  were  sold  to  another  party  before  the 
time  when  any  of  the  drafts  became  due,  is  admitted,  and  that  in  my 
judgment  constitutes  a  breach  of  the  contract,  so  that  the  only  questions 
that  remain  for  the  consideration  of  the  jury  are  those  which  relate  to 
the  damages,  if  there  were  any,  to  Koblitz  Brothers,  by  reason  of  the 
failure  to  deliver  the  goods." 

And  the  following  instruction  requested  by  the  defendant  was 
refused  :  — 

tk  If  the  jury  find  that  plaintiffs  at  the  date  of  said  contract  were 
insolvent,  or  had  committed  an  overt  act  of  insolvency  by  stopping  the 
payment  of  their  commercial  paper,  and  defendant  having  been  in- 
formed of  said  insolvency,  and  by  reason  thereof  stopped  the  transit  of 
said  goods,  and  took  possession  of  the  same,  then  the}T  will  find  for 
defendant  unless  they  find  that  plaintiffs  tendered  performance  of  said 
contract  after  said  stoppage  in  transit  existed.'' 

Exceptions  were  taken  by  the  defendant  to  the  foregoing  rulings  of 
the  court,  the  instructions  to  the  jury,  and  the  refusal  to  instruct  as 
requested,  which  were  embodied  in  a  bill  of  exceptions  duly  allowed 
and  made  part  of  the  record. 

A  motion  of  the  defendant  for  a  new  trial  was  overruled,  and  he  pros- 
ecuted error  to  the  general  term,  where  the  judgment  of  the  special 
term  was  affirmed,  and  to  obtain  the  reversal  of  the  judgments  below 
he  prosecutes  error  to  this  court. 

Thomas  McDougall,  for  plaintiff  in  error. 

Henry  C  Oettinger,  and  Frank  Seinsheimer,  for  defendant  in 
error. 

Williams,  C.  J.  The  contract  of  the  parties,  as  shown  by  the  plead- 
ings, was  one  for  the  sale  of  goods  on  credit ;  the  plaintiffs  agreeing  to 
give  their  commercial  paper  for  the  purchase  price,  payable  at  the  times 
stipulated.  As  no  time  was  specified  in  the  contract  for  the  delivery  of 
the  goods,  the  defendant's  obligation  was  to  deliver  them  when  the 
plaintiffs  gave  their  commercial  paper,  as  they  agreed  to  do,  or  within 
a  reasonable  time.  The  petition  avers  that  the  plaintiffs  were  at  all 
times  ready  to  perform  their  part  of  the  contract,  and,  that  they  re- 
quested performance  by  the  defendant,  which  was  by  him  refused.  The 
answer  denies  these  averments,  and  alleges,  that  the  plaintiffs  became, 
and  were  insolvent,  and  their  commercial  paper  dishonored  ;  and.  upon 
this  information  coming  to  the  defendant,  after  part  of  the  goods  had 
been  delivered  to  the  carrier  for  shipment,  he  stopped  them  in  transit, 


428  DIEM   V.   KOBLITZ.  [CHAP.  III. 

resumed  possession,  and  afterwards  resold  them  with  the  other  goods 
included  in  the  contract,  for  the  same  price  plaintiffs  were  to  pay  for 
them.  The  reply  denies  the  insolvency  of  the  plaintiffs,  and  avers  that 
they  accepted  drafts  drawn  by  defendant  on  them  for  the  whole  pur- 
chase price  of  the  goods,  payable  in  accordance  with  the  contract. 

The  view  which  the  court  below  took  of  the  case,  was,  that  the  resale 
of  the  goods,  as  alleged  in  the  answer,  was  a  breach  of  the  contract  b}- 
the  defendant,  which  gave  the  plaintiffs,  notwithstanding  their  insol- 
vency, an  immediate  right  of  action  against  him  for  damages.  Hence, 
proof  of  the  insolvency  of  the  plaintiffs  was  excluded,  as  immaterial, 
and  the  case  was  submitted  to  the  jury  as  involving  no  inquiry  except 
the  amount  of  the  plaintiffs'  damages. 

We  do  not  understand  it  to  be  claimed,  that  the  defendant,  upon 
learning  of  the  plaintiffs'  insolvency,  might  not  lawfully  retake  the 
goods  while  they  were  yet  in  the  custody  of  the  carrier ;  nor,  that  he 
was  bound  to  deliver  any  part  of  the  goods  so  long  as  tiie  insolvency  of 
the  plaintiffs  continued.  The  claim  is,  that  the  right  of  the  vendor  in 
such  case,  is  simply  to  retain  possession  of  the  property  until  the  pur- 
chase price  is  paid  ;  and  therefore,  a  resale  by  him  before  the  expira- 
tion of  the  credit,  puts  it  out  of  his  power  to  deliver  to  the  first  vendee, 
and  so  constitutes  a  breach  of  the  contract  with  him,  for  which  he  may, 
though  insolvent,  maintain  a  special  action  for  damages.  Whether  this 
claim  is  correct  or  not,  is  the  principal  question  in  the.  case. 

The  right  of  stoppage  in  transitu,  is  the  right  of  the  vendor  to 
resume  possession  of  the  goods  sold,  while  they  are  in  transit  to  the 
vendee,  who  is  insolvent,  or  in  embarrassed  circumstances.  Actual 
insolvency  of  the  vendee  is  not  essential.  It  is  sufficient  if  before  the 
stoppage  in  transitu,  he  was  either  in  fact  insolvent,  or  had,  by  his 
conduct  in  business,  afforded  the  ordinary  apparent  evidences  of  insol- 
vency.1    Nor  is  the  vendor's  right  abridged,  or  in  any  way  affected  by 

1  "  It  is  not  an  unlimited  power  that  is  vested  in  the  consignor,  to  vary  the  consign- 
ment at  his  pleasure  in  all  cases  whatever.  It  is  a  privilege  allowed  to  the  seller,  for 
the  particular  purpose  of  protecting  him  from  the  insolvency  of  the  consignee.  Cer- 
tainly it  is  not  necessary  that  the  person  should  he  actually  insolvent  at  the  time.  If 
the  insolvency  happen  before  the  arrival,  it  would  he  sufficient  to  justify  what  has 
been  done,  and  to  entitle  the  shipper  to  the  benefit  of  his  own  provisional  caution. 
But  if  the  person  is  not  insolvent,  the  ground  is  not  laid  on  which  alone  such  a  privi- 
lege is  founded."     The  Constantia,  6  C  Rob.  .321,  326. 

'•  This  statement  of  the  doctrine  of  stoppage  in  transitu,  which  is  supported  by  such 
high  authorities,  does  not  sustain  the  proposition,  that  a  vendee,  insolvent  at  the  time 
of  the  sale  of  the  goods,  and  still  remaining  insolvent,  can  object  to  their  stoppage  in 
transitu,  lie  could  only  complain  when  his  insolvency  was  known  to  the  vendor  at  the 
time  of  sale,  and  the'  contract,  was  made  in  view  of  such,  his  condition.  'I  lie 
object  in  allowing  the  privilege  to  the  vendor  being  his  protection  against  the  insol- 
vency of  the  vendee,  such  privilege,  unless  waived  by  the  vendor,  ought  properly  to 
extend  to  cases  of  insolvency,  whether  existing  at  the  time  of  Bale,  or  occurring  at 
;m\  time  before  the  actual  delivery  of  the  goods.  A  vendee  who  disputes  the  right  of 
stoppage  in  transitu,  must  he  prepared  to  a\  er,  as  in  the  case  of  Wilmshurst  v.  Bowker, 
•j  M.  x  <;.  7'tL',  which  was  an  action  by  a  vendee  against  a  vendor  for  improperly  stop- 
ping tie-  delivery  of  goods, that  he  was  neither  bankrupt  nor  insolvent.     Independently 


CHAP.  III.]  DIEM   V.    KOBLITZ.  429 

the  fact  that  he  has  received  the  vendee's  bills  of  exchange,  or  other 
negotiable  securities  for  the  whole  price,  even  though  they  have  been 
negotiated  and  are  still  outstanding.  It  seems  to  be  well  settled,  that 
when  the  right  of  stoppage  in  transitu  is  properly  exercised,  the  effect 
is  to  restore  the  vendor  to  precisely  the  same  position  as  if  the  goods 
had  never  left  his  possession.  He  has  the  same  rights  with  respect  to 
the  property,  and  they  may  be  enforced  in  the  same  way.  His  right  lo 
intercept  the  goods  before  they  reach  the  hands  of  the  vendee,  and  his 
right  to  withhold  those  still  in  his  possession,  rest  upon  the  same  just 
principle  that  the  insolvent  vendee  cannot  require  the  vendor  to  deliver 
the  goods  or  perform  the  contract  when  he  himself  is  unable  to  pay  for 
them,  or  perform  the  contract  on  his  part.  To  require  the  goods  to  be 
delivered  to  such  vendee  would  simply  result  in  the  application  of  the 
property  of  one  man  to  the  payment  of  another  man's  debts.  The  right 
of  the  unpaid  vendor,  with  respect  to  the  goods,  is  sometimes  called  a 
lien;  and  it  is  a  lien,  in  the  sense  that  the  vendee,  upon  payment  or 
tender  of  the  price,  but  not  otherwise,  ma)'  recover  them.  But  it  is 
something  more  than  a  mere  common  law  lien,  which  is  only  a  naked 
right  of  possession.  With  the  goods  in  his  possession,  the  vendor  has 
a  special  property  in  them,  which  is  parcel  of  his  original  ownership. 
Whether  the  effect  of  the  stoppage  in  transitu,  or  the  retention  of  the 
goods  by  the  vendor,  on  the  discover}'  of  the  vendee's  insolvency,  is  to 
rescind  the  contract,  or  not,  has  been  the  subject  of  much  discussion, 
and  some  authors  say  the  question  is  not  yet  definitely  settled.  But 
the  prevailing  opinion  now  is,  we  believe,  that  the  contract  is  not, 
necessarily,  rescinded,  unless  the  parties  by  their  conduct  so  treat  it; 
that  conclusion,  being  most  favorable  to  the  vendor,  for  whose  protec- 
tion the  doctrine  of  stoppage  in  transitu  was  first  established  :  for.  if 
the  exercise  of  the  right  operated  to  rescind  the  contract,  the  vendor 
would  be  deprived  of  the  remedy,  which  it  is  now  generally  conceded  he 

of  any  circumstances  to  the  contrary,  the  vendue  might  have  the  benefit  of  a  presump- 
tion of  ability  to  comply  with  his  contract,  and  the  burden  of  showing  insolvency 
might  he  cast  on  the  vendor.  It  may  be  that  this  would  he  sufficiently  shown  by  the 
proof  of  an  overt  act  of  insolvency,  such  as  a  stoppage  of  payment,  though,  in  fact,  an 
actual  insolvency,  in  the  sense  of  not  having  means  adequate  to  the  payment  of  debts, 
night  not  exist.  If  the  vendee,  before  the  stoppage  in  transitu,  had,  by  his  conduct  in 
business,  afforded  the  ordinary  apparent  evidences  of  insolvency,  he  ought  not  to  com- 
plain of  the  precautionary  measure  taken  by  the  vendor,  though  it  should  turn  out 
that  he  was  ultimately  able  to  pay.  But.  though  no  such  evidences  of  insolvency 
should  precede  the  stoppage  in  transitu,  still,  if  the  fact  of  insolvency  existed,  the  ven- 
dee ought  not  to  complain.  This,  at  least,  is  clearly  to  be  inferred  from  the  language 
of  the  authority  which  has  been  cited,  and  appears  entirely  reasonable  and  proper. 
Fair  dealing  will  be  better  insured  by  leaving  to  the  vendor  his  privilege  of  stoppage 
in  transitu,  in  all  cases  of  insolvency,  whether  evidenced  by  the  ordinary  accompanying 
acts,  or  shown  actually  to  exist.  The  rights  of  a  fair  vendee  will  be  sufficiently  pro- 
tected by  giving  him  an  indemnity  when  the  right  of  stoppage  in  transitu  is  exercised 
upon  rumor  or  suspicion  without  any  foundation  in  fact,  and  by  depriving  the  vendor, 
in  all  cases,  of  any  chance  of  speculating  npon  the  goods,  by  requiring  them  to  be 
delivered  or  accounted  for  to  the  vendee,  or  his  assignee,  on  the  payment  or  tender  of 
the  agreed  price."     Benedict  v.  Schaettle,  12  <  >hio  St.  515,  519. 


430  DIEM   V.    KOBLITZ.  [CHAP.  Ill 

has  in  a  proper  case,  upon  a  resale  of  the  goods,  to  hold  the  vendee,  or 
the  assignee  of  his  estate,  for  the  loss  sustained  through  his  non-per- 
formance  of  the  contract,  or  in  consequence  of  a  fall  in  the  market 
price.  And,  as  the  stoppage  does  not  rescind  the  contract  of  sale,  it 
follows,  that  the  vendee,  or  his  assignee,  may  obtain  the  goods  on  pa}'- 
ment  of  the  price  ;  or,  if  the  vendee  was  able  and  ready  to  perform 
the  contract  on  his  part,  he  may  recover  damages  for  the  failure  of 
the  seller  to  deliver  the  property  according  to  its  terms.  But  can  the 
vendee  maintain  such  action  if  he  is  not  able  to  perform?  And  does 
his  insolvency  at  the  time  fixed  for  the  deliveiy  of  the  property,  amount 
to  such  inability?  Or,  where  the  sale  is  upon  credit,  does  a  resale  of 
the  property  by  the  vendor,  before  the  expiration  of  the  time  of  the 
credit,  give  the  insolvent  vendee,  notwithstanding  his  inability  to  pay 
for  the  goods,  a  right  of  action  against  the  vendor  for  the  difference 
between  the  contract  price  and  their  market  value,  at  the  time  of  the 
resale?  As  an  authority  sustaining  the  right  of  the  vendee  to  main- 
tain such  an  action  against  his  vendor,  Bloxam  v.  Sanders,  4  B.  &  C. 
941,  is  cited,  where  Bade}',  J.,  says  :  "  If  goods  are  sold  upon  credit, 
and  nothing  is  agreed  upon  as  to  the  time  of  delivering  the  goods,  the 
vendee  is  immediately  entitled  to  the  possession,  and  the  right  of  pos- 
session and  the  right  of  property  vest  at  once  in  him  :  but  his  right  of 
possession  is  not  absolute  ;  it  is  liable  to  be  defeated  if  he  becomes  insol- 
vent before  he  obtains  possession.  Whether  default  in  payment  when  the 
credit  expires  will  destroy  his  right  of  possession,  if  he  has  not  before 
that  time  obtained  actual  possession,  and  put  him  in  the  same  situation 
as  if  there  had  been  no  bargain  for  credit,  it  is  not  now  necessar}'  to 
inquire,  because  this  is  a  case  of  insolvency,  and  in  case  of  insolvency 
the  point  seems  to  be  perfectly  clear.  If  the  seller  has  despatched  the 
goods  to  the  buyer,  and  insolvency  occurs,  he  has  a  right  in  virtue  of 
his  original  ownership  to  stop  them  in  transitu.  Wiry?  Because  the 
property  is  vested  in  the  buyer,  so  as  to  subject  him  to  the  risk  of  any 
accident;  but  he  has  not  an  indefeasible  right  to  the  possession,  and 
his  insolvenc}-,  without  payment  of  the  price,  defeats  that  right.  And  if 
this  be  the  case  after  he  has  despatched  the  goods,  and  whilst  they  are 
in  transitu,  a  fortiori,  is  it  when  he  has  never  parted  with  the  goods, 
and  when  no  transitus  has  begun.  The  buyer,  or  those  who  stand  in 
his  place,  may  still  obtain  the  right  of  possession,  if  they  will  pay  or 
tender  the  price,  or  they  may  still  act  upon  their  right  of  property  if 
anything  unwarrantable  is  done  to  that  right.  If,  for  instance,  the 
original  vendor  sells  when  he  ought  not,  they  may  bring  a  special  action 
against  him  for  the  injury  they  sustain  by  such  wrongful  sale,  and  re- 
cover damages  to  the  extent  of  that  injury  ;  but  they  can  maintain  no 
action  in  which  right  of  property  and  right  of  possession  are  both  re- 
quisite, unless  they  have  both  those  rights."  Still  the  question  remains, 
when  is  the  resale  wrongful?  And  what  is  necessary  on  the  part  of  the 
vendee,  to  enable  him  to  maintain  the  action  for  the  resale,  was  not 
decided,  nor  does  it  appear  to  have  been  a  question  in  that  case.     The 


CHAP.  Ill]  DIEM    V.    KOBLITZ.  431 

action  was  trover,  to  the  maintenance  of  which,  the  right  of  possession 
was  essential. 

In  Smith's  Leading  Cases,  vol.  i.,  pt.  ii.,  p.  1199,  in  the  note  to  Lick- 
barrow  v.  Mason,  2  T.  R.  63,  it  is  said:  "  Supposing  the  contract  of 
sale  not  to  be  rescinded,  it  seems  to  follow,  that  the  goods,  while  de- 
tained, remain  at  the  risk  of  the  vendee,  and  that  the  vendor  can  have 
no  right  to  resell  them,  at  all  events  until  the  period  of  credit  is  expired  ; 
after  that  period,  indeed,  the  refusal  of  the  vendee,  or  his  representa- 
tives to  receive  the  goods  and  pay  the  price,  would  probably  be  held  to 
entitle  the  vendor  to  elect  to  rescind  the  contract."  The  only  authority 
cited  in  support  of  the  note  above  quoted,  is  the  case  of  Langford  '•. 
Tiler,  Salk.  113,  from  an  examination  of  which,  it  will  be  seen,  that  it 
does  not  meet  the  question.  The  full  report  of  the  case,  which  is 
very   brief,  is  as  follows  :  — 

"  The  defendant,  who  was  administratrix  to  her  late  husband,  used 
to  deal  in  tea  in  his  lifetime,  and  bought  four  tubs  of  the  plaintiff  at  so 
much  per  tub,  one  of  which  she  paid  for  and  took  away,  leaving  fifty 
pounds,  in  earnest  for  the  other  three;  and  Holt,  Chief  Justice,  ruled, 
1st,  That  the  husband  was  liable  upon  the  wife's  contract,  because  they 
cohabited.  2d,  That  notwithstanding  the  earnest,  the  money  must  be 
paid  upon  the  fetching  away  the  goods,  because  no  other  time  for  pa}"- 
ment  is  appointed.  3d,  That  earnest  only  binds  the  bargain,  and  gives 
the  party  a  right  to  demand  ;  but  then  a  demand  without  the  payment  of 
the  money  is  void.  4th,  That  after  earnest  given,  the  vendor  cannot  sell 
the  goods  to  another,  without  a  default  in  the  vendee  ;  and  therefore,  if 
the  vendee  does  not  come  and  pay  and  take  the  goods,  the  vendor  ought 
to  go  and  request  him  ;  and  then  if  he  does  not  come  and  pay,  and 
take  away  the  goods  in  convenient  time,  the  agreement  is  dissolved, 
and  he  is  at  liberty  to  sell  them  to  any  other  person."  The  sale,  it 
appears,  was  not  on  credit,  nor  was  the  purchaser  insolvent ;  nor  does 
the  case  hold  that  the  vendor  would  be  liable  in  damages  for  a  resale 
of  the  goods  without  a  request  made  of  the  vendee  to  receive  and  pay 
for  them,  if,  at  the  time,  he  was  not  ready  and  able  to  pay  the  purchase 
price.  On  the  contrary,  the  action  was  by  the  vendor  against  the  ven- 
dee, who  was  the  administratrix  of  her  husband's  estate,  to  charge  the 
estate  with  her  contract  of  purchase  ;  and  Lord  Holt  was  speaking  of 
what  was  necessary  to  be  done  by  the  vendor  to  enable  him  to  sue  for 
the  vendee's  breach  in  not  making  full  payment.  The  holding,  that  to 
entitle  the  seller  to  sue,  he  must  offer  to  perform  and  request  perform- 
ance by  the  purchaser,  is  in  accordance  with  the  now  generally  recog- 
nized rule  on  the  subject. 

The  general  rule  is,  that  in  contracts  of  bargain  and  sale,  where 
there  is  no  agreement  for  credit,  the  promise  of  the  vendor  to  sell  and 
deliver  the  property,  and  that  of  the  purchaser  to  pay  the  contract 
price,  are  mutually  dependent,  and  neither  party  is  bound  to  perform, 
without  contemporaneous  performance  by  the  other.  Payment,  or  ten- 
der of  the  price;  is  the  condition  upon  which  the  purchaser  can  require 


432  DIEM   V.    KOBLITZ.  [CHAP.  III. 

deliver}-  of  the  property  ;  and  delivery  or  tender  by  the  seller,  is  just  as 
essential  on  his  part  if  he  would  sue  for  the  price,  or  for  damages  for 
its  non-payment.  If  both  parties  are  unable  to  perform,  neither  can 
maintain  an  action  against  the  other;  and  therefore,  while  it  is  neces- 
sary for  the  vendor,  if  he  would  sue,  to  offer  performance  on  his  part,  he 
is  in  a  position  to  defend,  without  doing  so,  if  the  vendee  is  not  able  to 
perform.  In  Reader  v.  Knatchel,  5  T.  R.  218,  an  application  was  made 
of  the  rule,  which  is  much  in  point.  The  plaintiff  declared  upon  an 
agreement  by  the  defendant,  to  deliver  to  him  a  quantity  of  Manchester 
cottons.  The  defence  was,  that  after  the  making  of  the  contract,  the 
plaintiff  had  compounded  with  his  creditors.  Mr.  Justice  Butler 
directed  the  jury,  k"  that  if  they  believed  the  plaintiff  was  really  in  such 
a  situation  as  to  be  unable  to  pay  for  the  goods,  that  was  a  good  de- 
fence in  point  of  law  to  the  action  ;  and  the  jury  accordingly  found  a 
verdict  for  the  defendant." 

When  the  sale  is  upon  credit,  it  is  one  of  the  implied  conditions  of 
the  contract  that  the  vendee  shall  keep  his  credit  good  ;  his  promise  to 
pay  at  a  future  da}-,  involving  an  engagement  on  his  part  that  he  will 
remain,  and  then  be,  able  to  pay;  which  engagement  is  broken  when 
he  becomes  insolvent,  and  unable  to  pay,  and  hence  the  right  of  the 
vendor  to  then  stop  performance  of  the  contract  on  his  part.  Nor  is 
the  rule  varied  by  the  fact  that  the  vendee  has  given  his  notes  or  bills, 
or  other  securities  for  the  price,  payable  at  the  end  of  the  time  for 
which  the  credit  is  allowed.  The  vendor,  in  such  case,  incurs  no  lia- 
bility by  not  delivering  the  property,  unless  the  vendee  pay,  or  tender 
the  contract  price.  But  in  order  to  sue  the  vendee,  he  should  offer  to 
deliver  according  to  the  contract.  Such  is  the  scope  of  the  rule  laid 
down  in  Mining  Co.  v.  Brown,  124  U.  S.  385,  where  it  is  held  :  lk  The 
insolvency  of  the  vendee  in  a  contract  for  the  sale  and  future  delivery 
of  personal  property  in  instalments,  payment  to  be  made  in  notes  of 
the  vendee  as  each  instalment  is  delivered,  is  sufficient  to  justify  the 
vendor  for  refusing  to  continue  the  delivery,  unless  payment  be  made 
in  cash ;  but  it  does  not  absolve  him  from  offering  to  deliver  the  prop- 
erty in  performance  of  the  contract  if  he  intends  to  hold  the  purchasing 
party  to  it ;  he  cannot  insist  upon  damages  for  non-performance  by  the 
insolvent  without  showing  performance  on  his  own  part,  or  an  offer  to 
perform,  with  ability  to  make  the  offer  good." 

The  rule  must  work  both  ways.  The  rights  and  obligations  of  the 
vendor  and  vendee  are  correlative.  If  the  insolvency  of  the  vendee  is 
sufficient  to  justify  the  vendor  in  refusing  to  deliver  the  property,  unless 
payment  be  made  in  cash,  it  follows  that  the  vendor  incurs  no  liability 
by  his  refusal,  and  therefore  no  right  of  action  accrues  to  the  vendee, 
unless  payment  be  made  by  him.  And  if  the  vendor  cannot  insist  upon 
damages  for  the  vendee's  non-performance,  without  showing  an  offer  on 
his  part  with  the  ability  to  perform,  so,  neither  can  the  vendee,  if  he  is 
without  the  ability  to  perform,  recover  from  the  vendor.  The  observa- 
tions of  Gholson,  J.,  in  Benedict  v.  Schaettle,  12  Ohio  St.  520-521. 


CHAP.  III.]  DIEM    V.    KOBLITZ.  433 

are  in  point,  and  are  in  harmony  with  this  view  of  the  subject.  He 
says:  "If  the  true  principle  of  the  right  of  stoppage  in  transitu  be 
found  in  that  certainly  just  rule  of  mutual  contract,  by  which  either 
party  may  withhold  performance,  on  the  other  becoming  unable  to  per- 
form, on  his  part ;  if  the  foundation  of  the  rule  be  a  just  lien  on  the 
goods  for  the  price,  until  delivered,  an  equitable  lien  adopted  for  the 
purposes  of  substantial  justice,  then  it  is  the  ability  to  perform  the  con- 
tract—  to  pay  the  price  —  which  is  the  material  consideration.  If  there 
be  a  want  of  ability,  it  can  make  no  difference,  in  justice  or  good  sense, 
whether  it  was  produced  by  causes,  or  shown  by  acts,  at  a  period  before 
or  after  the  contract  of  sale.  Substantially,  to  the  vendor  who  is  about  to 
complete  delivery,  and  abandon  or  lose  his  proprietary  lien,  the  question 
is,  can  the  vendee  perform  the  contract  on  his  part;  has  he,  from  insol- 
venc}',  become  unable  to  pay  the  price?"  And  in  another  part  of  the 
opinion  he  further  says  :  "  The  rights  of  a  fair  vendee  will  be  sufficiently 
protected  by  giving  him  an  indemnity  when  the  right  of  stoppage  in  tran- 
situ is  exercised  upon  rumor  or  suspicion  without  any  foundation  in  fact, 
and  by  depriving  the  vendor,  in  all  cases,  of  any  chance  of  speculating 
upon  the  goods,  by  requiring  them  to  be  delivered  or  accounted  for  to  the 
vendee,  or  his  assignee,  on  the  payment  or  tender  of  the  agreed  price." 

But,  it  is  contended,  that  while  the  vendor  may  refuse  to  deliver  the 
property  to  the  insolvent  vendee,  he  is  obliged  to  keep  it  for  the  vendee 
until  the  time  of  the  credit  expires  ;  and,  if  he  resell  before  that  time, 
the  vendee  may  have  his  action  for  damages. 

When,  by  the  contract,  the  property  is  to  be  delivered  at  a  future  day, 
and  the  vendor  sells  it  to  another  before  that  time  arrives,  the  vendee, 
being  able  to  perform,  may  have  an  immediate  action  ;  for  the  vendor, 
by  thus  disabling  himself  from  performing  by  delivery  at  the  proper 
time,  commits  a  breach  of  the  contract,  and  the  vendee  need  not  wait 
until  the  time  for  the  delivery  arrives.  But  that  rule  has  no  application 
here.  The  obligation  of  the  vendor,  under  a  contract  like  that  between 
the  parties  in  this  case,  is  to  deliver  the  goods  at  the  time  stipulated  in 
the  agreement,  which  is  at  once,  upon  the  receipt  or  tender  of  the  pur- 
chaser's commercial  paper,  or  within  a  reasonable  time;  not  at  the 
time  to  which  the  credit  is  extended.  The  right  of  the  vendee  is  to 
receive  the  goods  at  the  time  the  vendor  contracts  to  deliver  them,  and 
he  is  not  bound  to  receive  them  at  any  other  time.  The  breach,  there- 
fore, on  the  part  of  the  vendor,  if  there  be  one,  consists  in  his  failure  to 
deliver  the  goods  according  to  the  contract,  and  occurs  at  that  time, 
and  not  upon  a  resale  subsequently  made;  and  the  vendee's  cause  of 
action  arises,  if  at  all,  upon  the  failure  to  deliver,  and  not  on  the  resale. 
In  the  case  now  before  us,  the  averments  of  the  defendant's  answer. 
which  on  the  trial  he  was  not  permitted  to  prove,  though  he  offered  to 
do  so,  show  that  at  the  time  the  goods  wrere  to  have  been  delivered,  ac- 
cording to  the  contract  of  sale,  the  plaintiffs  were  insolvent,  and  their 
paper  dishonored,  so  that  the  condition  upon  which  their  right  to  the 
goods  depended,  had  not  been  performed  by  them,  and  they  were  with- 


434  DIEM   V.    KOBLITZ.  [CHAP.  III. 

out  the  necessary  ability  to  perform  the  same.  Upon  what  just  prin- 
ciple can  the  seller  in  such  a  case  be  required  to  hold  the  goods  until 
the  expiration  of  the  credit?  It  is  true  that,  at  that  time,  the  vendee 
may  again  be  solvent,  and  able  to  pay.  There  is  no  presumption,  or 
assurance,  that  he  will.  If  any  presumption  arises,  it  is  rather,  that  the 
insolvency  will  continue,  which  is  more  in  accordance  with  the  experi- 
ence of  the  commercial  world.  But,  as  we  have  seen,  it  is  part  of  the 
vendee's  engagement,  that  he  will  maintain  his  credit,  which  is  broken 
by  his  insolvency.  And  it  would  be  unjust  to  require  the  vendor  to 
sustain  the  loss  resulting  from  the  destruction  or  deterioration  of  the 
goods  in  the  mean  time,  which,  in  man}-  instances,  must  ensue  if  the 
seller  is  compelled  to  keep  the  goods  shut  up,  and  take  the  risk  of  the 
future  solvency  of  the  buyer.  The  injustice  of  such  a  requirement  is  con- 
ceded where  the  goods  are  of  a  perishable  nature ;  and  the  vendor,  it 
is  now  settled,  is  not  obliged  to  keep  goods  of  that  character  until  the 
termination  of  the  credit.  In  the  notes  to  Lickbarrow  v.  Mason,  in 
Smith's  Leading  Cases,  vol.  i.,  pt.  ii.,  p.  1199,  it  is  said,  'kBut  what, 
it  will  be  said,  if  the  goods  be  of  so  perishable  a  nature  that  the  vendor 
cannot  keep  them  until  the  time  of  credit  has  expired?  In  such  a  case 
it  is  submitted  that  courts  of  law  having  originally  adopted  this  doctrine 
of  stoppage  in  transitu  from  equity,  would  act  on  equitable  principles 
by  holding  the  vendor  invested  with  an  implied  authority  to  make 
the  necessary  sale."  It  is  insisted,  however,  that  the  right  of  sale  in 
such  cases  constitutes  an  exception  to  the  rule.  In  our  opinion,  the 
reasons  upon  which  the  exception  rests,  if  it  be  such,  should  make 
the  exception  the  general  rule.  The  value  of  many  kinds  of  merchan- 
dise, not  perishable,  depends  largely  upon  their  being  in  the  market  at 
the  appropriate  seasons,  and  to  supply  temporary  demands  ;  and  if  not 
available  for  those  purposes,  at  the  proper  time,  they  become  compara- 
tively worthless,  or  so  reduced  in  value  as  to  entail  great  loss,  which 
may  be  less  only  in  degree,  though  greater  in  amount,  than  where  the 
goods  are  perishable  ;  and  it  is  no  more  just  or  equitable,  to  subject  the 
vendor  to  the  loss  in  the  one  case,  than  in  the  other.  The  right  of  re- 
sale ought  not,  we  think,  be  made  to  depend  upon  the  degree  or  extent 
of  the  loss  that  must  ensue,  if  it  should  be  denied.  It  rests  upon  a 
different  principle,  and  grows  out  of  the  failure  of  the  vendee  to  keep  his 
engagement.  Not  that  the  contract  is  thereby  rescinded,  for  that  would 
defeat  the  vendor's  remedy  for  damages  upon  resale  after  due  notice  ; 
but,  that  he  may  elect  to  treat  the  agreement  for  the  credit  as  at  an  end, 
on  account  of  the  vendee's  default.  We  see  no  good  reason  for  holding 
that  the  rights  of  the  seller  are  any  the  less  where  the  sale  is  upon  credit, 
and  the  property  is  retained  by  him  on  account  of  the  buyer's  insolvency, 
than  they  would  be  if  the  sale  were  for  cash,  and  the  vendee  was  unable 
to  pay  the  price  agreed  upon.  In  cither  case  the  incapacity  of  the  ven- 
dee to  perform  his  part  of  the  agreement — and  insolvency  is  incapa- 
city—  warrants  the  vendor  in  withholding  performance  on  his  part. 
We  are  therefore  of  opinion  the  trial  court  erred  in  excluding  the 


CHAP.  III.]  DIEM    V.    KOBLITZ.  435 

evidence  of  the  plaintiffs'  insolvency,  and  in  charging  the  jury  as  shown 
ill  the  statement  of  the  case  ;  and  in  also  refusing  the  instruction 
requested  by  the  defendant  therein  contained.  Counsel  have  argued  a 
question  relating  to  the  charge  of  the  court  on  the  measure  of  damages  ; 
but  as  no  exception  was  taken  to  the  charge  on  that  subject  it  will  not 
be  further  noticed.     For  the  errors  mentioned  above,  — 

The  judgments  below  are  reversed,  and  the  cause  remanded 
for  further  proceedings.  1 

1  "  When  the  price  of  goods  sold  on  credit  is  due  and  unpaid,  and  the  vendee  be- 
comes insolvent  before  obtaining  possession  of  them,  the  vendor's  right  to  the  property 
is  often  called  a  lien,  hut  it  is  greater  than  a  lien.  Iu  the  ahseuce  of  an  express  power 
the  lienor  usually  cannot  transfer  the  title  to  the  property  on  which  the  lien  exists  by 
a  sale  of  it  to  one  having  notice  of  the  extent  of  his  right,  hut  he  must  proceed  by  fore- 
closure. When  a  vendor  rightfully  stops  goods  in  transitu,  or  retains  them  before 
transitus  has  begun,  he  can,  by  a  sale  made  ou  uotice  to  the  vendee,  vest  a  purchaser 
with  a  good  title.  Dustan  v.  McAudrew,  44  N.  Y.  72.  His  right  is  very  nearlv  that 
of  a  pledgee,  with  power  to  sell  at  private  sale  in  case  of  default.  Bloxam  v.  San- 
ders, 4  B.  &  C.  941  ;  Bloxam  v.  Morley,  id.  951  ;  Milgate  v.  Kebhie,  3  M.  &  G.  100; 
Audenreid  v.  Randall,  3  Cliff.  99,  100;  Black.  Sal.  [2d  ed.]  445,  454,  459;  Beuj.  Sal'. 
[Corbin's  ed.]  §  1280;  Jones'  Liens,  §  802.  The  vendee  having  become  insolvent  and 
refused  payment  of  the  notes  given  for  the  purchase-price  of  the  property  which 
remained  in  the  vendor's  possession,  his  right  to  retain  it  as  security  for  the  price  was 
revived  as  against  the  vendee  and  his  attaching  creditor.  Arnold  v.  Delano,  4  Cush. 
33;  Haskell  v.  Rice,  11  Gray,  240;  Milliken  v.  Warren,  57  Maine,  46;  Clark  v. 
Draper,  19  N.  H.  419 ;  Bloxam  v.  Sanders,  4  B.  &  C.  941  ;  Bloxam  v.  Morley,  id.  951  ; 
Hamburger  o.  Rodman,  9  Daly,  93;  Benj.  Sal.  [Beunett's  ed]  §825;  2  id.  [Corbin's 
ed.]  §  1227  ;  Story  Sal.  §  285  ;  Black.  Sal.  454."    Tuthill  v.  Skidmore,  124  N.  Y.  148, 153. 


436  EAKL   OF   BRISTOL   V.    WILSMOBE.  [CHAP.  IV. 


CHAPTER   IV. 
FRAUD   AND   RELATED  MATTERS. 


SECTION    I. 

Fraud  on  the  Seller. 

EARL  OF  BRISTOL  v.  WILSMORE. 
In  the  King's  Bench,  April   24,   1823. 

[Reported  in  1  Barnewull  $•  Cresswell,  514.] 

Declaration  by  the  plaintiff,  as  chief  steward  of  the  liberty  of  Bury 
St.  Edmunds,  stated  that  Elizabeth  Carver  had  recovered  £400  ami 
costs  against  Wm.  Miller,  by  the  judgment  of  the  Court  of  King's 
Bench,  and  had  sued  out  a  testatum  Ji.  fa.,  directed  to  the  sheriff  of 
Suffolk,  to  lev}'  the  amount,  who  made  out  his  mandate  to  the  plaintiff, 
as  steward  of  the  liberty,  to  levy  that  sum  ;  that  the  plaintiff,  by  virtue 
of  the  mandate,  took  100  sheep,  which  were  then  feeding  in  a  field 
belonging  to  Miller;  that  while  the  sheep  were  in  the  custody  of  the 
plaintiff,  the  defendants  wrongfully  rescued  them  ;  by  means  whereof 
plaintiff  was  prevented  from  satisfying  the  debt  and  costs,  and  Elizabeth 
Carver  commenced  an  action  against  him  to  obtain  payment,  and  plaintiff 
was  obliged  to  expend  £100  in  compromising  that  action.  There  was 
also  a  count  in  trover.  Flea,  not  guilty.  At  the  trial,  before  Abbott, 
C.  J.,  at  the  Middlesex  sittings  after  last  Trinity  Term,  it  was  proved, 
on  the  part  of  the  plaintiff,  that  the  sheep  were  taken  in  execution  by 
an  officer  of  the  plaintiff,  under  a  mandate  of  the  sheriff  of  Suffolk,  as 
stated  in  the  declaration.  In  the  course  of  the  night  after  they  were 
seized  in  execution,  and  while  they  were  in  the  custody  of  the  officer, 
in  a  field  belonging  to  Miller,  next  adjoining  to  a  meadow  belonging 
to  the  defendant  Wilsmore,  Page  made  a  passage  for  the  sheep  into 
Wilsmore's  field.  The  latter  impounded  them,  and  the  next  morning 
delivered  them  to  Page,  14)011  his  paying  the  alleged  amount  of  the 
damage  done.  This  appeared  to  have  been  a  contrivance  between 
Wilsmore  and  Page,  in  order  to  enable  the  latter  to  obtain  possession 
of  the  sheep.  On  the  part  of  the  defendant  it  was  proved  that  Miller 
had  obtained  the  sheep  from  Page  under  the  following  circumstances. 
They  were  offered  to  him  for  sale  on  Wednesday,  the  16th  May,  1821, 
by  Lemon,  the  servant  of  Page,  and   Miller  agreed  to  pay  £78  in  ready 


SECT.  I.]  EARL   OF   BRISTOL   V.    WILSMORE.  437 

money  for  the  in.  The  bargain  being  made,  the  sheep  were  driven  by 
Lemon  to  the  house  of  Miller,  at  JSayland,  about  nine  miles  from  Col- 
chester. Upon  their  arrival  there,  Miller  prevailed  upon  Lemon  to  aeeept 
a  check  for  £78  upon  Miles  &  Co.,  bankers  at  Colchester,  by  assuring 
him  that  it  was  as  good  as  money.  Miller's  account  at  the  bankers' 
had  been  overdrawn  for  some  months  before  this  transaction  took  place. 
Lemon  then  left  the  sheep  in  Miller's  possession.  Page,  after  keeping 
the  cheek  for  two  days,  presented  it  at  the  banker's,  and  payment  was 
refused.  On  the  very  day  the  sheep  were  obtained  from  Lemon, 
Elizabeth  Carver,  who  was  sister-in-law  to  Miller,  went  with  him  to  the 
office  of  an  attorney  at  Colchester,  who  was  an  entire  stranger  to  them, 
and  gave  him  instructions  to  prepare  a  warrant  of  attorney,  which  was 
clone  accordingly  ;  and,  upon  that,  judgment  was  entered  up  and  execu- 
tion issued  against  Miller,  under  which  the  sheep  in  question  were  taken. 
Miller  absconded,  and  was  not  afterwards  heard  of.  Upon  these  facts 
it  was  contended,  on  the  part  of  the  defendant,  that  no  property  in  the 
sheep  was  vested  in  Miller  by  the  sale,  he  having  obtained  possession 
of  them  by  fraud.  On  the  part  of  the  plaintiff  it  was  contended,  that 
the  property  did  pass,  inasmuch  as  there  was  no  false  representation 
made  to  induce  Page  to  part  with  the  possession  of  the  sheep  ;  and  the 
case  of  Rex  v.  Lara,  6  T.  R.  565,  was  cited.  The  Lord  Chief  Justice, 
upon  the  authority  of  that  ease,  was  of  opinion,  that  the  property  had 
passed  to  Miller;  and  the  plaintiff,  accordingly,  had  a  verdict  for  £78. 
A  rule  nisi  for  a  new  trial  having  been  obtained  in  last  Michaelmas 
Term,  — 

Scarlet  and  Chitty  now  showed  cause. 

Marry  at  and  Watford,  contra. 

Abbott,  C.  J.  Upon  further  consideration  we  are  all  of  opinion,  that 
there  ought  to  be  a  new  trial.  If  Miller  contracted  for  and  obtained 
possession  of  the  sheep  in  question  with  a  preconceived  design  of  not 
paying  for  them,  that  would  be  such  a  fraud  as  would  vitiate  the  sale, 
and  according  to  the  cases  which  have  been  cited,  would  prevent  the 
property  from  passing  to  him.  Whether  he  obtained  possession  of  the 
goods  with  such  a  preconceived  design,  is  a  question  of  fact  which  ought  to 
be  left  to  the  jury,  and  for  that  purpose  the  case  must  go  down  to  a  second 
trial.  At  the  former  trial,  the  cases  of  Noble  v.  Adams,  7  Taunt.  59  ; 
Rex  v.  Jackson,  3  Camp.  370  ;  and  Read  v.  Hutchinson,  3  Camp.  352, 
were  not  cited.  If  the  property  in  the  sheep  had  not  passed  to  Miller, 
it  is  clear  that  the  plaintiff  was  not  entitled  to  the  possession  of  them, 
against  the  defendants.  For  the  plaintiff  had  a  right  to  seize,  under  the 
fieri  facias,  the  property  of  Miller  only.  Unless  the  sheep,  therefore, 
had  become  the  property  of  Miller,  the  plaintiff  had  no  right  to  take 
them,  and  still  less  to  retain  possession  of  them  as  against  the  rightful 
owner.  Rule  absolute. 


438  WHITE    V.    GARDEN.  [CHAP.  IV. 


WHITE-  v.  GARDEN. 
In  the  Queen's  Bench,  May  1,  1851. 

[Reported  in  10  Common  Bench,  919.] 

Trover  for  iron.     Pleas  :  first,  not  guilty  ;  secondly,  not  possessed. 

At  the  trial,  before  Jervis,  C.  J.,  at  the  sittings  in  London,  after  the 
last  term,  the  evidence  disclosed  the  following  facts  :  — 

One  Parker,  in  August,  1850,  bought  of  the  defendants  seventy  tons 
of  iron,  paying  for  it  £83  in  cash,  and  giving  a  bill  for  the  residue, 
£113  14s.,  purporting  to  be  accepted  by  one  Thomas,  a  seedsman  at 
Rochester.  Parker  afterwards  sold  the  iron  to  the  plaintiff,  to  whom 
it  was,  by  Parker's  order,  delivered  by  the  defendants. 

On  the  1st  of  October,  Parker  made  a  further  purchase  of  fifty  tons 
of  iron  from  the  defendants,  for  which  he  gave  them  a  bill  also  purport- 
ing to  be  accepted  by  Thomas.  This  second  parcel  of  iron  was  likewise 
sold  by  Parker  to  the  plaintiff,  and  was  forwarded  to  the  plaintiffs 
wharf  on  the  4th  of  October,  by  one  Riddell,  the  defendants'  lighterman, 
pursuant  to  a  delivery  order  signed  by  Parker  on  the  3d.  The  barge 
containing  the  fifty  tons  was  left,  with  the  delivery  order,  by  Riddell, 
alongside  the  plaintiffs  wharf,  to  be  unloaded.  Subsequently,  the  de- 
fendants, having  discovered  that  the  supposed  acceptor  of  the  bills  was 
a  fictitious  person,  and  that  they  had  been  defrauded,  sent  Riddell  to 
the  plaintiffs  wharf  to  get  back  the  iron.  Riddell  accordingly  took 
away  the  lighter,  with  twent}'-nine  tons  of  the  iron  which  remained 
therein  ;  and  the  defendants  gave  the  plaintiff  notice  of  the  fraud,  and 
desired  him  not  to  part  with  any  of  the  iron  in  his  possession  purchased 
of  Parker. 

The  purchases  were  bona  fide  on  the  part  of  the  plaintiff,  and  had 
been  made  at  the  fair  market  price,  and  through  the  intervention  of  a 
broker. 

It  appeared  that  Parker  had  given  the  defendants  a  false  address ; 
but  it  did  not  appear  that  the  defendants  had  made  any  inquiry  either 
about  him  or  the  acceptor  of  the  bills,  until  after  the  iron  had  been  sent 
by  them  to  the  plaintiff's  wharf. 

On  the  part  of  the  defendants,  it  was  insisted,  that,  the  transaction 
being  a  fraud  on  the  part  of  Parker,  no  property  in  the  iron  passed  to 
him,  and  consequently  none  could  be  acquired  by  his  vendee,  though 
no  party  to  the  fraud. 

For  the  plaintiff,  it  was  submitted,  that  the  right  in  the  original  ven- 
dors to  rescind  the  sale,  was  at  an  end  when  the  goods  had  come  to  the 
hands  of  a  bona  fide  purchaser  for  value. 

The  Lord  Chief  Justice  left  four  questions  to  the  jury,  — first,  whether 
the  plaintiff  had  purchased  the  iron  from  Parker,  bona  fide;  secondly, 
whether  there  had  been  a  delivery  of  the  iron  by  the  defendants  to  the 
plaintiff  ;  thirdly,  whether  Parker  had  obtained  the  iron  animofurandi; 


SECT.  I.]  WHITE   V.    GARDEN.  439 

fourthly,  whether  he  had  obtained  it  by  fraud.  The  jury  answered  the 
lirst  two  questions  in  the  affirmative,  and  the  third  in  the  negative  ;  but, 

as  to  the  fourth,  they  said  they  could  not  agree  in  finding  fraud,  though 
they  were  all  of  opinion  that  Parker  never  intended  to  pay  for  the  iron. 

His  Lordship  thereupon  directed  a  verdict  to  be  entered  for  the  plain- 
tiff for  £75,  the  value  of  the  twenty-nine  tons  of  iron  removed  from 
alongside  the  plaintiff's  wharf,  —  leave  being  reserved  to  the  defendants 
to  move  to  enter  a  verdict  for  them,  if  the  court  should  be  of  opinion 
that  no  property  in  the  iron  passed  by  the  sale  from  Parker  to  the 
plaintiff. 

Byles,  Serjt.,  and  Hugh  Hill,  now  showed  cause. 

Humfrey  and  li'illes,  in  support  of  the  rule. 

Cresswell,  J.  I  am  of  opinion  that  this  rule  must  be  discharged. 
It  appears  that  the  plaintiff  made  a  contract  with  Parker  for  the  pur- 
chase of  fifty  tons  of  iron.  It  may  be  very  doubtful  whether  Parker 
had  the  iron  at  the  time.  But  afterwards  (or  before,  as  the  case  may 
be)  he  purchased  fifty  tons  of  iron  from  the  defendants,  giving  them  in 
payment  a  bill  purporting  to  be  accepted  by  a  supposed  seedsman  at 
Rochester.  It  turned  out  that  that  was  a  fictitious  bill;  no  such  person 
as  that  described  as  the  acceptor  being  to  be  found  at  Rochester.  The 
transaction  on  the  part  of  Parker  was  altogether  fraudulent.  Having 
thus  by  fraud  induced  the  defendants  to  trust  him,  Parker  sells  the  iron 
to  the  plaintiff,  and  gives  him  a  delivery  order,  which  is  acted  upon  by 
the  defendants,  who  send  the  iron  to  the  plaintiff's  wharf  by  their  own 
lighterman.  Having  received  the  iron  alongside  his  wharf,  the  plaintiff 
pays  Parker  for  it ;  and  the  defendants  afterwards,  having  in  the  interim 
discovered  that  they  had  been  defrauded,  seize  the  iron.  The  question 
is,  whether  the  plaintiff,  who,  it  is  admitted,  acted  bona  fide,  hx  this 
purchase  obtained  a  property  in  the  iron.  It  seems  to  me  that  the  case 
of  Parker  v.  Patrick,  5  T.  R.  175,  as  explained  in  Load  u.  Green,  15 
M.  &  W.  216,  well  warrants  us  in  discharging  this  rule.  Parke,  B., 
there  says  that  that  case  ma}'  be  supported  on  the  ground  that  the 
transaction  is  not  absolutely  void,  except  at  the  option  of  the  seller; 
that  he  may  elect  to  treat  it  as  a  contract,  and  he  must  do  the  contrary 
before  the  buyer  has  acted  as  if  it  were  such,  and  re-sold  the  goods  to 
a  third  party  ;  and  that  Wright  v.  Lawes  is  an  authority  to  the  same 
effect.  I  think  it  is.  And  I  see  no  difficulty  or  hardship  in  so  deciding. 
One  of  two  innocent  parties  must  suffer  ;  and  surely  it  is  more  just  that 
the  burthen  should  fall  on  the  defendants,  who  were  guilt}-  of  negligence 
in  parting  with  their  goods  upon  the  faith  of  a  piece  of  paper  which  a 
little  inquiry  would  have  shown  to  be  worthless,  rather  than  upon  the 
plaintiff,  who  trusted  to  the  possession  of  the  goods  themselves.  Though 
Parker  could  not  have  enforced  the  contract,  I  see  no  reason  why  the 
plaintiff  should  not.  Rule  discharged.1 

1  Williams  and  Talfocrp,  JJ.,  and  Jervis,  C.  J.,  delivered  concurring  opinions. 


440  PEASE  V.    GLOAHEC.  [CHAP.  IV. 


PEASE   v.  GLOAHEC. 
In  the  Privy  Council,  June  15,  1G,  23,  1866. 

[Reported  in  Law  Reports,  1  Privy  Council,  219.] 

In  this  appeal  the  suit  was  instituted  by  the  appellants,  the  assignees 
of  a  bill  of  lading  of  a  cargo  of  linseed  meal,  against  the  ship  tk  Marie 
Joseph,"  and  also  against  the  respondent,  the  master  and  owner  of 
that  vessel. 

Mr.  Mettish,  Q.  C,  and  Mr.  E.  C.  Clarkson,  for  the  appellants. 

Dr.  Dearie,  Q.  C,  and  Dr.  Swabey,  for  the  respondent. 

The  Lord  Chancellor  (Lord  Chelmsford).  The  question  raised 
by  the  suit  is  the  right  of  the  shippers  of  the  linseed  cake  to  stop  the 
same  in  transitu,  under  the  following  circumstances. 

In  February,  1864,  Messrs.  Maxwell  &  Dreossi,  of  Bordeaux, 
through  their  agent,  W alter  Stericker,  sold  to  Messrs.  Scarborough 
&  Tadman,  of  Hull,  sixty  tons  of  linseed  cake  at  £7  12.s.  6d.  per 
ton,  payable  by  bill  at  three  months  from  the  date  of  the  bill  of 
lading.  On  the  11th  of  February  the  goods  were  shipped  on  board 
the  "  Marie  Joseph"  at  Bordeaux,  by  Maxwell  &  Dreossi,  and  a  bill 
of  lading  for  the  same  was  signed  by  the  respondent,  the  master. 
Maxwell  &  Dreossi  indorsed  the  bill  of  lading  to  order  and  assigns, 
and  drew  a  bill  of  exchange  for  the  price  on  Messrs.  Scarborough 
&  Tadman,  and  sent  the  bill  of  lading  and  bill  of  exchange  to  their 
agent,  Stericker.  On  the  16th  of  February,  Stericker  took  the  bill  of 
lading  and  the  bill  of  exchange  to  Scarborough  &  Tadman,  when  the 
bill  was  accepted  by  Scarborough,  and  Stericker  thereupon  indorsed 
the  bill  of  lading  and  delivered  it  to  Scarborough,  together  with  a 
policy  of  insurance  which  had  been  effected  upon  the  goods.  A  con- 
versation then  ensued  between  Stericker  and  Scarborough  respecting 
the  dealings  of  Scarborough  &  Tadman  with  a  person  named  Moore, 
whose  circumstances  were  supposed  to  be  embarrassed,  and  Stericker 
asked  Scarborough  whether  he  had  any  objection  to  his  holding  the 
bill  of  lading.  Scarborough  told  Stericker  to  take  it,  and  delivered 
back  the  bill  of  lading  to  Stericker,  who  thereupon  signed  the  memo- 
randum of  the  16th  of  February,  1864. 

•  On  the  18th  of  February,  Tadman,  the  other  partner  in  the  firm  of 
Scarborough  &  Tadman,  called  upon  Stericker  and  stated  to  him  that 
his  firm  had  sold  the  linseed  cake  to  a  Mr.  Croysdale,  who  would 
accept  a  draft  against  the  bill  of  lading.  The  linseed  cake  had  not 
been  sold  to  Croysdale,  nor  to  any  other  person.  Trusting  to  this 
misrepresentation,  Stericker  returned  the  bill  of  lading  and  the  policy 
of  insurance  to  Tadman.  On  the  same  day,  after  thus  obtaining  the 
bill  of  lading,  in  consequence  of  a  message  received  from  the  appel- 
lants, Messrs.  Pease  &  Co.,  bankers  in  Hull,  to  whom  Scarborough  & 


SECT.  I.]  PEASE   V.    GLOAIIEC.  441 

Tadman  were  largely  indebted,  Tadman  went  to  the  bank,  and  Air. 
Pease  called  liis  attention  to  the  state  of  his  account  and  to  the  amount 
of  the  bills  under  discount,  and  asked  him  for  security.  Tadman 
thereupon  indorsed  the  bill  of  lading  in  the  name  of  his  firm,  and 
delivered  it,  together  with  the  policy  of  insurance,  to  Mr.  Pease,  and 
gave  Messrs.  Pease  &  Co.  an  unsigned  memorandum  authorizing  them 
to  sell  the  Unseed  cake  and  to  place  the  proceeds  to  the  credit  of 
Scarborough  &  Tadman  on  account.  Moore,  in  whose  transactions 
Scarborough  &  Tadman  were  supposed  to  be  involved,  became  bank- 
rupt on  the  4th  of  March,  and  on  the  7th  of  March  Scarborough  & 
Tadman  slopped  payment.  On  the  5th  of  March  a  telegram  was  sent 
from  Maxwell  &  Dreossi  to  Stericker,  directing  him  to  stop  the  deliv- 
ery of  the  linseed  cake  ;  and  on  the  7th  of  March  he  received  from 
Maxwell  &  Dreossi  a  bill  of  lading  indorsed  to  himself.  The  l>  Marie 
Joseph"  arrived  at  Hull  on  the  5th  of  April.  The  linseed  cake  was 
demanded  on  behalf  of  the  appellants,  upon  the  bill  of  lading  indorsed 
to  them  ;  but  Stericker  afterwards  went  on  board  and  presented  his 
bill  of  lading,  and  obtained  possession  of  the  goods  under  an  indem- 
nity from  Maxwell  &  Dreossi  to  the  respondent. 

Upon  these  facts  the  learned  judge  of  the  Court  of  Admiralty  was 
of  opinion  that,  the  bill  of  lading  having  been  obtained  from  Stericker 
by  the  false  representations  and  fraud  of  Tadman,  and  having  after- 
wards been  negotiated  without  the  consent  of  Stericker  or  of  his 
principals,  and  contrary  to  the  understanding  between  Stericker  and 
Tadman,  the  fraudulent  conduct  of  Tadman  invalidated  the  indorse- 
ment to  Tease  &  Co.,  and  he  accordingly  pronounced  against  them. 

The  question  is  one  of  nicety  and  difficulty  ;  and,  as  was  stated  by 
the  counsel  in  argument,  no  direct  authority  is  to  be  found  by  which 
it  can  be  decided  Principles,  however,  may  be  extracted  from  pre- 
vious decisions,  which  will  serve  as  guides  to  its  right  determination. 
A  bill  of  lading  for  the  delivery  of  goods  to  order  and  assigns  is  a 
negotiable  instrument,  which  by  indorsement  and  delivery  passes  the 
property  in  the  goods  to  the  indorsee,  subject  only  to  the  right  of  an 
unpaid  vendor  to  stop  them  in  transitu.  The  indorsee  may  deprive 
the  vendor  of  this  right  by  indorsing  the  bill  of  lading  for  valuable 
consideration,  although  the  goods  are  not  paid  for,  or  bills  have  been 
given  for  the  price  of  them  which  are  certain  to  be  dishonored, 
provided  the  indorsee  for  value  has  acted  bona  fide,  and  without 
notice.  Although  a  bill  of  lading  is  a  negotiable  instrument,  it  is  so 
only  as  a  symbol  of  the  goods  named  in  it;  and.  as  was  said  by 
Lord  Campbell  in  Gurney  v.  Behrend,  3  E.  &  B.  634,  "although  the 
shipper  may  have  indorsed  in  blank  a  bill  of  lading  deliverable  to 
his  assigns,  his  right  is  not  affected  by  an  appropriation  of  it  without 
his  authority  ;  and  if  it  be  stolen  from  him,  or  transferred  without  his 
authority,  a  subsequent  bona  fide  transferee  for  value  cannot  make 
title  under  it  as  against  the  shipper  of  the  goods."  This  dictum  is 
very  carefully  confined  in  its  terms  to  the  original  transfer  of  a  bill  of 


442  PEASE   V.    GLOAHEC.  [CHAP.  IV. 

huling  deliverable  to  the  assigns  of  the  shipper.  In  the  cases  which 
it  supposes,  there  could  be  no  lawful  assigns  of  the  shipper,  and  con- 
sequently the  bill  of  lading  could  have  no  existence  as  a  negotiable 
instrument.  But  in  the  present  case  the  shippers  of  the  goods,  having 
obtained  a  bill  of  lading,  indorsed  it  to  order  and  'assigns,  and  for- 
warded it  to  Stericker  for  the  express  purpose  of  its  being  indorsed 
by  him,  and  handed  over  to  Scarborough  &  Tadman.  By  the  in- 
dorsement and  delivery  to  Scarborough  &  Tadman  they  acquired  the 
complete  property  in  the  goods  and  control  over  the  bill  of  lading, 
subject  only  to  the  right  of  Maxwell  &  Dreossi  to  stop  in  transitu  as 
lono-  as  it  remained  in  their  hands.  This  is  not  denied  by  the  respond- 
ent; but  his  case  is  that  Scarborough  &  Tadman  having,  after  the 
indorsement  and  delivery  of  the  bill  of  lading,  returned  it  to  Stericker 
to  retain  as  a  security  for  the  payment  of  the  bill  of  exchange 
accepted  for  the  price  of  the  goods,  and  having  afterwards  obtained 
it  from  him  by  a  misrepresentation,  they  had  no  power  to  pass  a  title 
in  it  to  Pease  &  Co.,  at  least  without  being  subject  to  the  lieu  created 
by  the  deposit  with  Stericker,  and  consequently  that  the  right  to  stop 
in  transitu  against  Pease  &  Co.,  though  bona  fide  indorsees  for  valu- 
able consideration,  still  subsisted. 

There  can  be  no  doubt  that,  although  the  vendors  had  parted  with 
the  property  in  the  bill  of  lading,  by  the  indorsement  to  Scarborough 
&  Tadman  they  acquired  a  title  to  hold  it  by  the  terms  of  the  agree- 
ment under  which  it  was  deposited  with  Stericker.  These  terms  do 
not  include  any  stipulation  that  the  vendees  should  not  so  deal  with 
the  bill  of  lading  as  would,  in  the  event  of  their  insolvency,  defeat  the 
right  to  stop  in  transitu. 

It  is  not  even  stipulated  that  the  vendors  should  hold  the  bill  of 
lading  till  the  sub-vendees  should  give  them  a  bill  of  exchange  or 
other  security  for  payment.  The  lull  of  lading  was  not  made  subject 
to  any  new  condition  or  limitation,  but  was  merety  deposited  with  the 
vendors  till  the  arrival  of  the  ship  or  the  sale  of  the  goods. 

Scarborough  &  Tadman  had  power  to  sell,  not  by  reason  of  any 
authority  arising  out  of  the  agreement,  but  by  virtue  of  their  owner- 
ship in  the  goods.  The  power  to  sell  of  course  included  a  power  to 
pledge.  The  vendors,  by  keeping  the  bill  of  lading  in  their  hands, 
might  have  prevented  Scarborough  &  Tadman  from  dealing  with  it. 
They  chose  to  deliver  it  back  to  them,  induced  to  do  so,  indeed,  by 
the  fraudulent  representation  of  Tadman,  but  still  consenting  to  their 
possession  of  it.  The  indorsees  acquired  no  new  title  from  the  ven- 
dors by  the  fraud  which  Tadman  practised,  but  merely  obtained  their 
own  property  and  the  means  of  effectually  disposing  of  it.  The  ven- 
dors had  not,  strictly  speaking,  a  lien,  which  means  a  right  to  retain 
property  against  the  will  of  the  owner  of  it,  and  which  is  lost  when 
the  possession  is  parted  with.  They  had,  by  the  agreement  of  the 
indorsees  and  owners,  a  right  to  hold  a  bill  of  lading  as  a  security. 
As  in  the  case  of   lien,  so  in  this  case,  as  long  as  the  bill  of  lading 


SECT.  I.]  PEASE    V.    GLOAIIEC.  443 

remained  with  the  parties  who  had  fraudulently  obtained  it,  the  ven- 
dors who  had  been  cheated  out  of  the  possession  might  have  reclaimed 
and  recovered  it.  But  the  moment  it  passed  into  the  hands  of  Pease 
&  Co.,  to  whom  it  was  pledged  and  indorsed  for  valuable  considera- 
tion without  notice,  the  right  of  the  vendors  to  follow  it  was  taken 
away.  This  is  a  much  stronger  case  than  that  put  by  Abbott,  C.  J., 
in  Dyer  v.  Pearson,  3  B.  &  C.  42,  of  the  real  owner  of  goods  who 
suffers  another  to  have  possession  of  his  property,  and  of  those  docu- 
ments which  are  the  evidence  of  property,  being  bound  by  a  sale 
which  he  has  thus  enabled  the  other  person  to  make;  for  here  the 
person  entitled  to  retain  the  possession  of  the  instrument  which  repre- 
sented the  goods  against  the  real  owners,  relinquished  the  possession 
of  it  to  them,  and  enabled  them  to  deal  with  the  property  in  their  true 
characters  of  owners.  In  the  case  of  Kingsford  v.  Merry,  11  Ex.  577, 
it  was  held  that,  "  When  a  vendee  obtains  possession  of  a  chattel, 
with  the  intention,  by  the  vendor,  to  transfer  both  the  property  and 
possession,  although  the  vendee  has  committed  a  false  and  fraudulent 
misrepresentation  in  order  to  effect  the  contract  or  obtain  the  pos- 
session, the  property  vests  in  the  vendee  until  the  vendor  has  done 
some  act  to  disaffirm  the  transaction  ;  and  the  legal  consecpience  is, 
that  if  before  the  disaffirmance  the  fraudulent  vendee  has  transferred 
either  the  whole  or  a  partial  interest  in  the  chattel  to  an  innocent 
transferee,  the  title  of  such  transferee  is  good  against  the  vendor." 

Although  this  case  was  reversed  in  the  Exchequer  Chamber,  1  II.  & 
N.  ">03,  yet  it  was  upon  a  ground  which  did  not  affect  the  rule  of  law 
above  laid  down,  but  made  it  inapplicable,  because  in  the  judgment  of 
the  court  the  relation  of  vendor  and  vendee  did  not  exist  between  the 
owner  of  the  goods  and  the  fraudulent  possessor.  Here  the  posses- 
sion was  not  only  united  to  the  previous  ownership,  with  the  consent 
(however  obtained)  of  the  person  temporarily  entitled  to  it,  but 
transferred  for  the  express  purpose  of  giving  to  the  owner  absolute 
dominion  over  his  own  property. 

An  ownership  which  was  at  the  time  perfect  at  law,  though  voidable 
as  to  part,  viz.,  the  possession,  cannot  in  principle  be  treated  differ- 
ently from  an  ownership  voidable  as  to  the  whole,  but  in  the  interim 
protected  by  the  interposition  of  a  bona  fide  purchaser  for  valuable 
consideration. 

For  these  reasons  their  Lordships  will  humbly  recommend  to  Her 
Majesty  that  the  decree  appealed  from  be  reversed,  with  costs. 


41-1  BABCOCK   V.    LAW60N.  [CHAP.  IV. 


BABCOCK  v.  LAWSON. 
In  the  Queen's  Bench  Division,  June  10,  1879. 

[Reported  in  4  Queen's  Bench  Division,  394.] 

The  judgment  of  the  court  (Cockburn,  C.  J.,  and  Mellor,  J.)  was 
delivered  by 

Cockbukn,  C.  J.  This  was  an  action  for  the  wrongful  conversion  of 
a  quantity  of  flour  alleged  to  be  the  property  of  the  plaintiffs. 

The  facts  were  shortly  these  :  The  plaintiffs,  who  are  merchants  at 
Liverpool,  had  lent  to  the  firm  of  Denis  Daly  &  Sons,  also  merchants 
at  Liverpool,  their  acceptances  for  the  sum  of  £11,500  (for  which 
Denis  Daly  &  Sons  undertook  to  provide  at  or  before  maturity),  on  the 
security  of  certain  flour,  a  memorandum  as  to  such  security  being- 
given  by  Denis  Daly  &  Sons  in  these  terms:  "As  security  for  the 
due  fulfilment  on  our  part  of  this  undertaking,  we  have  warehoused 
in  your  name  sundry  lots  of  flour,  and  in  consideration  of  your  de- 
livering to  us,  or  our  order,  said  flour  as  sold,  we  further  undertake  to 
specifically  pay  you  proceeds  of  all  sales  thereof  immediately  on  their 
receipt." 

The  flour  was  accordingly  warehoused  in  the  name  of  the  plaintiffs 
in  a  room  let  to  them  for  the  purpose,  and  of  which  they  kept  the  key 
and  paid  the  rent. 

Three  of  the  acceptances  thus  given  by  the  plaintiffs,  amounting  in 
the  whole  to  £6,500  having  been  in  due  time  provided  for  by  Denis 
Daly  &  Sons,  it  was  agreed  between  them  and  the  plaintiffs  that  the  two 
remaining  bills,  for  £2,500  each,  should  be  renewed,  which  was  accord- 
ingly done,  a  memorandum  similar  to  the  former  one  being  again  given 
by  Denis  Daly  &  Sons,  whereby  they  undertook  to  provide  for  the 
acceptances  at  or  before  maturity,  with  this  addition:  "As  security 
for  the  due  fulfilment  on  our  part  of  this  undertaking,  you  hold  two  lots 
of  Baltic  whites  Hour,  warehoused  in  December  and  January  last."  The 
Baltic  whites  flour  thus  mentioned  consisted  of  1,500  sacks,  being  the 
flour  originally  pledged  to  the  plaintiffs. 

In  the  interval  between  the  giving  of  these  last-mentioned  accept- 
ances and  the  time  of  their  becoming  due,  one  of  the  firm  of  Denis 
Daly  &  Sons,  on  the  13th  of  May,  1878.  applied  to  the  defendants  to 
advance  them  a  sum  of  £2,500  on  the  security  of  the  1,500  sacks  of 
flour  deposited,  as  has  been  stated,  with  the  plaintiffs,  but  without  in 
any  way  communicating  to  them  the  fact  of  the  flour  having  been  so 
deposited.  The  defendants,  in  entire  ignorance  of  this  fact,  and  believ- 
ing tin;  flour  to  be  the  property  of  Denis  Dal}'  &  Sons,  agreed  to 
advance  the  €2.500  on  the  security  of  the  Hour,  but  on  the  terms  that 
they  were  to  have  absolute  possession  of  the  Hour,  and  to  warehouse 
it  in  Iheir  own  name,  and  to  have  power  to  sell  it. 


SECT.  I.]  BABCOCK   V.   LAWSON.  -i-i-j 

For  the  fraudulent  purpose  of  obtaining  possession  of  the  flour,  so 
as  to  be  able  to  give  possession  of  it  to  the  defendants,  Arthur  Duly, 
one  of  the  firm  of  Denis  Daly  <fc  Sons,  brought  to  the  plaintiffs,  bul 
unknown  to  the  defendants,  a  memorandum  in  these  terms:  u  14th 
.May,  1878.  •  We  have  sold  Messrs.  R.  <.v  J.  Lawson  1,500  sacks  of 
Baltic  whites,  payment  as  follows;  £1,000  upon  delivery,  £1,000  in  14 
days,  £1,000  in  a  month,  which  amounts  we  will  hand  you  as  received. 
D.*  Daly  &  Sons." 

The  plaintiffs  by  the  fraudulent  misrepresentation  that  Denis  Daly  & 
Sons  had  found  a  purchaser  for  the  Hour,  and  would  hand  over  to  them 
the  amount  to  be  received  as  the  price,  were  induced  to  part  with  the 
possession  of  the  flour,  and  for  that  purpose  gave,  as  requested,  on  the 
14lh  of  May,  a  delivery  order  to  Denis  Daly  &  Sons  ;  and  subsequently 
addressed  a  written  direction  to  the  landlord  of  the  warehouse,  which 
they  delivered  to  Arthur  Daly,  to  transfer  the  room  in  which  the  flour 
was  deposited  to  Lawson  &  Co.,  which  was  accordingly  done. 

The  defendants  on  the  same  day  that  the  delivery  ordei  was  given 
b}*  the  plaintiffs  to  Denis  Daly  &  Sons,  namely,  the  14th  of  May. 
advanced  to  Denis  Daly  &  Sons  the  sum  of  £1,725,  and  on  the  next  day 
the  further  sum  of  £775  in  cash. 

It  is  stated  in  the  case  that  the  fraudulent  memorandum  of  the  sale 
to  the  defendants,  by  which  the  plaintiffs  were  induced  to  give  the 
delivery  order  for  the  flour,  was  brought  to  them  b}'  Arthur  Daly  after 
banking  hours  on  the  14th,  from  which  it  may  be  inferred  that  the 
£1,725  advanced  by  the  defendants  to  Denis  Daly  &  Sons  on  that  day. 
was  advanced  before  the  possession  of  the  flour  had  been  given  up  to 
the  latter  by  the  plaintiffs.  Possession  of  the  flour  having  been  trans- 
ferred to  defendants,  they,  between  the  18th  of  Mav  and  the  1st  of 
dune,  by  virtue  of  the  right  to  sell  vested  in  them  by  the  agreement 
with  Denis  Daly  &  Sons,  sold  the  flour  in  the  Liverpool  market  for 
sums  amounting  in  the  whole  to  £2,647  10s.  3d.,  and  the  flour  was 
delivered  to  the  respective  purchasers 

Of  the  £2,500  thus  advanced  by  the  defendants  to  Denis  Daly  & 
Sons,  £500  was  paid  by  the  latter  to  the  plaintiffs,  as  part  of  the  price 
received  on  the  sale  of  the  flour.  But  the  plaintiffs  have  received  no 
further  payment,  and  Denis  Daly  &  Sons  have  become  bankrupts. 

We  have  in  this  case  to  discharge  the  unpleasant  duty  of  deciding 
on  which  of  two  innocent  parties  the  loss,  occasioned  to  one  or  other 
of  them  by  the  fraud  of  a  third  shall  fall.  In  discharging  such  a  duty 
a  court,  to  use  the  words  of  Lord  Cairns  in  Cundy  v.  Lindsay.  3  App. 
Cas.  463,  ct  can  do  no  more  than  apply  rigorously  the  settled  and  well- 
known  rules  of  the  law."  Unfortunately,  however,  some  difficulty  pre- 
sents itself  in  the  present  case  in  applying  the  law.  For  the  case  is, 
>>>  far  as  we  are  aware,  sui  generis,  the  contract  out  of  which  the  claim 
of  the  plaintiffs  arises  being  of  an  altogether  exceptional  character. 
The  contract  is  not  one  in  which  goods  are  deposited  upon  the  ordinary 
terms  incidental  to  a  bailment  of  pledge,  namely,  that  the  thing  pledged 


44 6  BABCOCK    V.    LAWSON.  [CHAP.  IV. 

shall  remain  in  the  possession  of  the  pledgee  until  the  engagement  of 
the  pledgor,  which  it  was  given  to  insure,  has  been  fulfilled. 

Here  the  pledgors,  when  they  find  a  purchaser,  are  to  have  posses- 
sion of  the  thing  pledged,  in  order  to  sell  it,  not  in  the  name,  or  even 
on  behalf  of  the  pledgees,  but  as  their  own,  subject  only  to  the  condi- 
tion of  handing  over  the  proceeds  in  liquidation  of  the  debt. 

It  may  be  doubted  whether,  under  such  a  contract,  any  special  prop- 
erty, however  limited,  vested  in  the  pledgees,  or  whether  their  right 
was  not  limited  to  the  possession  and  custody  of  the  goods,  so  as  to 
secure  to  them  the  knowledge  of  any  sale  which  the  owners  might  be 
able  to  make,  and  so  to  afford  them  the  opportunity  of  insisting  on  the 
price  being  handed  over  to  them  as  soon  as  paid. 

Assuming,  however,  that  under  the  contract  with  Denis  Daly  &  Sons 
the  plaintiffs  acquired,  as  pledgees,  a  special  property  in  the  flour  depos- 
ited in  their  name,  it  was  subject  to  the  right  of  the  pledgors  to  have  the 
flour  given  up  to  them  on  their  finding  a  purchaser  for  the  purpose  of 
the  sale  by  them  as  owners,  without  any  intervention  on  the  part  of  the 
pledgees.'  If,  having  obtained  the  goods  for  the  purpose  of  selling 
them,  and  having  sold  them,  the  pledgors  had  kept  the  price  instead  of 
handing  it  over  to  the  pledgees,  the  latter  could  not  have  disputed  the 
title  of  the  buyer,  and  would  have  had  no  remedy  except  by  action 
against  the  pledgors  for  breach  of  contract. 

In  compliance  with  the  agreement,  the  flour  was  delivered  by  the 
plaintiffs  to  Denis  Daly  &  Sons,  the  pledgors,  with  the  full  intention 
that  they  should  sell  it  as  their  own  and  make  a  good  title  to  it  to  then- 
vendees. 

It  is  true  that  the  possession  of  the  goods  was  obtained  by  the  fraud 
of  the  pledgors,  but  this  appears  to  us  to  make  no  difference  in  the 
result.  The  flour  having  been  given  up  by  the  plaintiffs  to  Denis  Daly 
&  Sons,  conformably  to  the  contract,  to  sell  as  their  own,  the  special 
property  vested  in  the  plaintiffs  as  pledgees,  whatever  it  may  have 
been,  was  intentionally  surrendered  ;  and  the  possession  having  been 
parted  with,  the  contract  of  pledge  was,  at  all  events  for  the  time 
being,  at  an  end.  The  abandonment  of  the  property  in,  and  the  sur- 
render of,  the  thing  pledged  might,  as  between  the  pledgees  and 
pledgors,  have  been  revoked  as  having  been  obtained  by  fraud,  so  long 
as  the  goods  remained  in  the  hands  of  the  pledgors.  But  when,  prior 
to  any  such  revocation,  the  property  in  the  goods  had  been  transferred 
by  the  owners  for  good  consideration  to  a  bona  fide  transferee,  the 
hitter  acquired,  as  it  appears  to  us,  an  indefeasible  title.  The  analogy 
to  a  case  of  sale  where  the  vendor  is  induced  to  part  with  his  property 
by  fraud  appears  to  us  complete;  and  the  principle  laid  down  by  the 
Court  of  Common  Pleas  in  White  v.  Garden,  10  C.  B.  919,  and  by  the 
House  of  Lords  in  Cundy  r.  Lindsay,  3  App.  Cas.  459,  and  acted  upon 
by  this  court  in  Moyce  v.  Newington,  4  Q.  B.  D.  32,  is,  we  think, 
applicable  to  the  case  before  us;  and  we  are  therefore  of  opinion  that 
I'm'  defendants  acquired  a  good  title  to  the  flour  by  their  contract  with 
Denis  Dnlv  &  Sons. 


SECT.  I.]  BABCOCK    V.   LAWSON.  447 

Our  view  of  the  case  being  founded  on  the  assumption  that  the 
property  in  the  goods  became  by  the  act  of  the  pledgees  revested  in 
the  pledgors,  it  makes  no  difference  that  the  goods,  having  been  parted 
with  by  the  plaintiffs  with  a  view  to  their  being  sold,  were,  instead  of 
being  sold,  pledged.  The  propert}1  having  by  the  act  of  the  pledgees 
become  revested  in  the  pledgors,  the  hitter  were  as  competent  to  dispose 
of  the  goods  by  way  of  pledge  as  by  that  of  sale. 

Nor  in  this  view  of  the  case  is  it  in  any  way  material  that  the  larger 
portion  of  the  money  advanced  by  the  defendants  to  Denis  Daly  & 
Sous  was  paid  (if  we  are  to  take  the  fact  to  have  been  so)  before  the 
possession  of  the  flour  was  given  up  by  the  plaintiffs.  The  property  in 
the  Hour  was  made  over  to  the  defendants,  and  the  possession  of  it 
given  up  to  them,  by  Denis  Daly  &  Sons  for  good  consideration  when 
the  full  property  in  it  was,  as  we  think,  in  the  latter,  and  the  transfer 
took  place  by  virtue  of  a  contract  whereby  the  money  was  to  be  ad- 
vanced on  the  pledge  of  the  goods.  That  the  money  was  paid  down 
before  the  goods  were  delivered,  provided  the  property  in  the  goods 
was  in  Denis  Daly  &  Sons  when,  in  fulfilment  of  the  contract,  they 
transferred  the  property  in,  and  gave  possession  of,  the  flour,  can 
make  no  difference. 

But  there  is  a  further  ground  on  which  we  are  of  opinion  that  the 
defendants  are  entitled  to  our  judgment.  We  are  prepared  to  hold,  as 
we  intimated  in  Moyce  v.  Newington,  4  Q.  B.  D.  35,  that  where  one 
of  two  innocent  parties  must  suffer  from  the  fraud  of  a  third,  the  loss 
should  fall  on  the  one  who  enabled  the  third  party  to  commit  the  fraud. 
It  has  been  so  held  b}-  the  Supreme  Court  of  Judicature  of  the  State  of 
New  York  in  a  case  of  Root  v.  French,  13  Wendell,  570.  In  Vickers 
v.  Hertz,  Law  Rep.  2  H.  L.,  Sc.  115,  Lord  Chancellor  Hatherley  says: 
"  If  one  person  arms  another  with  a  symbol  of  property  he  should  be 
the  sufferer,  and  not  the  person  who  gives  credit  to  the  operation  and 
is  misled  by  it."  It  is  on  this  principle  that  the  legislation  with  refer- 
ence to  fraudulent  sales  made  by  factors  or  agents  intrusted  with  the 
possession  of  goods  or  of  the  documents  of  title  to  goods  has  been  based. 
It  was  on  this  ground  that  the  Court  of  Session  in  Pochin  y.  Robinows, 
3d  Series,  vol.  vii.  p.  622,  and  in  Vickers  v.  Hertz,  independently  of 
the  Factors  Acts,  and  proceeding  on  general  principles,  decided  in 
favor  of  an  innocent  purchaser.  And  though  in  Vickers  v.  Hertz  in 
tlu>  House  of  Lords  the  case  was  decided  in  favor  of  the  defendant,  as 
coming  under  the  Factors  Acts,  Lord  Colonsay  expressly  says  that  the 
judgment  appealed  from  was  well  founded  independently  of  those  Acts. 

Now,  in  the  case  before  us  Denis  Daly  &  Sons  were  allowed  by  the 
plaintiffs  to  appear  as  the  ostensible  owners  of  the  flour,  and  to  exercise 
uncontrolled  dominion  over  it,  without  the  plaintiffs,  by  intervening 
themselves  in  the  transaction,  as  they  might  have  done,  securing  them- 
selves against  any  fraudulent  conduct  on  the  part  of  Denis  Daly  &  Sons. 
It  would,  therefore,  be  in  the  highest  degree  unjust  and  inequitable  that 
the  defendants,  Lawson  &  Co.,  who  have  innocently  advanced  money 


4-48  LEASE   V.    SCOTT.  [CHAP.  IV. 

on  the  goods  in  the  ordinary  course  of  commercial  dealing,  should  be 
sufferers  through  the  improvident  contract  of  the  plaintiffs  with  Denis 
Daly  &  Sons,  or  want  of  proper  caution  on  their  part. 

We,  therefore,  on  both  grounds,  give  judgment  for  the  defendants. 

Judgment  for  the  defendants.1 


LEASK   y.    SCOTT   BROTHERS. 
In  the  Queen's  Bench  Division,  Court  of  Appeal,  May  5,  1877. 

[Reported  in  2  Queen's  Bench  Division,  37G.] 

Interpleader  action  to  try  the  right  of  the  plaintiff  as  against  the 
defendants  to  100  bags  of  nuts. 

At  the  trial  before  Field,  J.,  at  the  London  Michaelmas  sittings,  1876, 
the  following  facts  appeared  in  evidence  :  On  the  22d  of  December, 
1875,  Geen,  Stutchbury,  &  Co.,  fruit  merchants  in  London,  agreed  to 
purchase  of  the  defendants  a  shipment  of  nuts  from  Naples  to  London 
by  the  "  Trinidad,"  "  reimbursement  as  usual,"  which  was  by  acceptance 
at  three  months  on  delivery  of  the  shipping  documents.  On  Saturday, 
the  1st  of  January,  1876,  being  prompt  da}-,  Geen  &  Co.,  being  already 
indebted  to  the  plaintiff,  their  fruit  broker,  in  between  £10,000  and 
£11,000,  Mr.  Geen  applied  to  him  for  a  further  advance  of  £2,000.  The 
plaintiff  said,  "You  may  have  it,  but  you  must  first  cover  up  your  ac- 
count." Geen  said  that  he  would  give  him  cover,  and  the  plaintiff's 
cashier  at  once  handed  to  Geen  a  check  for  £2,000.  On  Tuesday,  the 
4th  of  January,  the  bill  of  lading,  dated  the  29th  of  December,  1875, 
indorsed  by  defendants  in  blank  (the  nuts  being  made  deliverable  to 
their  order),  was  handed  by  their  agent  to  Geen  &  Co.,  and  they  at 
once  accepted  a  draft  for  the  price,  £224  16s.  2d  ;  and  on  the  next  day 
Geen  &  Co.  handed  to  the  plaintiff  the  bill  of  lading  and  other  similar 
documents  to  the  value  of  about  £5,000,  in  performance  of  their  promise 
on  the  Saturday  to  give  the  plaintiff  cover.  On  Saturday,  the  8th  of 
January,  Geen  &  Co.  stopped  payment.  The  "Trinidad"  arrived  off 
Liverpool  on  the  3d  of  February,  and  the  defendants  sought  to  stop  the 
nuts  in  transitu,  the  plaintiff  claiming  them  under  the  bill  of  lading. 
The  nuts  were  landed,  warehoused,  and  sold,  the  price  being  held  to 
abide  the  result  of  this  interpleader  action. 

In  answer  to  questions  by  the  judge,  the  jury  found  that  the  plaintiff 
received  the  bill  of  lading  honestly  and  fairly  ;  that  valuable  consider- 
ation was  given  on  the  understanding  of  security  being  given  ;  and  that 
the  security  given  was  to  secure  the  £2,000,  and  also  the  old  account. 

The  learned  judge,  after  argument,  directed  judgment  to  be  entered 
for  the  defendants,  being  of  opinion  that  the  facts  of  the  case  brought 

1  Affirmed  by  the  Court  of  Appeal     5  Q.  B.  D.  284. 


SECT.  I.]  LEASE  V.   SCOTT.  449 

it  within  the  principle  of  Rodger  v.  Comptoir  d'Escompte  de  Paris,  Law 
Rep.  2  P.  C.  3'J.'5,  affirmed  by  the  decision  of  Chartered  Bank  of  India, 
&c.,  v.  Henderson,  Law  Rep.  5  P.  C.  501. 

Watkin  Williams.,  Q.  C,  moved  to  enter  judgment  for  the  plaintiff. 

R.  E.  Webster  (with  him  Murphy,  Q.  C),  for  the  defendants. 

( '///-.  ado.  vult. 

The  judgment  of  the  court  (Lord  Coleridge,  C.  J.,  and  Bramwell  and 
Brett,  L.  JJ.),  was  delivered  by 

Bramwell,  L.  J.  The  defendants  have  stopped  in  transitu  the 
goods,  the  subject  of  this  proceeding.  They  have  done  so  effectuall}' 
and  rightfully,  unless  the  plaintiff  has  obtained  a  title  to  them  which 
cannot  be  defeated  by  such  stoppage.  Whether  he  has  is  the  question. 
The  facts  are  few,  and  as  follows:  Geen  &  Co.,  the  consignees  of  the 
goods,  were  indebted  to  the  plaintiff.  On  Saturday,  the  1st  of  January, 
they  applied  to  the  plaintiff  for  a  further  advance,  which  he  agreed  to 
make  on  being  first  covered.  Geen  &  Co.  promised  to  give  him  cover  (not 
Darning  anything  in  particular),  and  the  plaintiff  advanced  them  a  further 
sum  of  £2,000,  the  plaintiff  being  content  with  their  promise.  On  the 
following  Tuesday  the  bill  of  lading  of  the  goods  in  question,  consigned 
by  the  defendants  to  Geen  &  Co.,  came  to  the  possession  of  the  latter, 
who,  on  the  following  day,  Wednesday,  deposited  it  with  the  plaintiff 
in  fulfilment  of  their  promise  to  cover  him.  No  question  turns  on  the 
quantity  of  property  so  handed  over,  nor  in  any  way  as  to  the  validity 
of  the  transfer;  for  the  jury  on  this  have  found  entirely  in  favor  of  the 
plaintiff. 

This  being  so,  the  plaintiff  contended  that  he  was  a  bona  fide  holder 
of  the  bill  of  lading  for  valuable  consideration  by  transfer  from  the 
former  lawful  holder  and  proprietor  thereof  and  of  the  goods  mentioned 
in  it.  This  was  not  denied  by  the  defendants.  Their  contention  was 
that,  though  the  plaintiff  was  such  holder  effectually  as  against  Geen  & 
Co.,  and  their  assignees,  if  they  had  become  bankrupt,  or  any  one 
claiming  through  or  against  them,  except  the  defendants,  yet  they,  the 
defendants,  had  not  lost  their  right  to  stop  in  transitu.  That  the  right 
of  stoppage  in  transitu  is  available  and  effectual  against  every  one, 
except  the  assignee  of  a  bill  of  lading  for  valuable  consideration,  and 
unless  that  valuable  consideration  had  been  got  by  means  of  the  bill  of 
lading  ;  that,  if  the  consideration  were  past,  it  was  not  such  a  consider- 
ation, and  the  title  gained  by  it  was  not  such  a  title  as  would  defeat  the 
equitable  right  of  stoppage  in  transitu.  That  such  right  was  only  de- 
feated where  there  was  a  transfer  for  present  consideration.  That  it 
was  so  in  such  case,  because  the  consignor,  or  stopper  in  transitu,  had 
by  parting  with  the  bill  of  lading  enabled  the  consignee  to  get  valuable 
consideration  by  means  of  it ;  and  so  had  indirectly  caused  the  giving  of 
the  consideration  by  the  assignee  of  the  bill  of  lading  ;  but  that  that  was 
not  so  where  the  consideration  was  past.  There  the  giver  of  the  valu- 
able consideration  was  not  prejudiced  by  means  of  the  bill  of  lading, 

29 


450  LEASK    V.   SCOTT.  [CHAP.  IV. 

and  consequently  there  was  no  reason  why  the  equitable  right  of  stop- 
page in  transitu  should  be  lost. 

Mr.  Webster,  for  the  defendants,  at  first  put  it  that  the  equitable 
right  of  the  consignor  should  prevail  against  the  equitable  right  of  the 
transferee  of  the  bill  of  lading.  But,  on  it  being  pointed  out  to  him 
that  the  title  of  the  transferee  was  legal,  he  altered  his  argument  to 
what  is  above  mentioned,  viz.,  that  the  equitable  right  of  stoppage  pre- 
vailed against  a  legal  title  acquired  by  receiving  the  bill  of  lading  for  a 
consideration,  no  part  of  which  was  caused  to  be  given  by  the  bill  of 
lading.     The  distinction  of  the  two  propositions  is  material. 

In  support  of  his  argument  Mr.  Webster  cited  Rodger  v.  Comptoir 
d'Escompte  de  Paris,  Law  Rep.  2  P.  C.  393,  before  the  Judicial  Com- 
mittee of  the  Priv\'  Council.  We  think  that  that  case  justifies  his  argu- 
ment, and  is  in  point.  There  may  be  differences  in  the  facts  of  the  two 
cases,  but  the  ratio  decidendi  was  clearly  that  advanced  for  the  defend- 
ants in  the  present  case.  We  are  not  bound  by  its  authority,  but  we 
need  hardly  say  that  we  should  treat  any  decision  of  that  tribunal  with 
the  greatest  respect,  and  rejoice  if  we  could  agree  with  it.  But  we  can- 
not. There  is  not  a  trace  of  such  distinction  between  cases  of  past  and 
present  consideration  to  be  found  in  the  books.  It  is  true  there  is  no 
decision  the  other  way  ;  but  wdierever  the  rule  is  laid  down  it  is  laid 
down  without  qualification,  viz.,  that  a  transfer  of  a  bill  of  lading  for 
valuable  consideration  to  a  bona  fide  transferee  defeats  the  right  o 
stoppage  in  transitu.  It  is  true,  no  doubt,  that  opinions  must  be  taken 
secundum  subjectam  materiam,  but  it  is  strange  that  no  judge,  no 
counsel,  no  writer  ever  guarded  himself  against  appearing  to  lay  down 
the  rule  too  widely  by  mentioning  this  qualification,  if  he  thought  it  ex- 
isted. We  cannot  help  saying  then  that  not  only  is  the  case  a  novelty, 
but  it  is  a  novelty  opposed  to  what  may  be  called  the  silent  authority 
of  all  the  previous  judges  and  writers  who  have  dealt  with  the  subject. 
More  than  that,  in  Vertue  v.  Jewell,  4  Camp.  31,  where  Lord  Ellenbor- 
ough  goes  out  of  his  way  to  say  that  the  plaintiff  was  not  a  transferee 
for  valuable  consideration  so  as  to  defeat  the  right  of  stoppage,  he  puts 
it,  not  on  the  ground  that  the  consideration  was  past,  as  was  the  fact, 
but  on  the  ground  that  the  transferee  had  notice  of  the  transferor's  in- 
solvency. Further,  it  is  noticeable  that  this  point  does  not  seem  to 
have  been  mentioned  in  Rodger  v.  Comptoir  d'Escompte  de  Paris,  supra, 
till  the  reply.  The  cases  cited  in  the  argument  at  the  opening  of  coun- 
sel in  that  case  seem  directed  to  the  question  of  bona  fides.  Still  fur- 
ther, with  all  respect  be  it  said,  the  reason  given  in  the  judgment  is  not 
satisfactory.  It  is  said  (Law  Rep.  2  P.  C.  405),  "The  general  rule,  so 
clearly  stated  and  explained  by  Lord  St.  Leonards  in  the  case  of  Man 
gles  v.  Dixon,  3  H.  L.  C.  702,  is,  that  the  assignee  of  any  security  stands 
in  the  same  position  as  the  assignor  as  to  the  equities  arising  upon  it." 
No  doubt.  But  that  rule  does  not  apply  here.  Lord  St.  Leonards  said 
that  in  reference  to  a  case  where  the  title  was  to  a  chose  in  action,  an 
equitable  title  only,  or,  dropping  such  an  expression,  a  right  against  a 


SECT.  I.]  LEASK  V.    SCOTT.  451 

person  liable  on  a  contract;  and  he  held  that  the  assignee  of  that  right 
was  in  the  same  situation  as  the  assignor.  Here  the  plaintiff's  title  is, 
as  it  was  in  Rodger  v.  Comptoir  d'Eseompte  de  Paris,  supra,  a  title  to 
property  in  ownership,  and,  to  use  the  old  expression,  a  legal  light. 

ll\  besides  dealing  with  the  authorities,  we  look  at  the  reason  of  the 
thing,  we  are  led,  with  deference,  to  the  same  conclusion.     All  the  argu- 
ments used  by  Mr.  Justice  Buller,  in  Lickbarrow  v.  Mason,  2  T.  R.  63 
p.  75,  apply  to  such  a  ease  as  the  one  before  us.     Practically  such  a 
past  consideration  as  is  now  under  discussion  has  always  a  present  op- 
eration,    it  stays  the  hand  of  the  creditor.     If  the  plaintiff  had  agreed 
on  the  day  the  bill  of  lading  was  handed  to  him  to  give  a  week's  time, 
there  would  have  been  a  present  consideration.     Is  it  necessary  there 
should  be  a  formal  agreement  in  lieu  of  that  which,  whether  it  would 
support  legal  proceedings,  as  was  contended  by  the  plaintiff,  or  not, 
was,  no  doubt,  such  an  understanding  that,  if  the  plaintiff  had  taken 
proceedings  against  Geen  &  Co.  the  day  after  he  had  received  the  se- 
curity, he  would  have  committed  a  breach  of  faith?     If  in  this  case  the 
plaintiff  had  bought  the  goods  out  and  out  and  been  paid  part  of  his 
debt  with  the  price,  the  consideration  would  have  sufficed,  if  the  trans- 
action was  not  colorable.     If  the  plaintiff  had  said,  "I  cannot  take  this 
bill  of  lading  safely  as  the  consideration  would  be  past,  do  it  with  the 
broker  next  door  and  give  me  his  check,"  that  would  have  been  valid. 
Is  it  desirable  to  introduce  such  niceties  into  commercial  law?     More- 
over, there  really  always  is  a  present  consideration.     It  is  not  necessary 
to  consider  whether  specific  performance  would  be  decreed  as  to  this 
document  which  was  not  specified  to  the  plaintiff;  but  the  case  of  Alli- 
ance Bank  v.  Broom,  2  Dr.  &  Sm.  289  ;  34  L.  J.  (Ch.)  256,  shows  that 
a  general  performance  would  be  decreed  ;  and  certainly  an  action  would 
lie  for  not  covering.     Therefore  the  assignor,  for  such  consideration  as 
this,  always  gets  the  benefit  of  performing  his  contract,  and  so  saving 
himself  from  a  cause  of  action.     If  Geen  &  Co.  in  this  particular  case, 
had  said  that  this  bill  of  lading  was  coming  forward,  and  thev  would 
hand  it  to  the  plaintiff,  then  value  would  have  been  obtained  by  means 
of  the  bill  of  lading;  so  if  they  had  said  generally  that  they  had  secur- 
ities coming  forward  and  would  deposit  them  ;  and  what  is  the  differ- 
ence between  a  promise  with  such  a  statement  and  a  promise  without 
it?     In  the  analogous  cases  of  goods  obtained  under  a  fraudulent  con- 
tract, where  the  vendor  loses  his  title  if  there  is  a  transfer  for  value, 
there  is  no  authority  to  show  that  a  past  value  is  not  sufficient. 

On  these  grounds  we  are  unable  to  concur  in  the  opinion  of  the  Ju- 
dicial Committee  in  Rodger  v.  Comptoir  d'Eseompte  de  Paris,  supra, 
or  with  the  argument  for  the  defendants.  As  to  the  judgment  of  Mr. 
Justice  Field,  it  is  enough  to  say  that  it  proceeded  wholly  on  that  case 
and  in  deference  to  it. 

We  are  of  opinion  that  judgment  should  be  reversed,  and  entered  for 
the  plaintiff. 

Judgment  reversed,  ami  entere  I  for  the  plaintiff. 


452  SALTUS   V.    EVERETT.  [CHAP.  IV. 


SALTUS    &   SALTUS  v.   EVERETT. 
New  York  Court  for  the  Correction  of  Errors,  1838. 

[Reported  in  20  Wendell,  267.] 
Error  from    the   Supreme  Court.     Everett   brought   an   action   of 
trover  in  the  Superior  Court  of  Law  of  the  city  of  New  York  against 
Messrs.   Saltus,  for  a  quantity  of  lead.     In  August,  1825,  Bridge  & 
Vose,  merchants  at  New  Orleans,  shipped  179  pigs  of  lead  on  board 
the  brio-  "  Dove,"  of  which  William  Collins  was  master,  consigned  to 
Messrs.  Tufts,  Eveleth,  &  Burrell,  of  New  York,  on  account  and  risk  of 
Otis  Everett,  the  plaintiff,  to  whom  they  referred  for  instructions.    The 
"  Dove  "  put  into  Norfolk,  in  distress,  and  part  of  the  lead  was  sold  to 
pay  expenses,  and  the  residue  was  transferred  in  December,  1825,  by 
an  agent  of  Captain  Collins,  to  the  schooner  "  Dusty  Miller,"  Captain 
Johnson,  who  signed  a  bill  of  lading,  acknowledging  the  lead  to  have 
been  shipped  by  F.  M.,  agent  for  William  Collins,  and  promising  to 
deliver  the  same  in  New  York,  to  order,  on  payment  of  freight.     The 
"  Dusty  Miller  "  met  with  a  disaster  on  her  voyage  to  New  York,  and  on 
her  arrival  there,  the  lead,  by  the  order  of  Captain  Collins,  was  delivered 
to  the  firm  of  Coffin  &  Cartwright,  who  paid  the  freight,  and  $72.87, 
the  average  contribution  charged  upon  the  lead,  for  the  loss  occasioned 
by  the  disaster  to  the  "  Dusty  Miller."    On  the  9th  March,  182G,  Coffin 
&  Cartwright  sold  the  lead  to  the  Messrs.  Saltus,  the  defendants,  for 
8512.74,   and  received  payment.     The  freight  of  the  lead  from  New 
Orleans  to  New  York  amounted  to  $14.72.     Everett  brought  an  action 
against  Coffin  &  Cartwright  to  recover  the  value  of  the  lead,  but  was 
non-suited,  in  failing  to  prove  that  before  suit  brought  he  offered  to  pay 
the  freight,   average,   and  charges   to   which   the  lead  was  liable,   and 
which  had  been   advanced  by  Messrs.  Coffin  &  Cartwright,   and   this 
court,  on  application,  refused  to  set  aside  the  non-suit.     See  6  Wendell, 
603.     In  October,  1831,  the  plaintiff  demanded  the  lead  of  the  Messrs. 
Saltus,  and  offered  to  pay  any  lawful  demands  they  had  on  the  same  ; 
to  which  they  answered,  that  they  would  have  no  further  communica- 
tion on  the  subject.     It  was  proved  that  in  March,  1826,  one  of  the 
linn  of  Tufts,  Eveleth,  &  Burrell  demanded  of  the  Messrs.  Saltus  the 
had,   or  its  value,   and   received   for  answer,   that   they   had    bought 
the  lead,  and  paid  for  it,  and  would  not  do  anything  about  it.     Upon 
this  evidence  the  plaintiff  was  again  non-suited.     Whereupon  he  sued 
out  a  writ  of  error,  removing  the  record  into  the  Supreme  Court,  where 
the  judgment  of  the  Superior  Court  was  reversed.     See  opinion  deliv- 
ered in    the   Supreme  Court,   15  Wendell,  475  et  seq.      The   defend- 
ants then   removed  the  record   into  this  court,   where  the  cause  was 
argued  by 

T.  T.  Payne,  for  the  plaintiffs  in  error. 

T.  Sedgwick,  Jr..  and  A'.  P.  Staples,  for  the  defendant  in  error. 


SECT.  I.]  SALTUS   V.    EVERETT.  453 

Senator  Verplanck.1  The  universal  and  fundamental  principle  of 
our  law  of  personal  property  is,  that  no  man  can  be  divested  of  bis 
property  without  his  own  consent ;  and,  consequently,  thai  even  the 
honest  purchaser  under  a  defective  title  cannot  hold  against  the  true 
proprietor.  That  "  no  one  can  transfer  to  another  a  better  title  than 
lie  has  himself,"  is  a  maxim,  says  Chancellor  Kent,  "  alike  of  the  com- 
mon and  the  civil  law,  and  a  sale,  ex  vi  termini,  imports  nothing  more 
than  that  the  bona  fide  purchaser  succeeds  to  the  rights  of  the  vendor." 
The  only  exception  to  this  rule  in  the  ancient  English  jurisprudence 
was  that  of  sales  in  markets  overt,  a  custom  which  has  not  been  intro- 
duced among  us.  "  It  has  been  frequently  held  in  this  country  that 
the  English  law  of  markets  overt  had  not  been  adopted,  and  conse- 
quently, as  a  general  rule,  the  title  of  the  true  owner  cannot  be  lost 
without  his  consent."     2  Kent's  Comm.  324,  and  cases  there  cited. 

I  have  stated  the  general  and  governing  law ;  let  us  now  see  what 
are  precisely  the  exceptions  to  it. 

The  first  and  most  remarkable  class  of  these  exceptions  relates  to 
money,  cash,  bank  bills,  checks  and  notes  payable  to  the  bearer  or  trans- 
ferable by  delivery,  and  iu  short,  whatever  comes  under  the  general 
notion  of  currency. 

Setting  wholly  aside  this  part  of  the  law  as  to  cash,  bank  notes> 
and  bills  to  bearer,  as  founded  on  the  peculiar  necessities  of  currency 
and  trade,  and  regulated  by  decisions  and  usages  peculiar  to  itself,  what 
rules  do  we  find  to  obtain  in  other  instances  of  conflict  between  the 
rights  of  original  owners  and  those  of  fair  purchasers?  After  a  careful 
examination  of  all  the  English  cases  and  those  of  this  State  that  have 
been  cited  or  referred  to,  I  come  to  this  general  conclusion,  that  the 
title  of  property  in  things  movable  can  pass  from  the  owner  only  by 
his  own  consent  and  voluntary  act.  or  by  operation  of  law  ;  but  that  the 
honest  purchaser  who  buys  for  a  valuable  consideration  in  the  course  of 
trade,  without  notice  of  any  adverse  claim,  or  any  circumstances  which 
might  lead  a  prudent  man  to  suspect  such  adverse  claim,  will  lie  pro- 
tected in  his  title  against  the  original  owner  in  those  cases,  and  in  those 
only,  where  such  owner  has,  by  his  own  direct  voluntary  act.  conferred 
upon  the  person  from  whom  the  bona  fide  vendee  derives  title,  the 
apparent  right  of  property  as  owner,  or  of  disposal  as  an  agent.  I  find 
two  distinct  classes  of  cases  under  this  head,  and  no  more. 

I.  The  first  is,  when  the  owner,  with  the  intention  of  sale,  has  in  any 
way  parted  with  the  actual  property  of  his  goods,  with  his  own  consent, 
though  under  such  circumstances  of  fraud  or  error  as  would  make  that 
consent  revocable,  rescind  the  sale,  and  authorize  the  recovery  of  the 
goods  as  against  such  vendee.  Rut  if  the  property  passes  into  the 
hands  of  honest  purchasers,  the  first  owner  must  bear  the  loss.  Thus, 
to  take  an  instance  from  our  own  reports,  where  goods  were  obtained 
by  a  sale  on  credit,  under  a  forged  recommendation  and  guaranty,  and 
then  sold  to  a  bona  fide  purchaser  in  the  customary  course  of  trade. 
1  A  portion  of  the  opinion  is  omitted. 


454  SALTUS   V.    EVERETT.  [CHAP.  IV. 

the  second  buyer  was  protected  in  his  possession  against  the  defrauded 
original  owner.  Mowry  v.  Walsh,  8  Cowen,  243.  So,  again,  where  the 
owner  gave  possession  and  the  apparent  title  of  property  to  a  purchaser, 
who  gave  his  worthless  note,  in  fraudulent  contemplation  of  immediate 
bankruptcy,  a  fair  purchase  from  the  fraudulent  vendee  was  held  to  be 
good  against  the  first  owner.  Root  v.  French,  13  Wendell,  572.  See 
also  McCarty  v.  Vick,  12  Johns.  R.  348.  In  all  such  cases,  to  protect 
the  new  purchaser,  there  must  be  a  full  consent  of  the  owner  to  the 
transfer  of  property,  though  such  consent  might  be  temporary  only, 
obtained  by  fraud  or  mistake,  and  therefore  revocable  against  such 
unfair  first  purchaser. 

II.  The  other  class  of  cases  in  which  the  owner  loses  the  right  of 
following  and  reclaiming  his  property  is,  where  he  has,  by  his  own  vol- 
untary act  or  consent,  given  to  another  such  evidence  of  the  right  o 
selling  his  goods  as,  according  to  the  custom  of  trade,  or  the  common 
understanding  of  the  world,  usually  accompanies  the  authority  of  dis- 
posal ;  or,  to  use  the  language  of  Lord  Ellenborough,  when  the  owner 
"  has  given  the  external  indicia  of  the  right  of  disposing  of  his  prop- 
erty." Here  it  is  well  settled  that,  however  the  possessor  of  such  exter- 
nal indicia  may  abuse  the  confidence  of  his  principal,  a  sale  to  a  fair 
purchaser  divests  the  first  title,  and  the  authority  to  sell  so  conferred, 
whether  real  or  apparent,  is  good  against  him  who  gave  it. 

Thus  the  consignee,  in  a  bill  of  lading,  is  furnished  by  his  consignor 
witli  such  evidence  of  right  of  disposal,  according  to  the  custom  and  law 
of  trade,  so  that  the  bona  fide  holder  of  the  bill  indorsed  by  the  con- 
signee is  entitled  to  all  the  rights  of  property  of  the  consignor  in  those 
goods,  if  bought  fairly  in  the  course  of  business,  although  the  actual 
consignee,  under  whose  indorsement  he  holds,  has  no  right  to  the  goods, 
as  against  the  former  owner.  If  such  goods  were  not  paid  for,  they 
might  be  stopped  in  transitu  by  the  owner,  unless  his  consignee  has 
already  assigned  his  bill  of  lading  ;  but  tbat  assignment  divests  the 
owner  of  his  right  of*  stoppage  against  such  assignee. 

The  famous  series  of  decisions  in  the  various  courts  in  the  case  of 
Lickbarrow  v.  Mason,  2  T.  R.  63,  2  H.  Black.  R.  11,  5  T.  R.  367, 
which  led  to  the  establishment  of  the  doctrine  of  this  qualified  negotia- 
bility of  bills  of  lading,  memorable  alike  in  legal  and  commercial  his- 
tory, strongly  illustrates  the  whole  question  before  us.  There,  Buller 
and  his  associate  judges,  trained  up  at  the  feet  of  the  great  father  of 
English  commercial  jurisprudence,  maintained  and  established  the  law 
as  we  now  bold  it,  under  the  influence  of  Mansfield's  genius,  upon  his 
reasoning  and  on  his  authority,  against  those  of  Lord  Loughborough 
and  others,  the  most  learned  lawyers  of  their  times.  All  the  arguments 
and  admissions  of  both  sides  show  how  deeply  the  general  principle  is 
rooted  in  the  law  of  England,  that  (to  use  Lord  Loughborough's  words) 
"  mere  possession,  without  a  just  title,  gives  no  property,  and  the  per- 
son to  whom  such  possession  is  transferred  by  delivery,  must  take  the 
hazard  of  the  title  of  its  author."     It  is  only  as  an  express  exception 


SECT.  I.J  SALTUS   V.    EVERETT.  455 

to  this  rule  that  it  was  maintained,  and  finally  established,  that  the  cus- 
tom of  merchants,  evidenced  and  sanctioned  by  legal  decisions,  and 
founded  on  those  conveniences  of  trade,  so  admirably  stated  by  Buller, 
had  compelled  the  courts  to  consider  the  owner  as  giving  his  consignee 
evidence  of  the  power  of  disposal,  which  it  was  not  for  him  to  dispute 
when  the  goods  had  fairly  passed  into  other  hands  on  the  faith  of  that 
evidence.  But  there  is  no  case  to  be  found,  or  any  reason  or  analogy 
anywhere  suggested  in  the  books,  which  would  go  to  show  that  the  real 
owner  could  be  concluded  by  a  bill  of  lading  not  given  by  himself,  but 
by  some  third  person,  erroneously  or  fraudulently,  as  in  this  present 
case.  The  assignment  of  the  bill  of  lading  conveys,  not  an  absolute 
right  to  goods,  but  the  right  and  title  merely  of  the  actual  consignor, 
who  alone  is  bound  by  it. 

Again  :  the  owner  ma}"  lose  the  right  of  recovering  his  goods  against 
purchasers,  by  exhibiting  to  the  world  a  third  person  as  having  power 
to  sell  and  dispose  of  them  ;  and  this,  not  only  by  giving  a  direct 
authority  to  him,  but  by  conferring  an  implied  authority.  Such  an 
authority  may  be  implied  by  the  assent  to  and  ratification  of  prior 
similar  dealings,  so  as  to  hold  such  person  out  to  those  with  whom  he 
is  in  the  habit  of  trading,  as  authorized  to  bu}-  or  sell.  It  may  be 
inferred  from  the  nature  of  the  business  of  the  agent,  with  fit  accom- 
panying circumstances.  "  If  a  man,"  says  Bayley,  J.,  in  Pickering  v. 
Buck,  15  East,  44,  "  puts  goods  into  another's  custody,  whose  common 
business  it  is  to  sell,  he  confers  an  implied  authorit}'  to  sell ;  "  and  the 
cause  was  decided  on  that  ground.  But  this  implied  authority  must 
arise  from  the  natural  and  obvious  interpretation  of  facts,  according  to 
the  habits  and  usages  of  business  ;  and  it  never  applies  where  the  char- 
acter and  business  of  the  person  in  possession  do  not  warrant  the  rea- 
sonable presumption  of  his  being  empowered  to  sell  property  of  that 
kind.  If,  therefore,  to  use  an  illustration  of  Lord  Chief  Justice  Ellen- 
borough,  in  the  case  just  cited,  a  person  intrusts  his  watch  to  a  watch- 
maker to  be  repaired,  the  watchmaker  is  not  exhibited  to  the  world  as 
an  owner  or  agent,  and  credit  is  not  given  as  such,  because  he  has 
possession  of  the  watch  ;  the  owner,  therefore,  would  not  be  bound  by 
his  sale.  When  these  exceptions  cease,  the  general  rule  resumes  its 
sway  ;  and  the  law  is  therefore  clear  that  an  agent,  for  a  particular  pur- 
pose, and  under  a  limited  power,  cannot  bind  his  principal  if  he  exceed 
his  power.  ';  Whoever  deals  with  an  agent  constituted  for  a  special 
purpose,  deals  at  his  peril,  when  the  agent  passes  the  precise  limits  of 
his  power."     2  Kent's  Cornm.  G21,  and  the  authorities  there  cited. 

Beyond  the  precise  exceptions  I  have  above  stated,  I  think  our  law 
has  not  carried  the  protection  of  the  fair  vendee  against  the  defrauded 
or  unfortunate  owner.  It  protects  him  when  the  owner's  misplaced 
confidence  has  voluntarily  given  to  another  the  apparent  right  of  prop- 
erty or  of  sale.  But  if  the  owner  loses  his  property,  or  is  robbed  of  it, 
or  it  is  sold  or  pledged  without  his  consent  by  one  who  has  only  a  tem- 
porary right  to  its  use  b}-  hiring,  or  otherwise,  or  a  qualified  possession 


45 b  SALTUS   V.    EVERETT.  [CHAP.  IV. 

of  it  for  a  specific  purpose,  as  for  transportation,  or  for  work  to  be 
performed  on  it,  the  owner  can  follow  and  reclaim  it  in  the  hands  of 
any  person,  however  innocent.  Among  the  numerous  cases  to  this 
effect,  I  will  cite  only  that  of  Howe  v.  Parker,  2  T.  R.  376,  which  I 
select  not  only  on  account  of  the  strong  and  unhesitating  manner  of  the 
decision,  but  because  it  was  pronounced  by  the  very  judges  who,  in  the 
case  of  Lickbarrow  v.  Mason,  had  carried  the  protection  of  a  bona  fide 
purchaser  under  a  bill  of  lading  far  beyond  the  rigor  of  the  ancient  law. 
There,  piate  had  been  pawned  by  a  widow  who  had  only  a  life  interest 
in  it  under  her  husband's  will,  of  which  fact  the  pawnee  had  no  notice. 
Jt  was  not  doubted  that  the  lien  for  the  moneys  advanced  on  such 
pledge  was  void  against  the  remainder-man,  after  the  widow's  death. 
"  Fer  curiam  :  This  point  is  clearly  settled,  and  the  law  must  remain 
as  it  is  until  the  legislature  think  fit  to  provide  that  the  possession  of 
such  chattels  is  proof  of  ownership." 

In  order  to  decide  in  such  conflicts  between  the  claims  of  equally 
meritorious  sufferers  by  the  wrong  of  a  third  party,  public  policy  must 
draw  an  arbitrary  line  somewhere,  and  the  greatest  merit  of  such  a  rule 
must  be  its  certainty  and  uniformity. 

The  rule  of  our  law,  as  I  understand  it,  is  perfectly  consistent  with 
the  equity  between  the  parties,  as  far  as  such  equity  can  apply  ;  and  it 
serves  the  great  interests  of  commerce,  in  a  State  of  such  extensive 
foreign  and  domestic  trade  as  ours,  by  protecting  the  property  of  the 
stranger,  as  well  as  of  our  own  citizens,  against  the  possible  frauds  of 
carriers  by  sea,  or  by  internal  transportation,  whilst  it  throws  upon  the 
resident  merchant  the  responsibility  of  taking  care  with  whom  he  deals, 
and  teaches  him  a  lesson  of  wholesome  caution.  It  is  no  mean  proof 
of  the  wisdom  of  the  rule,  that  it  agrees  in  substance  with  the  provisions 
of  the  Napoleon  Code.  The  code,  like  our  law,  holds  as  a  general  rule, 
that  the  sale  of  goods  by  any  but  the  true  holder,  is  a  nullity.  "  La 
vente  de  la  chose  d'autrui  est  nulle."  Code  Civil,  III.  art.  1599.  It 
con  lines  the  authority  of  the  special  agent  or  mandataire  to  the  strict 
limits  of  his  power ;  and  in  sales,  the  power  must  always  be  special 
and  express.  Code  Civil,  art.  1989.  It  allows  the  right  of  revendi- 
cation  or  stoppage  in  transitu  against  the  insolvent  or  fraudulent 
purchaser  or  consignee;  but  that  right  ceases,  as  with  us,  against  the 
consignee  when  the  goods  have  been  fairly  sold  according  to  the  bills  of 
lading:  "  vendues  sans  fraude  sur  factures  et  connaissemcnts."  Code 
i\r  Commerce,  Liv.  III.  art.  576,  -rj77,  578.  The  Scotch  law,  as  I  gather 
from  Bell's  Commentaries,  lays  down  a  different  rule,  that  "a  purchaser, 
in  the  course  of  trade,  should  be  protected  in  the  purchase  of  goods 
from  any  one  who  has  them  in  lawful  possession."  This  agrees  with 
the  doctrine  of  our  Superior  Court,  and  might  be  a  safe  enough  rule,  if 
generally  adopted  and  understood.  But  it  is  not  the  rule  of  our  own 
law,  which  is  perhaps  quite  as  wise,  as  well  as  certainly  founded  on  a 
much  larger  and  wider  commercial  experience. 

Let  us  apply  these  conclusions  to  the  present  case.     Collins,  the  per- 


SECT.  I.]  SALTUS   V.    EVERETT.  457 

son  whose  s:ile  it  is  asserted  must  divest  the  original  owner  of  his  rights 
in  favor  of  the  bona  fide  purchaser,  stands,  it  is  said  by  the  Superior 
Court,  in  a  double  relation  of  "  a  master,  who  is  at  the  same  time 
the  consignee  of  the  goods,  and  who  himself  filled  the  character  of  ship- 
per, and  has  therefore  an  undoubted  power  to  sell,  and  his  bona  fide 
transfer  will  be  effectual  to  purchasers  against  any  secret  trust  for 
others  with  which  his  appareut  title  might  be  affected."  Ibid  the  lead 
been  consigned  to  Collins  from  the  intermediate  port,  by  the  owner  or 
his  agent,  this  would  be  true.  But  it  is  shipped  by  Myers,  of  whom 
neither  the  owner,  nor  any  one  with  full  power  to  represent  him  in  this 
matter,  had  any  knowledge  as  an  agent,  and  under  whose  care  the  ves- 
sel and  cargo  were  placed  by  Collins,  so  that  he  appeared  only  as  his 
representative,  and  thus  he  styles  himself  in  the  bill  of  lading.  The 
plaintiff  below  comes  in  no  wise  within  the  rule  I  have  stated.  lie  has 
neither  given  to  Collins  documentary  and  mercantile  evidence  of  prop- 
erty in  a  bill  of  lading  from  himself  or  his  own  agent  with  competent 
power,  nor  the  evidence  customary  in  business,  such  as  to  hold  him  out 
as  an  agent  authorized  to  change  the  title  of  his  propert}'  in  his  goods. 
The  assumed  authority  of  shipping  goods  in  his  own  name  and  to  his  own 
order,  at  Norfolk,  and  the  documentary  evidence  of  it  in  the  bill  of 
lading,  can  have  no  more  effect  as  to  the  title  of  the  property  than  if  he 
had  forged  such  a  bill  of  lading  at  New  Orleans. 

Neither  does  the  selection  of  a  ship  and  its  master  vest  in  the  master 
any  implied  authority  to  sell  the  ship,  or  any  part  of  her  cargo.  His 
business  is  to  carry  the  goods,  and  no  more,  with  some  other  clearly 
defined  and  very  limited  powers,  to  be  exercised  only  in  cases  of  al>M>- 
lute  necessity.  He  stands  in  the  same  legal  relation  to  his  cargo  with 
the  watchmaker,  in  the  case  supposed  by  Lord  Ellenborough,  who  has 
in  his  hands  a  watch  to  be  repaired.  He  is  not  exhibited  to  the  world 
as  the  owner,  or  agent  for  selling  ;  and  if  he  does  sell  it,  the  sale  is 
void  against  the  true  proprietor.  The  law  of  shipping  is  well  known  to 
the  commercial  world  to  declare  that  the  master  has  no  authority  to  sell 
the  cargo,  or  any  part  of  it,  unless  under  circumstances  of  pressing 
necessity  abroad  ;  and  of  that  absolute  necessity,  the  burden  of  proof 
rests  on  the  purchaser,  and  the  presumption  is  against  it.  As  Judge 
Bayley  states  the  law  (3  Barn.  &  Cress.  196)  :  "  The  captain  has  no 
right  to  act  as  agent  for  the  owner  of  goods,  unless  in  absolute  neces- 
sity. The  purchaser  obtains  no  property  by  the  act  of  his  profesnng 
to  sell."  And  this  was  held  where  the  master  acted  in  perfect  good 
faith.  I  low  much  stronger  is  the  case  of  a  probable  fraud  !  Thus  again  : 
in  Freeman  v.  East  India  Co.,  5  Barn.  &  Cress.  G19,  Abbott,  Ch.  J.,  says  : 
"  A  sale  of  a  cargo,  or  any  part  of  it,  by  the  master,*can  confer  no 
title,  unless  there  was  an  absolute  necessity;"  and  the  reason  of  the 
rule  is  thus  assigned  by  Judge  Best  in  the  same  case:  "  A  carrier  by 
sea  and  by  land  stands  in  the  same  relation  to  the  owner  of  goods  to 
be  carried.  Their  duty  is  to  carry  the  goods,  and  the  authority  only 
such  as  is  necessary.     The  purchaser,  knowing  that  necessity  alone  can 


458  SALTUS   V.    EVEKETT.  [CHAP.  IV. 

justify  the  sale,  and  give  him  a  title  to  what  he  buys,  will  assure  him- 
self that  there  is  a  real  necessity  for  the  sale  before  he  makes  the 
purchase  ;  and  caution  on  his  part  will  prevent  what  has  frequently 
happened,  —  the  fraudulent  sale  of  ships  and  cargoes  in  foreign  ports." 
Such,  then,  being  the  well-settled  and  generally  known  law,  the  selec- 
tion of  a  master,  or  any  other  carrier,  by  sea  or  hind,  does  nothing  to 
exhibit  such  a  carrier  to  the  world  as  having  the  power  of  disposing  of 
the  goods  he  carries.  The  owner  does  nothing  to  enable  him  to  com- 
mit a  fraud  on  third  persons.  He  gives  merely  a  qualified  possession, 
and  if  that  is  turned  into  an  assumed  right  of  ownership,  it  is  a  tortious 
conversion,  and  will  not  divest  the  owner's  title. 

It  is  true  that  the  rule  will  sometimes,  as  was  urged  by  Chief  Justice 
Jones,  "  involve  purchasers  in  great  perils ;  "  but  that  peril  can 
scarcely  be  called  "  unreasonable,"  since  there  is  a  reason  of  public 
policy  of  at  least  equal  weight  to  counterbalance  this  inconvenience. 
It  is  the  same  which  is  the  ground  of  the  absolute  prohibition  to  a  mas- 
ter or  carrier  to  sell  the  goods  he  transports,  except  under  insurmount- 
able necessity  ;  it  is  to  prevent,  in  the  language  of  the  court  in  the  case 
just  quoted  (5  Barn.  &  Cress.  620),  ''fraudulent  sales  of  ships  and 
cargoes  in  foreign  ports."  Now,  the  fraudulent  consignment  or  change 
of  the  apparent  evidence  of  property  for  the  purpose  of  selling  else- 
where, is  but  another  form  of  the  same  evil.  I  may  add  that  this  same 
rule,  however  rigid  and  occasionally  hard  in  its  operations,  is  no  small 
safeguard  to  the  protection  of  the  owner's  rights  in  goods  and  other 
property,  in  active  commerce  necessarily  placed  under  the  temporary 
control,  and  in  the  legal  though  qualified  possession  of  agents,  sailors, 
carriers,  boatmen,  servants,  and  clerks,  as  well  as  of  those  who  may  have 
them  stpred  for  safe  keeping,  and  their  clerks,  porters,  and  servants. 

On  the  other  question,  as  to  the  right  of  the  defendants  below  to 
stand  m  the  place  of  their  vendor,  and  to  be  protected  to  the  extent  of 
the  charges  on  the  lead  for  freight,  as  claimed  by  Collins,  I  need  say 
but  little.  The  right  of  lien  in  such  circumstances  (if  any  right  exist 
here)  depends  upon  actual  possession  by  the  factor,  or  carrier,  or  his 
immediate  agent.  When  the  goods  are  sold  and  delivered  to  a  third 
person,  the  lien,  as  such,  expires  with  the  possession.  This  is  the  dis- 
tinction between  the  present  case  and  the  former  suit  against  Coffin  & 
Cartwright,  who  were  immediate  agents  or  bailees  of  Collins. 

The  two  courts  below  have  agreed  in  deciding  against  the  validity  of  the 
objections  to  the  evidence  raised  on  the  trial  of  the  cause,  and  I  have 
nothing  to  add  to  the  reasons  they  assign  ;  to  all  which  I  fully  assent. 

The  importance  of  the  principles  and  rules  not  only  of  decision,  but 
of  active  business  involved  in  this  cause,  especially  in  relation  to  that 
vast  and  busy  community  which  I  immediately  represent  in  this  body. 
has  led  me  to  examine  this  whole  head  of  law  with  an  interest  and  at  a 
length  wholly  disproportioned  to  the  amount  of  value  in  controversy. 
If  the  views  I  have  been  able  to  present  shall  in  any  way.  directly  or 
indirectly,  tend  to  settle  the  law  on  this  head,  or  make  it  more  clearly 


SECT.  I.]  BAENAHD   V.    CAMPBELL.  459 

and  correctly  understood,  the  study  I  have  given  the  subject  will  have 
been  well  bestowed. 

I  am  of  opinion  that  the  judgment  of  the  Supreme  Court,  reversing 
that  of  the  Superior  Court  of  New  York,  be  affirmed. 

Judgment  unanimously  affirmed.1 


BARNARD  v.  CAMPBELL. 

New  York  Court  of  Appeals,  Decembeb  17,  1873,  January  20, 

June  16,  1874. 

{Reported  in  55  New  York,  45G  ;  58  New  York;  73.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  in 
the  first  judicial  department,  reversing  a  judgment  in  favor  of  plain- 
tiffs and  granting  a  new  trial. 

This  was  an  action  of  replevin  to  recover  possession  of  1,370  bags 
of  linseed. 

Defendants,  who  were  merchants  in  New  York,  had,  prior  to  August 
21,  1863,  been  negotiating  with  one  E.  P.  Jeffries,  of  Boston,  for  the 
purchase  of  a  quantity  of  linseed  ;  the  negotiations  were  closed  on  the 
twenty-first,  by  a  sale  of  Jeffries,  through  his  broker  in  New  York,  of 
1,800  bags.  Pursuant  to  the  terms  of  sale,  defendants,  on  the  same 
day.  mailed  to  Jeffries  their  notes  for  the  seed  purchased,  which  were 
received  by  him  and  immediately  pledged  as  collateral  for  a  loan.  Dur- 
ing these  negotiations,  Jeffries  had  been  negotiating  with  plaintiffs,  at 
Boston,  for  the  purchase  of  linseed,  and  on  the  twenty-first  contracted 
for  1,800  bags.  It  was  disputed  upon  the  trial  whether  the  sale  was 
to  be  for  cash  or  upon  a  ten  days'  credit.  On  the  twenty-fourth  of 
August,  plaintiffs,  induced  by  fraudulent  representations  upon  the  part 
of  Jeffries,  delivered  to  him  an  order  for  1,370  bags,  which  were  de- 
livered to  him  and  shipped  to  defendants.  A  bill  of  lading  was  taken 
deliverable  to  them,  which  was  forwarded  by  mail  on  the  twenty-fifth. 
Jeffries  failed  on  the  twenty-seventh.  On  the  arrival  of  the  seed  in 
New  York,  it  was  demanded  by  plaintiffs. 

Further  facts  appear  in  the  opinion. 

James  C.  Carter,  for  the  appellants. 

Edwards  Pierrepont,  for  the  respondents. 

Allen,  J.  The  only  question  involved  in  the  action  is,  whether  the 
plaint  ills  and  original  owners  or  the  defendants,  the  purchasers  from 
Jeffries,  the  fraudulent  vendee  of  the  plaintiffs,  have  the  better  title  to 
the  merchandise  in  controversy.  That,  as  against  Jeffries,  the  right  of 
the  plaintiffs  to  rescind  the  sale  and  reclaim  the  goods,  by  reason  of  the 
fraud  of  the  former,  is  perfect,  is  conceded,  and  was  so  held  upon  the 
trial.     Such  right  continues  as  against  any  one  acquiring  title  under 

1  Chancellor  Walworth  delivered  a  brief  opinion  in  favor  of  affirming  the 
judgment  of  the  Supreme  Court. 


4C0  BARNARD   V.    CAMPBELL.  [CHAP.  IV. 

Jeffries,  unless  under  well-recognized  principles  of  law,  and,  under  the 
circumstances  of  this  case,  Jeffries  could  transfer  a  better  title  than  he 
had,  or  the  plaintiffs,  by  their  acts,  are  estopped  from  asserting  title  as 
against  a  purchaser  from  him. 

But  two  questions  of  fact  were  submitted  to  the  jury  :  1.  Whether 
the  sale  to  Jeffries  was  for  cash  or  upon  credit ;  and,  2.  If  for  cash, 
whether  payment  was  waived  and  the  goods  delivered  so  as,  but  for 
the  fraud,  to  vest  the  property  in  Jeffries. 

.The  jury  found,  either  that  the  sale  was  upon  credit,  or  that  the  pay- 
ment of  the  purchase-price,  as  a  condition  precedent  to  the  delivery 
of  the  property  to  and  the  vesting  of  the  title  in  Jeffries  was  waived, 
and  that  the  delivery  to  him  was  absolute  and  unconditional ;  and  the 
defendants  had  a  verdict,  under  the  instructions  of  the  judge,  that  the 
equitable  rule  applied,  that  when  one  of  two  innocent  parties  must 
suffer  loss  by  reason  of  the  fraud  or  deceit  of  another,  the  loss  shall 
fall  upon  him  by  whose  act  or  omission  the  wrong-doer  has  been  en- 
abled to  commit  the  fraud  ;  and  that  the  plaintiffs  were  in  the  position 
of  a  party  who  lets  another  have  property  unconditionally,  and  thereby 
enables  him  to  sell  the  same  and  receive  the  purchase-price  from  a  third 
person  ;  and  that  in  such  case  the  purchaser  takes  the  title.  In  other 
words,  the  plaintiffs  were  held  to  be  estopped  from  claiming  the  goods 
from  the  defendants  in  case  the  jury  found  that  there  had  been  an  un- 
conditional delivery  by  the  plaintiffs  to  Jeffries,  notwithstanding,  as  the 
judge  at  the  circuit  expressly  declared,  and  as  the  evidence  showed, 
the  defendants  purchased  the  goods  from  a  broker  of  Jeffries  in  New 
York  on  the  twenty-first  of  August,  and  paid  for  them  the  same  day  by 
transmitting  their  notes  to  Jeffries,  at  Boston,  who  at  once  negotiated 
them  ;  and  Jeffries  obtained  neither  the  property  nor  any  order  for  its 
delivery,  or  documentary  evidence  of  title  or  of  his  purchase,  until  the 
twenty-fourth  of  the  same  month,  three  da}'s  after  the  transaction  was 
consummated  as  between  Jeffries  and  the  defendants.  That  is,  it  was 
held  at  the  circuit  that  the  subsequently  acquired  possession  of  Jeffries 
operated  by  relation  to  create  an  estoppel  as  of  the  twenty-first  of 
August,  in  favor  of  the  defendants  and  against  the  plaintiffs  ;  and  the 
jury  were  in  terms  instructed  that  the  defendants  were  purchasers  in 
good  faith,  for  value,  and  acquired  a  title  paramount  to  that  of  the 
plaintiffs,  and  were  entitled  to  a  verdict;  and  thej"  had  a  verdict  and 
judgment,  upon  this  view  of  their  rights. 

That  the  defendants  were  purchasers  in  good  faith,  that  is,  without 
notice  or  knowledge  of  the  fraud  of  Jeffries,  or  of  the  defects  in  his  title, 
for  a  full  consideration  actually  paid  to  Jeffries,  is  not  disputed.  Both 
plaintiffs  and  defendants  are  alike  innocent  of  any  dishonest  or  fraudu- 
lent intent,  and  one  or  the  other  must  suffer  loss  by  the  frauds  of  one 
wilh  whom  they  dealt  in  good  faith,  for  legitimate  purposes,  and  with 
honest,  intention.  Both  were  alike  the  victims  of  the  same  fraudulent 
actor,  and  if  one  rather  than  the  other  of  the  parlies  has  done  any  act 
enabling  the  fraud  to  be  committed,  and  without  which  it  could  not  have 


SECT.  I.]  BARNARD   V.    CAMPBELL.  4G1 

been  perpetrated  upon  the  other  in  the  exercise  of  ordinary  care  and 
discretion,  the  loss  should,  within  the  rule  before  referred  to,  fall  on 
that  one  of  the  parties  aiding  and  abetting  the  fraud,  or  enabling  it  to 
be  committed.  But  good  faith,  and  a  parting  of  value  by  the  one,  will 
not  alone  determine  who  should  have  the  loss,  or  fix  the  ownership  of 
the  property  fraudulently  purchased  from  the  one  and  sold  to  the 
other.  The  general  rule  is  that  a  purchaser  of  property  takes  only  such 
tide  as  his  seller  has,  and  is  authorized  to  transfer;  that  he  acquires 
precisely  the  interest  which  the  seller  owns,  and  no  other  or  greater. 
Nemo  plus  juris  ad  alium  transferre  potest  quam  ipse  habet.  Broom's 
Leg.  Max.,  452.  The  general  rule  of  law  is  undoubted  that  no  one 
can  transfer  a  better  title  than  lie  himself  possesses.  Nemo  d<tt  quod 
non  habet.  Per  Willes,  J.,  Whistler  v.  Forster,  14  C.  B.  [n.  s.J  248. 
To  this  rule  there  are,  however,  some  exceptions,  and  unless  the 
defendants  are  within  the  exceptions  they  must  abide  by  the  title  of 
Jeffries. 

One  of  the  recognized  exceptions  applies  to  negotiable  instruments 
only,  and  depends  for  its  existence  upon  the  law-merchant  and  the 
reasons  of  public  policy  upon  which  that  branch  of  the  law  rests.  To 
make  this  exception  available,  the  negotiable  paper  must  be  actually 
transferred  by  indorsement  in  the  usual  form  and  for  value.  Whistler 
v.  Forster.  supra  ;  Muller  v.  Pondir,  55  N.  Y.  325  ;  Story  on  Prom. 
Notes,  §  120  [note  1]  ;  Calder  v.  Billington,  15  Maine,  398;  Southard 
v.  Porter,  43  N.  11.  379.  Another  exception  is  in  the  case  of  a  transfer 
by  indorsement  and  deliver}'  of  a  bill  of  lading,  which  is  the  symbol  of 
the  property  itself,  to  a  bona  fide  purchaser  for  value,  by  a  consignee 
to  whom  the  consignor  and  original  owner  of  the  goods  has  indorsed 
and  delivered  it.  This  exception  is  founded  on  the  nature  of  the  instru- 
ment, and  the  necessities  of  commerce.  The  bill  of  lading,  for  the  con- 
venience of  trade,  has  been  allowed  to  have  effect  at  variance  with  the 
general  rule  of  law.  ,  But  this  operation  of  a  bill  of  lading  is  confined 
to  a  case  where  the  person  who  transfers  the  right  is  himself  in  pos- 
session of  the  bill  of  lading  so  as  to  be  in  a  situation  to  transfer  the 
instrument  itself,  the  symbol  of  the  propert}"  transferred.  Jenkyns  v. 
Usborne,  7  M.  &  G.  G78  ;  Akerman  v.  Humphery,"  1  C.  &  P.  53. 

Bills  of  lading  differ  essentially  from  bills  of  exchange  and  other  com- 
mercial negotiable  instruments  ;  and,  even  possession  of  a  bill  of  lading, 
without  the  authority  of  the  owner  and  vendor  of  the  goods,  or  when 
obtained  by  fraud,  will  not  authorize  a  transfer  so  as  to  defeat  the  title 
of  the  original  owner,  or  affect  his  right  to  rescind  the  sale  and  stop 
the  goods  in  transit.  While  possession  of  a  bill  of  lading,  or  other 
document  of  like  nature  may  be  evidence  of  title,  and  in  some  circum- 
stances and  for  some  purposes  equivalent  to  actual  possession  of  the 
goods,  it  does  not  constitute  title,  nor  of  itself  affect  the  operation  of  the 
general  rule  that  property  in  chattels  cannot  be  transferred  except  by 
one  having  the  title  or  an  authority  from  the  true  owner.  Gurney  v 
Behrend,  3  Ellis  &  Black,  622  ;  Dows  v.  Perrin,  16  N.  Y.  325  ;  see  also 


462  BARNARD   V.    CAMPBELL.  [CHAP.  IV. 

Saltus  v.  Everett,  20  Wend.  2G7  ;  Brown  v.  Peabody,  3  Kern.  121. 
Jeffries  had  no  bill  of  lading  from  the  plaintiffs,  the  vendors  of  the  goods, 
or  any  document  of  like  character  transferable  in  the  usual  course  of 
business,  and  the  transfer  and  delivery  of  which  to  a  purchaser  for  value 
would  have  operated  as  a  symbolical  delivery  of  the  goods,  and  been 
the  equivalent  of  an  actual  deliver}-,  so  as  to  terminate  the  right  of  the 
plaintiffs  to  rescind  the  sale  and  reclaim  the  goods. 

Another  exception  to  the  general  rule  exists  in  the  case  of  a  sale  in 
market  overt ;  but  as  we  have  no  markets  overt,  and  there  are  no  sales, 
public  or  private,  known  to  our  law,  which  relieve  the  buyer  of  merchan- 
dise from  the  rule  of  caveat  emptor,  as  applied  to  the  title,  this  excep- 
tion need  not  be  further  considered. 

The  defendants  can  only  resist  the  claim  of  the  plaintiffs  to  the  mer- 
chandise by  establishing  an  equitable  estoppel,  founded  upon  the  acts 
of  the  plaintiffs,  and  in  the  application  of  the  rule  applied  by  the  judge 
at  the  circuit,  by  which,  as  between  two  persons  equally  innocent,  a  loss 
resulting  from  the  fraudulent  acts  of  another  shall  rest  upon  him  by 
whose  act  or  omission  the  fraud  has  been  made  possible.  This  rule, 
general  in  its  terms,  only  operates  to  protect  those  who,  in  dealing  with 
others,  exercise  ordinary  caution  and  prudence,  and  who  deal  in  the 
ordinary  way  and  in  the  usual  course  of  business  and  upon  the  ordinary 
evidences  of  right  and  authority  in  those  with  whom  they  deal,  and  as 
against  those  who  have  voluntarily  conferred  upon  others  the  usual 
evidences  or  indicia  of  ownership  of  property,  or  an  apparent  authority 
to  deal  with  and  dispose  of  it.  In  such  case,  for  obvious  reasons,  the 
law  raises  an  equitable  estoppel,  and,  as  against  the  real  owner,  declares 
that  the  apparent  title  and  authority  which  exists  by  his  act  or  omis- 
sion shall  quoad  persons  acting  and  parting  with  value  upon  the  faith 
of  it,  stand  for  and  be  regarded  as  the  real  title  and  authority.  It  is 
not  eveiy  parting  with  the  possession  of  chattels  or  the  documentary 
evidence  of  title  that  will  enable  the  possessor  to  make  a  good  title  to 
one  who  may  purchase  from  him.  So  far  as  such  a  parting  with  the 
possession  is  necessary  in  the  business  of  life,  or  authorized  by  the  cus- 
tom of  trade,  the  owner  of  the  goods  will  not  be  affected  b}'  a  sale  by 
the  one  having  the  custody  and  manual  possession.  Dyer  v.  Pearson, 
3  B.  &  C.  38  ;  Newsom  ;;.  Thornton.  6  East,  17;  Dayton  v.  Kynne, 
3  B.  &  A.  320  ;  Ballard  u.  Burgett,  40  N.  Y.  314.  But  the  owner  must 
go  farther,  and  do  some  act  of  a  nature  to  mislead  third  persons  as  to 
the  true  position  of  the  title.     Pickering  v.  Busk,  15  East.  38. 

Two  things  must  concur  to  create  an  estoppel  by  which  an  owner  may 
lie  deprived  of  his  property,  by  the  act  of  a  third  person,  without  his 
assent,  under  the  rule  now  considered.  1.  The  owner  must  clothe  the 
person  assuming  to  dispose  of  the  property  with  the  apparent  title  to, 
or  authority  to  dispose  of  it ;  and,  2.  The  person  alleging  the  estoppel 
must  have  acted  and  parted  with  value  upon  the  faith  of  such  apparent 
ownership  or  authority,  so  that  he  will  be  the  loser  if  the  appearances  to 
which  he.  trusted  are  not  real.  In  this  respect  it  does  not  differ  from 
other  estoppels  in  pais.     Weaver  v.  Barden,  49  N.  Y.  28G  ;  McGold- 


SECT.  I.]  BAENAED   V.    CAMPBELL.  463 

rick  v.  Willets,  52  id.  612  ;  City  Bank  v.  R.  W.  &  O.  R.  Co.,  44  id.  136  ; 
Saltus  v.  Everett,  20  Wend.  2G7  ;  Wooster  v.  Sherwood,  25  X.  Y.  278  ; 
Brower  v.  Peabody,  3  Kern.  121. 

In  the  case  before  us  every  element  of  an  estoppel  is  wanting,  and  no 
case  was  made  for  the  application  of  the  rule  by  which,  under  some  cir- 
cumstances, one,  rather  than  the  other  of  two  innocent  persons,  is  made 
to  bear  the  loss  occasioned  by  the  fraud  of  a  third  person. 

The  defendants  consummated  their  purchase  from  Jeffries,  acting 
through  his  broker  in  New  York,  and  paid  for  the  merchandise  by  re- 
mitting, at  his  request,  directly  to  Jeffries  on  the  twemVv-first  of  August, 
at  which  time  Jeffries  had  neither  the  possession  nor  right  of  pos- 
session of  the  property,  nor  any  documentary  evidence  of  title  or  any 
indicia  of  ownership,  or  of  dominion  over  the  property  of  any  kind. 
The  plaintiffs  had  done  nothing  to  induce  the  defendants  to  put  faith  in 
or  give  credit  to  the  claim  of  Jeffries  of  the  right,  to  sell  the  property. 
The  defendants  then  parted  with  the  consideration  for  the  purchase  of 
the  seed,  not  upon  the  apparent  ownership  of  Jeffries,  but  upon  his  as- 
sertion of  right  of  which  the  plaintiffs  had  no  knowledge,  and  for  which 
they  are  not  responsible.  Neither  did  the  defendants  at  any  time  do  or 
forbear  to  do  any  act  in  reliance  upon  the  apparent  ownership  of  the 
property  by  Jeffries,  or  induced  by  any  act  or  declaration  of  the  plain- 
tiffs. In  Knights  v.  Wiffen,  L.  R.  5  Q.  B.  660,  the  plaintiff' was  induced 
to  rest  satisfied  under  the  belief  that  he  had  acquired  title  to  the  prop- 
erty purchased,  and  so  to  alter  his  position,  by  abstaining  from  pro- 
ceedings to  recover  back  the  money  which  he  had  paid  to  his  vendor, 
by  the  declaration  of  the  defendant  that  it  was  all  right,  and  his  prom- 
ise that  when  the  forwarding  note  should  be  received  he  would  put  the 
barley  on  the  line.  The  defendants  here  at  no  time  had  any  declaration 
or  statement  of  the  plaintiff's  upon  which  to  rely,  and  were  not  led  to 
act  or  forbear  to  act  b}*  any  documentary  evidence  of  title  in  Jeffries 
emanating  from  them.  There  is  a  manifest  equity  in  holding  the  owner 
of  propert}-  estopped  from  asserting  title  as  against  one  who,  for  value 
actually  paid,  has  purchased  it  from  one  having,  by  the  voluntary  act 
or  negligence  of  the  owner,  the  apparent  title  with  right  of  disposal,  but 
with  this  limitation  there  is  no  hardship  in  holding  to  the  rule  that  the 
right  of  property  in  chattels  cannot  be  transferred  unless  on  the  ground 
of  authority  or  title.  Public  policy  requires  that  purchasers  of  property 
should  be  vigilant  and  cautious,  at  least  to  the  extent  of  seeing  that 
their  vendors  have  some  and  the  usual  evidence  of  title,  and  if  they  are 
content  to  rest  upon  their  declarations  they  may  not  impose  the  loss, 
which  is  the  result  of  their  own  inoautiousness  or  credulity,  on  another. 
The  payment  for  or  parting  with  value  for  the  goods  by  the  purchaser 
from  the  fraudulent  vendee  lays  the  foundation  of  the  estoppel,  for.  if  he 
has  parted  with  nothing,  he  can  lose  nothing  by  the  retaking  of  the 
goods  by  the  original  owner,  and  that  payment  must  be  occasioned  by 
the  acts  or  omissions  of  such  owner.  It  is  the  payment  that  creates 
the  estoppel,  and  if  that  is  not  made  in  reliance  on  the  acts  of  the  owner, 
the  latter  is  not  and  cannot,  in  the  nature  of  things,  be  estopped. 


464  BARNARD   V.    CAMPBELL.  [CHAP.  IV. 

The  order  granting  a  new  trial  must  be  affirmed,  and  judgment  abso- 
lute for  the  plaintiffs. 

All  concur.  Order  affirmed,  and  judgment  accordingly. 

A  motion  for  reargument  was  made  and  was  argued  by 

James  C.  Carter,  for  the  motion. 

Edwards  Pierrepont,  opposed. 

Allen,  J.  The  question  considered  by  this  court,  and  discussed  in 
the  opinion  delivered  on  giving  judgment  upon  this  appeal  was  that  dis- 
tinctly presented  by  the  exceptions  to  the  ruling  and  decisions  of  the 
judge  upon  the  trial,  and  as  that  was  decisive  and  led  to  an  affirmance 
of  the  order  granting  a  new  trial  and  a  final  judgment  for  the  plaintiffs, 
it  was  not  deemed  necessary,  in  assigning  the  reasons  for  the  judgment, 
to  canvass  particularly  the  argument,  or  review  in  detail  the  authorities 
cited  by  counsel  upon  a  somewhat  different  view  of  the  case.  The  en- 
tire brief,  and  all  the  authorities  cited,  were,  nevertheless,  carefully 
examined  and  considered  ;  and,  had  the  court  adopted  the  views  of  the 
learned  counsel  for  the  appellants,  it  is  possible  a  way  might  have  been 
found  to  sustain  the  defendants'  claim  to  the  property,  notwithstanding 
the  pointed  exceptions  to  propositions  in  the  instructions  to  the  jury, 
which  were  deemed  erroneous.  The  case  has  been  again  carefully  ex- 
amined, and  upon  the  theory  of  the  counsel  for  the  appellants,  and  with 
the  aid  of  his  very  able  brief,  submitted  upon  the  present  motion,  and 
the  court  sees  no  reason  to  interfere  with  the  judgment  already  given. 
It  is  proper  to  say  that  the  unusual  delay  in  passing  upon  the  present 
application  has  not  been  because  of  any  intrinsic  difficulties  in  the  ques- 
tion presented,  or  any  serious  doubt  as  to  the  correctness  of  the  former 
decision. 

Isolated  expressions  may  be  found  in  elementary  treatises,  as  well  as 
in  judicial  opinions,  which  give  color  to  the  claim  of  the  defendants,  to 
hold  the  property  in  dispute  as  against  the  plaintiffs,  but  these  were 
not  intended  to,  and  do  not,  give  the  rule  by  which  this  and  like  cases 
are  controlled.  They  are  all  proper,  in  the  connection  in  which  they 
are  found  and  for  the  purposes  for  which  they  were  used,  and  ought  not  to 
receive  any  other  interpretation  than  such  as  was  designed  by  the 
authors.  It  must  be  conceded  that  upon  the  delivery  of  the  goods  to 
Jeffries  by  the  plaintiffs,  under  the  circumstances,  the  property  passed 
to  Jeffries,  and  the  fact  that  the  delivery  was  induced  by  fraud  did  not 
render  the  contract  void.  It  was  mereh;  voidable  at  the  instance  of  the 
plaintiffs,  who  might  elect  to  disaffirm  the  contract  and  reclaim  the 
property.  That  is,  the  contract  of  sale  was  defeasible  at  the  election 
of  the  plaintiffs,  the  vendors,  if  the  election  was  seasonably  made,  and 
the  goods  reclaimed  in  proper  time,  after  the  discovery  of  the  fraud. 
The  plaintiffs  could  lose  the  right  by  delay  as  against  the  wrong-doer, 
if,  in  consequence  of  such  delay,  his  position  should  be  changed,  and 
they  would  have  lost  it  absolutely  if  during  the  interval  between  the 
delivery  of  the  goods,  the  vesting  of  this  defeasible  title  in  the  purchaser, 


SECT.  L]  BARNARD   V.    CAMPBELL.  465 

Jeffries,  and  the  disaffirmance  of  the  sale  by  the  plaintiff's,  the  goods  had 
been  sold  to  an  innocent  third  party  for  a  valuable  consideration.  The 
superior  equity  of  a  purchaser  of  property  from  one  who  has  acquired  a 
title  defeasible  at  the  election  of  the  former  owner  and  vendor,  by  reason 
of  fraud,  to  that  of  such  owner  seeking  to  reclaim  his  property,  is  based 
upon  the  fact  that  acting  upon  the  evidence  of  title  which  the  owner  has 
permitted  the  wrong-doer  to  assume  and  possess,  he  has  been  induced 
to  part  with  value,  and  will  be  the  loser  because  of  the  credit  given  to 
the  apparent  ownership  if  he  is  compelled  to  surrender  the  property. 
The  mere  possession  by  the  party  claiming  to  hold  will  not  sustain  his 
claim,  but  the  circumstances  under,  and  consideration  upon  which  he 
has  acquired  the  possession  are  also  material.  Were  it  otherwise,  an 
assignee  for  the  benefit  of  creditors,  or  one  who  should  take  as  collat- 
eral security  for  the  payment  of  a  precedent  debt,  would  hold  as  against 
the  original  owner,  which  is  not  claimed  and  is  contrary  to  the  whole 
current  of  authority.  Several  things  must  concur  to  bar  the  claim  of 
the  defrauded  vendor.  1.  He  must  have  parted  with  possession  of  his 
property  with  intent  to  pass  the  title  to  the  wrong-doer,  thus  giving  him 
the  apparent  right  of  disposal.  If  property  is  taken  feloniously  or  with- 
out the  consent  of  the  owner,  the  taker  can  make  no  title  to  it,  even  to 
an  innocent  purchaser  for  value.  2.  A  third  party  must  have  acquired 
title  from  the  wrong-doer  without  notice  of  the  defects  in  his  title  or 
knowledge  of  circumstances  to  put  him  to  an  inquiry  as  to  the  source  of 
his  title.  And,  3.  Such  third  party  must  have  parted  with  value  upon 
the  faith  of  the  apparent  title  of  the  wrong-doer,  and  his  right  to  dis- 
pose of  the  property.  If  any  of  these  elements  are  wanting,  the  vendor 
seasonably  pursuing  his  legal  right  may  have  his  property.  That  this 
formula  very  closely  resembles  that  by  which  an  estoppel  in  pais  is  de- 
fined and  limited  is  true,  and  this  must  necessarily  be  so,  so  long  as 
the  rights  based  upon  each  have  the  same  equitable  foundation.  The 
defendants  parted  with  no  value,  incurred  no  liability,  and  in  no  respect 
changed  their  situation  in  the  interval  between  the  delivery  of  the  mer- 
chandise by  the  plaintiff's  to  Jeffries,  and  their  disaffirmance  of  the  con- 
tract, and  reclaiming  the  goods.  In  other  words,  they  did  nothing  in 
consequence  of  such  delivery  to  Jeffries  or  based  upon  his  title  and  pos- 
session, and  are  in  precisely  the  same  situation  as  if  the  goods  had 
never  left  the  possession  of  the  plaintiffs.  They  parted  with  their  notes 
and  incurred  obligations  upon  the  faith  of  the  promise  and  agreement 
of  Jeffries  and  upon  his  credit  alone. 

It  is  possible  that  the  claim  of  the  defendants  to  hold  as  bona  fide 
purchasers  for  value  is  sustained  by  Fenby  v.  Pritchard,  2  Sandf.  151, 
but  this  case  is  so  at  war  with  principles  recognized  as  well  settled  by 
this  court  in  analogous  cases,  that  it  cannot  be  regarded  as  well  decided. 
The  cases  cited  from  Maine  and  Illinois  (Lee  v.  Kimball,  45  Me.  172  : 
Butters  v.  Haughwout,  42  111.  18 J),  treat  the  case  as  analogous  to  a 
transfer  of  negotiable  paper,  and  hold  that  a  precedent  debt  is  a  valu- 
1  This  decision  was  followed  in  Kranert  v.  Simon,  65  El.  344. 

30 


±66  BARNARD  V.    CAMPBELL.  [CHAP.  IV7. 

able  consideration  for  the  transfer,  and  gives  the  transferee  a  good  title 
as  against  the  former  owner.  This  is  in  direct  conflict  with  the  uniform 
decisions  in  this  State,  from  Bay  v.  Coddington,  5  J.  Ch.  54  ;  affirmed, 
20  J.  R.  637,  to  Weaver  r.  Barden,  49  N.  Y.  286  ;  affirmed.  Turner  v. 
Treadway,  53  id.  650.  One  other  case  from  Maine  cited  by  the  counsel 
for  the  appellants  (Titcomb  v.  Wood,  38  Me.  561),  recognizes  the  ne- 
cessity of  a  valuable  consideration,  as  that  term  is  understood  and  used 
by  the  courts  of  this  State,  as  necessary  to  give  the  purchaser  of  prop- 
erty from  a  fraudulent  vendor  a  superior  equit}'  and  title  to  that  of  the 
former  owner,  and  find  such  a  consideration  in  the  transfer  of  property 
before  then  stolen  from  the  defendant.  The  court  say:  "Here  the 
defendant  being  the  owner  of  stolen  property,  with  his  right  and  title 
unimpaired  by  the  felony,  transferred  it  to  McClure  for  the  property  in 
question,  in  part  payment,  at  least.  This  constituted  a  valuable  con- 
sideration for  his  purchase,  given  at  the  time.  Thus,  it  appears  that  he 
was  a  purchaser  of  the  gold  watch,  bona  fide,  for  a  valuable  considera- 
tion, and  without  notice  of  the  fraud  by  which  his  vendor  acquired  it. 
This  gives  him  a  superior  equity  and  a  better  right,  and  enables  him  to 
hold  the  property  against  the  defrauded  vendor."  Hutton  v.  Cruttwell, 
1  El.  &  Bl.  15,  and  Mercer  v.  Peterson,  Law  Rep.  2  Ex.  304,  relied 
upon  in  support  of  this  application,  presented  questions  under  the 
English  Bankrupt  Acts,  and  merely  decide  that  a  transfer  of  effects,  by 
the  bankrupt,  in  performance  of  a  prior  executory  agreement,  for  which 
a  full  consideration  had  been  paid  at  the  time  of  the  agreement,  was  not 
within  the  condemnation  of  the  act  or  affected  b}*  the  proceedings  in 
bankruptcy.  They  do  not  bear  upon  the  question  before  us.  In  Clough 
v.  L.  &  N.  W.  R.  Co.,  L.  R.  7  Exch.  26,  the  question  was  whether  the 
claim  to  disaffirm  the  sale  of  the  goods  was  seasonably  made  by  the 
defrauded  vendor.  The  vendor  had  first  sought  to  stop  the  goods  in 
transitu,  which  was  an  act  in  affirmance  of  the  sale  ;  but  the  transit  was 
ended  before  notice  reached  the  carrier.  There  was  no  act  avoiding 
the  contract  on  the  ground  of  fraud  done  b}'  the  vendor,  until  the  plea 
in  the  action  by  Clough,  who  was  found  by  the  jury  to  be  cognizant  of, 
and  a  part}*  to,  the  fraud  in  the  purchase.  No  question  of  considera- 
tion or  the  validity  of  any  sale  of  the  goods  by  the  fraudulent  purchaser 
was  in  the  case,  or  considered  by  the  court.  Disbrow  v.  McDonald, 
5  Bos.  130  ;  s.  c,  sub  nom.  Winne  v.  McDonald,  39  N.  Y.  233,  was 
clearby  within  the  rule  upon  the  interpretation  given  to  the  transaction 
by  the  courts.  It  was  said  by  the  Superior  Court  that  Perry  &  Co.,  the 
purchasers  of  the  wheat,  had  the  full  possession  of  it  in  the  precise 
manner  that  the  contract  between  them  and  the  plaintiffs  contemplated, 
and  that  the  purchase  and  possession  of  Perry  were  such  as  to  enable 
him  to  confer  upon  a  bona  fide  purchaser,  a  pledgee  for  value,  a  title 
valid  as  against  the  plaintiffs  ;  and  that  the  advance  was  made  by  the 
defendants  after  the  delivery  to  Perry  &  Co.  of  the  documentary  evi- 
dence of  title,  and  the  wheat  pledged  as  security  at  the  time  of  the 
advance.     The  evidence  upon  the  record  in  this  court,  it  would  seem, 


SECT.  I.]  PARKER   V.    BAXTER.  467 

left  the  precise  time  when  some  of  the  occurrences  took  place  in  doubt, 
but  that  the  specific  wheat  was  pledged,  at  the  time  of  the  advance,  was 
established,  although  possibly  the  muniments  of  title  were  not  then 
delivered.  The  title  and  possession  had  vested  in  Perry  &  Co.  at  the 
time  of  the  pledge;  and  that  fact  clearly  distinguished  that  from  the 
present  case. 

Judge  Bosworth,  in  Caldwell  u.  Bartlett,  3  Duer,  341,  and  Keyser  v. 
Harbeck,  id.  372,  recognizes  the  doctrine  that  the  advance  must  be 
made  or  consideration  parted  with  upon  the  faith  of  the  title  of  one  in 
actual  possession  of  the  property,  or  the  written  evidence  of  title,  to 
give  an  indefeasible  title  as  against  the  true  owner.  All  the  authorities 
are  direct  and  to  the  effect  that  no  one  but  a  bona  fide  purchaser,  or 
pledgee  for  value  —  that  is,  one  who  gives  value  for  or  makes  advances 
upon  goods  obtained  from  the  owner  by  fraud  or  fraudulent  representa- 
tion —  and  that  he  who  has  paid  value,  or  made  advances,  or  incurred 
responsibilities  upon  the  credit  of  them,  can  alone  claim  to  hold  them  as 
against  such  owner.  Root  v.  French,  13  Wend.  573  ;  Mowrey  v.  Walsh, 
8  Cow.  238  ;  Hoffman  v.  Noble,  6  Met.  68.  There  is  no  good  reason 
or  equity  in  placing  the  burden  of  a  fraudulent  sale  upon  a  bona  fide 
vendor  rather  than  upon  a  bona  fide  purchaser  from  the  fraudulent  vendee, 
unless  the  purchaser  has  parted  with  his  mone}',  or  some  value,  upon 
the  credit  of  possession  or  some  evidence  of  title  in  the  vendee,  re- 
ceived from  the  original  owner,  and  by  means  of  which  he  has  induced 
the  purchaser  to  treat  with  him  as  owner. 

The  motion  for  a  reargumcnt  must  be  denied. 

All  concur  except  Johnson,  J.,  not  sitting.  Motion  denied. 


PARKER  v.  BAXTER. 
New  York  Court  of  Appeals,  Mat  21,  1881,  November  22,  1881. 

[Reported  in  86  Neiv  York,  586.] 

Tins  action  was  brought  by  plaintiffs,  who  composed  the  firm  of 
Parker  &  Rowland,  against  the  members  of  the  firm  of  Archibald 
Baxter  &  Co.,  and  the  members  of  the  firm  of  Brown  Brothers  &  Co., 
to  determine  who  was  entitled  to  the  proceeds  of  a  quantity  of  corn  in 
the  hands  of  Brown  Brothers  &  Co.  The  corn  in  question  was  sold 
and  delivered  by  plaintiffs  to  Baxter  &  Co. ;  plaintiffs  claimed  to  be 
entitled  to  retake  it.  upon  the  ground  that  the  delivery  was  obtained  by 
fraud,  and  that  such  delivery  was  conditional.  Brown  Brothers  &  Co. 
claimed  as  bona  fide  pledgees  of  the  corn,  they  alleging  that  they  pur- 
chased a  bill  of  exchange  drawn  by  Baxter  &  Co.,  for  which  the  corn 
was  security,  in  good  faith  and  in  reliance  upon  the  bills  of  lading  of 
the  corn,  and  upon  an  agreement  between  Baxter  &  Co.  and  the  Bant 


468  PARKER   V.   BAXTER.  [CHAP.  IV. 

of  Liverpool,  the  drawee  of  the  bill,  by  which  the  drawers  were  author- 
ized to  draw  against  shipments  of  grain,  the  bills  of  lading  whereof  to 
be  sent  direct  to  the  bank  by  the  drawers,  witli  the  letter  of  advice  of 
the  drawing  of  the  bill.  The  agreement  being  indicated  on  the  face  of 
the  bills  by  the  words  "as  advised."  By  agreement  between  plaintiff's 
linn  and  Brown  Brothers  &  Co.,  the  corn  was  sold  and  the  proceeds 
were  held  by  the  latter,  subject  to  the  decision  of  this  action,  which  was 
commenced  in  pursuance  of  said  agreement. 

J/.  W.  Divine,  for  appellants. 

Clarkson  JSf.  Potter,  for  respondents. 

Bai'allo,  J.  Upon  the  question  whether  the  delivery  of  the  corn  to 
A.  Baxter  &  Co.  was  obtained  by  fraud,  or  with  the  design  not  to  pay 
for  it,  the  testimony  was  conflicting,  and  the  finding  of  the  referee  is 
conclusive  on  this  appeal. 

The  remaining  questions  are,  first,  whether  the  uncontroverted  testi- 
mony, or  the  specific  facts  found,  so  clearly  establish  a  conditional 
delivery,  that  the  referee's  conclusion  that,  by  the  delivery  of  the  ship's 
receipts  for  the  corn,  the  plaintiffs  waived  the  condition  in  the  terms  of 
sale,  and  the  title  to  the  corn  passed  absolutely  to  Baxter  &  Co.,  was 
erroneous;  and  secondly,  whether  the  finding  that  the  defendants, 
Brown  Brothers  &  Co.,  purchased  the  bill  of  exchange  for  which  the 
corn  was  security,  in  good  faith,  for  full  value  and  in  reliance  upon  the 
arrangement  with  the  Bank  of  Liverpool  and  upon  the  security  of  the 
bills  of  lading  of  the  corn,  was  so  totally  unsupported  by  evidence  as  to 
constitute  legal  error. 

A  determination  of  either  of  these  questions  adversely  to  the  appel- 
lants leads  to  an  affirmance  of  the  judgment ;  for,  even  if  the  delivery 
was  conditional,  so  that  the  title  did  not  pass  as  between  the  plaintiffs 
and  Baxter  &  Co.,  they  could,  nevertheless,  give  a  good  title  to  a  bona 
fide  purchaser  or  pledgee.  Smith  v.  Lynes,  5  N.  Y.  41  ;  Comer  v. 
Cunningham,  77  id.  391,  396.  And  it  is  equally  plain  that  if  the 
delivery  was  absolute  and  the  title  passed  to  Baxter  &  Co.,  the  plaintiffs 
parted  with  all  right  to  reclaim  the  goods  or  their  proceeds,  and  could 
only  look  to  Baxter  &  Co.  for  the  price. 

[The  court,  after  an  examination  of  the  facts,  held  that  the  referee's  con- 
clusion that  the  condition  was  waived  might  be  supported,  and  added  :] 

This  view  is  sufficient  to  dispose  of  the  case  without  deciding  the 
question  whether  Brown  Brothers  &  Co.  stand  in  the  position  of  bona 
fide  pledgees  of  the  corn.  The  principal  points  made  by  the  appellants 
on  that  branch  of  the  case  are  that  Brown  Brothers  &  Co.  did  not  buy 
the  bill  of  exchange  drawn  by  Baxter  &  Co.  upon  the  Bank  of  Liverpool, 
for  which  the  bill  of  lading  of  the  corn  was  pledged  as  security,  upon 
the  faith  of  that  bill  of  lading,  or  of  the  ship's  receipts  which  had  been 
delivered  by  the  plaintiffs  to  Baxter  &  Co.,  none  of  those  documents 
having  been  exhibited  to  Brown  Brothers  &  Co.,  and  they  not  having 
even  been  informed  what  particular  merchandise  was  pledged  to  the 
bank  for  the  bill.     But  the  case  shows  that  the  form  of  the  bill,  in  con- 


SECT.  I.]  HUBD   V.    BICKFORD.  4G9 

nection  with  the  established  course  of  dealing  between  Baxter  &  Com- 
pany and  Brown  Brothers  &.  Company,  plainly  indicated  that  the  bill 
was  drawn  against  a  shipment  of  merchandise,  and  constituted  a  repre- 
sentation to  that  effect,  and  the  referee  finds  that  Brown  Brothers  & 
Company  purchased  the  bill  in  reliance  upon  such  shipment.  If  no 
shipment  had  been,  in  fact,  made,  and  the  property,  or  the  legal  evi- 
dences of  title  thereto,  had  not,  at  the  time  of  the  purchase  of  the  bill 
by  Brown  Brothers  &  Co.,  been  obtained  from  the  plaintiff,  the  case 
would  have  been  within  Barnard  v.  Campbell  (55  N.  Y.  45G,  and  58  i<1. 
73),  and  a  subsequent  conditional  delivery  of  the  property  to  Baxter  & 
Co.  would  not  have  availed  the  holders  of  the  bill.  As  is  said  in 
Barnard  v.  Campbell  (55  N.  Y.  4G4),  the  purchasers  of  the  bill  would, 
under  the  circumstances,  have  parted  with  the  consideration  upon  the 
assertion  of  a  right  by  Baxter  &  Co.,  for  which  the  plaintiffs  were  in 
no  way  responsible.  But  the  distinction  between  that  case  and  the 
present  is,  that  here,  at  the  time  Baxter  &  Co.  represented  that  they 
had  shipped  the  property,  they  had  in  fact  shipped  it,  and  the  plaintiffs 
had  clothed  them  with  the  indicia  of  title,  and  although  they  did  not 
actually  exhibit  these  indicia  to  Brown  Brothers  &  Co.,  yet  they  repre- 
sented to  them  in  substance  that  they  had  the  property  and  had  shipped 
it,  and  the  plaintiffs  had  enabled  them  to  make  that  representation 
truly.  It  cannot,  therefore,  be  said  that  Brown  Brothers  &  Co.  trusted 
to  an  assertion  of  title  for  which  the  plaintiffs  were  in  no  wa}-  responsi- 
ble. If  the  property  had  not  been  delivered  to  Baxter  &  Co.,  they  could 
not,  without  making  a  false  representation,  have  sold  exchange  against 
it,  and  it  cannot  be  assumed  that  they  would  have  done  so.  There  is 
strong  ground  for  sustaining  the  claim  of  Brown  Brothers  &  Co.,  as 
bona  fide  pledgees,  but  the  disposition  made  of  the  first  branch  of  the 
case  renders  it  unnecessary  to  pass  finally  upon  this  question. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur.  Judgment  affirmed.1 


WAYLAND   IIURD  v.  FRANK  A.  BICKFORD. 

Supreme  Judicial  Court  of  Maine,  Dkcember  19,  1892, 

[Reported  in  85  Maine,  217.] 

Haskell,  J.  Trover  for  a  horse  and  sleigh.  One  Gross  procured 
them  from  the  plaintiff  by  means  of  fraud,  being  a  debtor  of  the  defend- 
ant; afterwards,  Gross  paid  his  debt  with  his  own  promissory  note  on 

1  "A  purchaser  cannot  be  protected  against  the  title  of  the  true  owner  in  a  case  where 
the  vendor  had  fraudulently  obtained  his  possession  ami  without  the  knowledge  <t 
consent  of  the  owner,  although  previous  to  such  possession  lie  had,  by  false  and  fraudu- 
lent  representations,  induced  the  owner  to  enter  into  a  contract  for  the  sale  of  the 

g Is.    Dean  v.  Yates,  22  Ohio  St. 388 ;  Hamet  v.  Letcher,  37  Ohio  St.  356."    Frank  v. 

Ingalls,  41  ( >hio  St.  560,  564. 


470  HUKD   V.    BICKFORD.  [CHAP.  IV. 

time.  Before  the  note  became  due,  he  sold  the  horse  to  the  defendant, 
who  was  ignorant  of  the  fraud,  in  payment  of  the  note.  No  defence  is 
shown  as  to  the  sleigh,  but  exception  is  taken  to  the  instruction  that, 
if  the  purchase  by  Gross  was  fraudulent,  the  defendant  would  not  be  an 
innocent  purchaser  of  the  horse,  and  could  not  hold  title  to  it,  although 
he  was  ignorant  of  the  fraudulent  title  of  Gross,  his  vendor. 

The  horse  was  used  to  pay  a  pre-existing  debt  of  Gross.  The  pa}'- 
ment  of  that  debt  by  his  own  note  after  he  purchased  the  horse  did  not 
change  the  relation  of  the  defendant  to  him,  from  prior  to  subsequent 
creditor.  The  same  debt  existed  all  the  time.  The  note  was  but  a 
new  evidence  of  it.  The  time  of  payment  may  have  been  extended, 
but  no  new  debt  was  created,  no  new  credit  given  ;  simply  further 
credit  for  the  payment  of   an  old  debt. 

The  doctrine  in  favor  of  innocent  purchasers  is,  that  they  have  a 
right  to  rely  upon  the  apparent  title  of  their  debtors  to  chattels  in  their 
possession,  and  deal  with  them  as  if  the  property  were  really  their  own. 
So  it  was  held  in  Gilbert  v.  Hudson,  4  Maine,  345,  that  chattels  fraud- 
ulently purchased  by  a  debtor,  might  be  held  on  attachment,  by  his 
creditor,  to  the  extent  of  an  indebtedness  contracted  between  them 
subsequent  to  the  fraudulent  purchase,  but  not  for  a  debt  contracted 
prior  to  that  time.  Gilbert  v.  Hudson;  Buffington  v.  Gerrish,  15 
Mass.  156.  This  distinction  between  the  rights  of  prior  and  subse- 
quent creditors  does  not  seem  to  have  been  always  recognized.  Jordan 
v.  Parker,  56  Maine,  557  ;  Wiggin  v.  Day,  9  Gray,  97  ;  Atwood  v. 
Dearborn,  1  Allen,  483  ;  Thaxter  v.  Foster,  153  Mass.  151  ;  Donaldson 
v.  Farwell,  93  U.  S.  631.  But  property  so  purchased,  and  sold  for  a 
valuable  consideration  to  a  bona  fide  purchaser  not  conusant  of  the 
fraud,  cannot  be  reclaimed.  Trott  v.  Warren,  11  Maine,  227  ;  Neal 
v.  Williams,  18  Maine,  391  ;  Sparrow  v.  Chesley,  19  Maine,  79  ;  Tour- 
tellott  v.  Pollard,  74  Maine,  418. 

The  discharge  of  an  antecedent  debt  has  alwa}s  been  held  in  our 
State  a  valuable  consideration  for  the  transfer  of  negotiable  paper  not 
due,  so  as  to  shut  out  equitable  defences.  Homes  v.  Smith,  16  Maine, 
177;  Norton  v.  White,  20  Maine,  175  ;  Railroad  v.  Bank,  102  U.  S.  14. 
In  many  jurisdictions,  such  transfer,  in  good  faith,  as  security  merely, 
has  also  been  held  to  so  operate.  Goodwin  v.  Massachusetts  Loan  Co. 
152  Mass.  199  ;  Swift  v.  Tyson,  16  Pet.  1  ;  Railroad  v.  Bank,  102  U.  S. 
14.  Our  decisions  are  to  the  contrary.  Smith  v.  Bibber,  82  Maine,  34. 
Does  the  same  rule  apply  to  the  sale  or  pledge  of  chattels?  In  Titcomb 
y.  Wood,  38  Maine,  561,  the  court  declares  (hat  it  does  not ;  but  suggests 
:i  quaere,  whether  it  should  not,  and  decides  the  case  upon  a  doctrine 
quite  as  questionable,  viz.,  that  the  discharge  of  a  thief  from  liability 
l')i-  things  stolen  is  a  present  consideration,  and  not  equivalent  to  the 
payment  of  an  antecedent  debt. 

The  case  of  Lee  v.  Kimball,  45  Maine,  172,  cited  by  the  defendant, 
upon  casual  reading,  might  seem  an  authority  in  the  defendant's  favor, 
and  it  has  been  sometimes  cited  as  such  ;  but,  on  examination,  it  will 


SBCT.  I.]  HUBD  v.   BICKFuliD.  471 

be  found  not  to  be.  A  cargo  of  coal,  purchased  to  arrive,  was  sold  by 
indorsement  of  the  bill  of  hiding  in  payment  of  the  consignee's  debt. 
The  consignor  attempted  to  exercise  his  right  of  stoppage  in  transitu, 
and  the  court  held  he  could  not,  remarking  that,  as  a  pre-existing  debt 
is  held  a  valuable  consideration  in  the  transfer  of  negotiable  paper,  on 
principle,  it  would  so  operate  in  the  sale  of  the  cargo.  That  may  be 
so  ,  but  the  consignor  did  not  hold  the  same  relation  to  the  cargo  that 
a  vendor  does  to  merchandise,  sold  by  reason  of  frauds  practised  upon 
him  by  the  vendee.  In  such  case,  the  title  passes  subject  to  the  ven- 
dor's right  of  rescission,  that,  once  exercised,  revests  the  title  in 
him.  Such  sale  is  not  void,  but  only  voidable.  The  consignor  sold  his 
cargo,  without  fraud  practised  upon  him.  His  sale,  once  made,  irrevo- 
cably passed  the  title  to  the  consignee.  The  sale  was  neither  void,  nor 
voidable,  and  therefore  he  could  transfer  the  cargo  to  a  bona  fide  pur- 
chaser by  indorsement  and  delivery  of  the  bill  of  lading  as  effectually 
as  by  an  actual  delivery  of  the  cargo.  The  delivery  of  the  muniment 
of  title  was  a  deliveiy  of  the  property  and  worked  an  executed  sale, 
whereby  the  right  of  stoppage  became  barred.  Leask  v.  Scott,  2  Q.  B. 
371!  ;  Clementson  v.  G.  T.  Railway,  42  Up.  Can.  Q.  B.  273. 

It  should  be  noticed  that  a  merchant,  by  the  exercise  of  stoppage 
in  transitu,  never  regains  title  to  the  property  sold,  but  only  the  pos- 
session, that  he  ma}'  enforce  a  lien  for  the  unpaid  purchase  money. 
The  title  all  the  while  remains  in  the  vendee.  If  the  vendor  converts 
the  property,  the  vendee  can  maintain  trover  for  it;  and  the  value  in 
excess  of  the  price  agreed  to  be  paid  will  be  the  measure  of  damages. 
It  is  a  proper  subject  of  equity  jurisdiction,  where  the  vendor's  lien  can 
best  be  enforced.  Phelps  v.  Comber,  29  Ch.  D.  821  ;  Wentworth  v. 
Outhwaite,  10  M.  &  W.  43G  ;  Valpy  v.  Oakeley,  16  Q.  B.941  ;  Griffiths 
v.  Perry,  1  E.  &  E.  680  ;  Sehotsmans  v.  Lancashire  Railway,  2  L.  R. 
Ch.  332  ;  Ludlow  v.  Bowne,  1  Johns.  15  ;  Babcock  v.  Bonnell,  80  N.  Y. 
244  ;  Stanton  v.  Eager,  16  Pick.  467  ;  Mohr  v.  Railroad,  106  Mass.  67  ; 
Newhall  v.  Vargas,  15  Maine,  314. 

The  right  of  a  vendee  depends  upon  whether  the  re-sale  was  made 
to  a  purchaser,  ignorant  of  the  fraud,  and  for  a  valuable  consideration. 
Tourtellott  v.  Pollard,  supra.  And  a  valuable  consideration,  in  such 
cases,  means  something  more  than  the  discharge  of  a  debt  that  revives, 
when  the  consideration  for  its  discharge  fails.  It  means  the  parting 
with  some  value  that  cannot  be  actually  restored  by  operation  of  law, 
leaving  the  purchaser  in  a  changed  condition,  so  that  he  ma}-  lose  some- 
thing beside  his  bargain.  Barnard  v.  Campbell,  58  N.  Y.  73  ;  Stevens 
v.  Brennan,  79  N.  Y.  258  ;  Hyde  v.  Ellery,  18  Md.  496,  501  ;  McGraw 
v.  Henry,  83  Mich.  442  ;  George  v.  Kimball.  24  Pick.  234  240.  The 
same  rule  applies  to  chattels  pledged.  Goodwin  v.  Massachusetts 
Loan  Co..  supra. 

True,  the  discharge  of  an  antecedent  debt,  in  one  sense,  is  a  valuable 
consideration  ;  but,  if  the  title  of  the  vendee  fails,  the  discharge  of  his 
debt  fails  also,  and  he  has  lost  nothing  by  the  transaction.     It  is  said 


472  HUKD   V.    BICKFORD.  [CHAP.  IV. 

that  the  vendor  might  pay  his  debt,  and  the  vendee  purchase  the  prop- 
erty with  the  proceeds.  That  is  true,  if  the  vendor  have  the  means  to 
do  so,  but  all  vendors  are  not  solvent ;  if  they  were,  there  would  be  no 
occasion  of  reclaiming  property  fraudulently  purchased  by  them,  no 
occasion  to  rescind  the  sale.  Other  remedies  would  afford  adequate 
redress.  Or,  if  the  property  be  reclaimed  after  they  had  sold  it  in 
payment  of  their  existing  debts,  those  debts  could  be  easily  collected, 
and  no  one  would  suffer  from  the  transaction  ;  whereas,  if,  perchance, 
they  are  insolvent  and  can,  by  fraud,  purchase  property,  and  apply  it 
to  their  old  debts,  so  as  to  leave  their  vendors  without  the  power  of 
reclaiming  it,  they,  by  defrauding  one  man,  can  thereby  pay  the  debts 
of  another,  manifestly  to  the  shame  of  honest  dealing  and  even  and 
exact  justice  among  men.  The  authorities  sustain  the  ruling  at  nisi 
prius.  Exceptions  overruled. 

Peters,  C.  J.,  Virgin,  Libbey,  Foster,  and  Whitehouse,  JJ., 
concurred.1 

1  «'  In  this  Commonwealth,  it  is  held  that  taking  a  negotiable  promissory  note  before 
maturity  as  security  for  a  pre-existing  debt,  is  a  taking  for  value,  and  that  any  equities 
which  may  exist  between  the  maker  and  the  person  from  whom  it  is  taken  cannot  be 
set  up  against  such  a  holder,  if  he  took  the  note  in  good  faith,  and  without  knowledge 
of  these  equities.  In  this  respect,  the  law  here  differs  from  that  of  New  York  and  of 
some  other  States.  Blanchard  v.  Stevens,  3  Cush.  162 ;  Stoddard  v.  Kimball,  6  Cash. 
469  ;  Culver  v.  Benedict,  13  Gray,  7  ;  Le  Breton  v.  Peirce,  2  Allen,  8  ;  Fisher  v.  Fisher, 
98  Mass.  303.  See  Ives  v.  Farmers'  Bank,  2  Allen,  236 ;  Railroad  Co.  c.  National 
Bank,  102  U.  S.  14;  Bank  of  the  Republic  v.  Carrington,  5  R.  I.  515;  Currie  w.  Misa, 
L.  K.  10  Ex.  153,  and  1  App.  Cas.  554.  Whether  a  similar  rule  applies  to  a  pledge  of 
chattels  by  a  vendee  as  security  for  a  pre-existing  debt  when  the  original  vendor 
attempts  to  rescind  the  sale  for  fraud,  does  not  appear  to  be  clearly  established.  It 
seems  to  be  settled  in  the  case  of  chattels,  that  an  attaching  creditor,  or  an  assignee 
in  insolvency  or  bankruptcy,  is  not  a  purchaser  for  value  within  the  meaning  of  the 
rule,  and  this  is  probably  true  of  an  assignee  for  creditors  under  an  assignment  exe- 
cuted by  the  debtor.  Buffington  v.  Gerrish,  15  Mass.  156;  Clark  v.  Flint,  22  Tick. 
231  ;  Bussing  v.  Rice,  2  Cush.  48;  Wiggin  v.  Day,  9  Gray,  97  ;  Donaldson  v.  Farwell, 
93  F.  S.  631. 

"  Whatever  may  be  the  law  in  the  case  of  a  transfer  of  chattels  in  payment  of  a  pre- 
existing debt,  when  the  debt  is  thereby  discharged,  we  think  that  by  the  weight  of 
authority  a  pledging  of  chattels  as  security  for  a  pre-existing  debt,  when  there  is  no 
present  consideration  whatever  for  the  pledge,  does  not  constitute  the  pledgee  a 
holder  for  value,  within  the  meaning  of  the  rule  we  are  considering,  and  that  the 
ruling  of  the  master  is  correct.  The  cases  are  largely  collected  in  the  notes  to  2  Pom. 
K.j.  Jur.  §  749.  See  also  Loeb  v.  Peters,  63  Ala.  243  ;  Wert  v.  Naylor,  93  Ind.  431  ; 
Sleeper  v.  Davis,  64  X.  11.59;  Linnard's  Appeal  (Pa.),  8  Atl.  Rep.  340;  Merchants' 
[ns  I  !o.  v.  Abbott,  131  Mass.  397,  400;  Lesassier  v.  The  Southwestern,  2  Woods,  35  ; 
Currie  v.  Misa,  L  R.  10  Ex.  153;  Lcask  v.  Scott,  2  Q.  B.  1).  376 ;  Rodger  v.  Comptoir 
d'Escompte  de  Paris,  L.  II.  2  P.  C  393  ;  Chartered  Bank  of  India  v.  Henderson,  L.  R. 
5  1'.  C.  501."     Goodwin  v.  Mass.  Loan  &  Trust  Co.,  152  Mass.  189,  199. 


SECT.  I.J  VAN   DUZOK  V.   ALLEN.  473 


VAN   DUZOR  v.  G.   H.   ALLEN. 

Illinois  Supreme  Court,  September  Term,  1878. 

[Reported  in  90  Illinois,  499.] 

Mr.  Justice  Walker  delivered  the  opinion  of  the  Court:  — 

It  appears  that  one  Gaston  purchased  of  Van  Duzor  a  threshing- 
machine,  but  they  seem  to  disagree  as  to  the  terms  of  purchase.  Van 
Duzor  claims  Gaston  was  to  give  notes,  with  certain  persons  agreed 
upon  as  sureties.  Gastom  claims  he  was  to  give  his  notes  and  a  chat- 
tel mortgage  on  the  machine.  Neither  notes  nor  security  of  an}-  kind 
was  given.  Van  Duzor  gave  Gaston  an  order  to  get  the  machine,  which 
was  then  at  Gilman.  He  went  for  and  got  it  and  brought  it  to  Clifton, 
where  they  resided,  and  left  it  over  night  in  the  street  in  front  of  Van 
Duzor's  office,  and  took  it  awav  next  morning  to  use  in  threshing  errain. 
Gaston  continued  to  so  use  it  from  about  the  7th  of  September  until  the 
middle  of  November,  1875.  Van  Duzor  seems  to  have  known  he  was 
so  using  the  machine,  having  seen  him  threshing  for  Hethinger,  and 
several  times  inquired  how  the  machine  worked. 

It  also  appears  that  one  Campbell  and  one  Kinson  worked  for  Gaston 
whilst  engaged  in  threshing.  Campbell  seems  to  have  furnished  four 
horses  to  work  on  the  machine  during  all  the  time  it  was  run,  for  which 
or  for  his  labor  Gaston  paid  him  nothing,  nor  did  he  pay  Kinson  anv- 
thing,  and  on  the  22d  day  of  November,  1875,  he  confessed  a  judgment 
in  favor  of  Campbell  for  $184,  for  his  labor  and  the  use  of  horses,  and 
on  the  same  day  he  confessed  a  judgment  before  the  same  justice  of  the 
peace,  in  favor  of  Kinson  for  857  for  his  labor,  and  they  both  swore  out 
executions  and  placed  them  in  the  hands  of  a  constable,  who  levied  them 
on  the  machine,  on  the  23d  of  the  month,  and  Van  Duzor  brought  an 
action  of  replevin  to  recover  the  thresher,  and  on  the  2i)th,  it  was.  by 
virtue  of  the  writ  of  replevin,  taken  by  the  sheriff  from  the  constable. 

Among  other  pleas,  the  defendant  justified  under  these  executions,  and 
claimed  the  right  to  hold  the  property  under  the  levies  thereunder.  A 
trial  was  had,  resulting  in  favor  of  defendant,  and  that  the  property  was 
subject  to  levy  under  the  executions.  A  motion  for  a  new  trial  was 
overruled  and  judgment  entered  on  the  verdict,  and  plaintiff  appeals 
and  asks  a  reversal. 

It  clearly  appears,  from  the  evidence,  that  as  between  appellant  and 
Gaston,  the  trade  was  not  so  far  executed  as  to  pass  the  title  to  the 
property  to  the  latter.  As  between  them,  appellant  could,  do  doubt, 
have  maintained  replevin  for  its  recovery.  But  the  question  is  pre- 
sented, whether  or  not  there  was  such  a  sale  and  delivery  as  to  render 
the  property  liable  to  levy  and  sale  on  execution  against  Gaston  :  — 
whether  it  was  not  such  a  sale  and  delivery  as  passed  the  title  to  the 
purchaser  as  to  creditors  or  purchasers  without  notice. 


474  VAN    DUZOR   V.    ALLEN.  [CHAP.  IV. 

Iii  the  case  of  Brundage  v.  Camp,  21  111.  330,  there  was  a  full  and 
careful  review  of  the  authorities,  both  English  and  American,  and  the  rule 
announced,  that  where  a  party  sells  goods  to  another  and  delivers  them 
to  the  purchaser,  although  it  is  agreed  the  purchaser  shall  give  a  note 
with  security  at  a  future  da}',  a  sale  by  the  purchaser  to  another  without 
notice  will  pass  the  title  to  the  latter,  and  he  will  hold  the  goods  as 
against  the  first  vendor.  It  was  there  said,  as  the  conclusion  reached 
after  the  review  of  authorities,  that  the  first  vendor  having  trusted  his 
vendee  by  making  a  sale  and  delivery  of  the  mules  to  him,  and  having 
put  it  in  his  power  to  defraud  others  by  a  sale  of  them,  an  innocent 
purchaser  of  the  property  for  a  valuable  consideration,  without  notice, 
ought  to  be  protected,  and  the  cases  of  Morris  v.  Grover,  2  Scam.  528  ; 
Jennings  v.  Gage,  13  111.  610  ;  Murch  v.  Wright,  46  id.  487  ;  McCor- 
mick  v.  Madden,  37  id.  370  ;  and  Michigan  Central  Railroad  Company 
v.  Phillips,  60  id.  190,  and  other  cases  in  this  court,  all  recognized  the 
same  doctrine. 

A  bona  fide  creditor,  who,  under  a  judgment  and  execution,  acquires 
a  lien  on  property  thus  situated,  occupies  the  same  position  in  all  re- 
spects as  does  a  bona  fide  purchaser.  Where  the  apparent  owner  of 
property  thus  acquired  has  the  indicia  of  ownership  and  may  sell  and 
pass  a  good  title  to  a  purchaser,  without  notice,  a  bona  fide  creditor 
may  seize  the  property  on  execution  and  sell  it  thereunder  and  pass  the 
title,  not  only  against  the  apparent,  but  also  the  real  owner.  The 
creditor  and  purchaser  stand  on  the  same  footing,  and  each  will  be 
equally  protected.1 

The  question  then  remains,  whether,  on  the  sale  of  this  machine, 
appellant  delivered  possession  or  has  done  acts  from  which  his  con- 
sent for  Gaston  to  take  possession,  under  the  contract,  can  be  fairly 
in I'ci  red.  A  formal  delivery  need  not  be  proved.  It  was  unnecessary 
that  appellant  should  go  with  Gaston  to  the  property  and  formally  say 
he  delivered  possession,  but  his  consent  that  he  should  take  it  into  his 
possession  would  be  all  that  is  required.  Here,  after  the  terms  of  the 
sale,  whatever  they  were,  had  been  agreed  upon,  appellant  gave  a 
written  order  on  the  person  in  Gilman  who  had  the  machine,  to  deliver 
it  to  Gaston,  and  under  that  order  Gaston  received  it  into  possession, 
and  removed  it  to  and  placed  it  in  the  street  in  front  of  appellant's 
office,  in  Grafton.  Here  was  an  actual  delivery  of  the  property  into 
the  possession  of  Gaston  after  the  terms  of  sale  were  agreed  upon, 
and  the  purchaser  the  next  morning  took  the  property  and  commenced 
using,  and  continued  to  use  it  for  about  two  and  a  half  months  as 
big  own. 

When  the  purchaser  left  the  machine  in  the  street  in  front  of  appel- 

1  An  attaching  creditor  is  generally  held  to  acquire  no  greater  rights  in  attached 

property  than  the  debtor  himself  had.    Thompson  v.  Rose,  L6  Conn.  71  ;  Oswego  Starch 

ry  v.  Lendrum,  57  [a.  573  ;  Jordan  v.  Parker,  56  Me.  557  ;  Tan-  v.  Smith,  08  Me. 

97  ;  Atwood  v.  Dearborn,  1  Allen,  483;  Bradley  v.  Obear,  10N.H.477;  Fitzsimmons 

v.  Josb'n,  _'i  \'t.  12'.). 


SECT.  I.]  BODENHAJUMEB   V.  NEWSOM.  475 

hint's  office,  there  is  no  evidence  that  it  was  delivered  to  him,  or  that  he 
was  then  aware  of  the  fact,  or  that  lie  or  Gaston  intended  it  as  a  de- 
livery to  appellant.  It  then  appears  he  delivered  the  property  to  Gas- 
ton, under  the  side,  and  it  was  never  redelivered  to  appellant.  The 
evidence  shows  that  he  knew  that  Gaston  was  threshing  grain  with  it, 
and  that  he  received  a  payment  on  it.  He  took  no  steps  to  recover  the 
machine.  He  seems  not  even  to  have  demanded  its  return.  We  regard 
the  evidence  as  abundantly  sufficient  to  warrant  the  jury  in  finding  that 
there  was  a  sale  and  delivery,  and  we  have  seen  that  the  agreement  or 
understanding  that  Gaston  was  to  give  notes  and  security  could  not 
affect  innocent  purchasers  or  bona  fide  creditors. 

Here,  these  creditors  seem  to  have  held  just  debts  against  Gaston, 
and  they  obtained  judgments  therefor,  and  obtained  executions  and  had 
them  levied  upon  the  property  whilst  he  was  in  possession,  and  they 
both  swore  they  had  no  notice  of  the  terms  of  his  purchase,  or  that  he 
was  not  the  owner,  and  the  jury  seem  to  have  believed  them,  and  it 
was  their  province  to  pass  upon  and  give  such  weight  to  the  evidence 
as  they  believed  it  deserved.  Judgment  affirmed.1 


F.   B.  BODENHAMMER    v.    WILLIAM   NEWSOM. 
North  Carolina  Supreme  Court,  December  Term,   1857. 

[Reported  in  5  Jones  (Laic),  107.] 

Action  of  trover  tried  before  Manly,  J.,  at  the  last  fall  term  of 
Forsyth  Superior  Court. 

The  plaintiff  declared  for  the  conversion  of  a  horse. 

A  witness,  by  the  name  of  Reich,  stated  that  the  horse  in  contro- 
versy had  belonged  to  him,  and  being  indebted  to  one  Led  ford  in  the 
sum  of  $100,  with  the  plaintiff  as  surety,  he  agreed  to  sell  the  horse  to 
plaintiff,  and  work  out  the  residue  of  the  S100,  upou  condition  that 
plaintiff  would  assume,  as  principal  obligor,  the  payment  of  said  debt, 
and  thereupon  the  horse  was  claimed  and  used  as  the  plaintiff's.  He 
further  swore  that  he  was  himself  in  the  service  of  the  plaintiff,  and 
wishing  to  visit  a  relation  at  a  distance  of  a  few  miles,  he  borrowed 
the  horse  to  perform  the  trip,  promising  and  intending  to  return  in  the 
course  of  a  day  or  two.  While  gone  upon  this  visit,  he  swapped  the 
horse  away  to  the  defendant  without  any  authority  from  the  plain- 
tiff, and  when  he  returned  with  the  horse  he  got  from  the  defendant, 
the  plaintiff  refused  to  accept  him  in  lieu  of  the  other.  He  swore  the 
horse  was  worth  sixty-five  dollars,  but  no  price  had  been  agreed  upon 
between  himself  and  plaintiff,  the  price  being  left  to  be  determined  by 
the  sum  which  the  plaintiff  might  realize  in  his  sale.     A  demand  was 

1  A  portion  of  the  opinion  is  omitted. 


476  BODENHAMMER   V.    NEWSOM.  [CHAP.  IV. 

made   of    the   defendant    a   few   days    after   the   swap,    which   was 
refused. 

The  defendant's  counsel,  among  other  things,  contended  that  it  was 
a  mere  pledge  of  the  property  to  secure  the  plaintiff  against  responsi- 
bility, and  the  thing  pledged  having  been  redelivered  to  the  person 
making  the  pledge,  he  had  a  right  to  sell  and  make  title. 

His  Honor,  upon  this  point,  instructed  the  jury  that  if  the  horse 
were  pledged  to  secure  Bodenhammer,  and  in  conformity  with  the 
pledge,  passed  into  Bodenhammer's  possession,  he  would  have  such  a 
property  in  the  animal  as  would  enable  him  to  maintain  the  action  of 
trover,  and  a  loan  of  the  animal  to  Reich  for  a  special  use,  under  the 
circumstances  stated  by  him,  would  uot  be  such  change  or  interruption 
of  possession  as  to  prevent  a  recover}7,  provided  the  pledge  and  pos- 
session were  bona  fide  in  Bodenhammer.     Defendant  excepted. 

Verdict  for  the  plaintiff.     Judgment  and  api^eal. 

McLean  and  Fowle,  for  the  plaintiff. 

3filler,  for  the  defendant. 

Battle,  J.  Among  the  instructions  given  by  his  Honor  to  the  jury 
was  the  following:  "  If  the  horse  were  pledged  to  secure  the  plaintiff, 
and,  in  conformity  with  that  pledge,  passed  into  the  plaintiff's  posses- 
sion, and  continued  in  his  possession,  he  would  have  such  a  property 
in  the  animal  as  would  enable  him  to  maintain  the  action  of  trover ; 
and  a  loan  of  the  animal  to  Reich  for  a  special  use,  under  the  circum- 
stances stated  by  him,  would  not  be  such  a  change  or  interruption  of 
possession  as  to  prevent  a  recovery,  provided  the  pledge  and  posses- 
sion were  bona  fide  in  the  plaintiff."  With  this  instruction  we  do  not 
agree,  and  we  think  it  is  opposed,  in  principle,  to  the  recent  case,  de- 
cided in  this  court,  of  Smith  v.  Sasser,  4  Jones,  43.  The  only  differ- 
ence between  the  facts  of  that  case  and  the  present,  is  the  length  of 
time  during  which  the  pawnor  had  the  article  in  possession,  after  a 
redelivery  by  the  pawnee,  before  he  sold  it.  But  that  cannot  make 
any  difference  in  the  rule  of  law  applicable  to  the  transaction.  By 
giving  up  the  possession  of  the  article  pawned,  the  pawnee  lost  his 
lien,  and  it  would  be  a  fraud  upon  an  innocent  purchaser  from  the 
pawnor,  if  the  pawnee  were  permitted  to  recover  the  pawn  from  him. 
In  the  case  of  Roberts  v.  Wyatt,  2  T.  R.  2G8,  it  was  made  a  question 
whether,  even  as  between  the  parties  themselves,  a  redelivery  of  the 
thing  pledged,  for  a  temporary  purpose  only,  would  not  prevent  the 
pawnee  from  recovering  it  back  from  the  pawnor,  after  the  purpose 
was  ful filled.  It  was,  indeed,  decided  that  the  pawnee  might  recover 
from  the  pawnor;  but  if  a  doubt  existed  in  such  a  case  as  that,  it 
would  hardly  be  pretended  that  a  recovery  would  be  allowed  from  one 
who  claimed  as  a  bona  fide  purchaser  from  the  pawnor.  See  Story  on 
Bailments,  sec.  299. 

The  judgment  must  be  reversed,  and  a  venire  de  novo  awarded 

Per  curiam.  Judgment  rerersed. 


SECT.  I.J  EX   PARTE   FITZ.      BE   BAWSOtf.  477 


Ex  parte   FITZ.     Re  RAW  SOX  et  al. 

United  States  District  Conn-,  for  the  District  of 

Massachusetts,  November,  1876. 

[Reported  in  2  Lowell,  5 J  9.] 

Lowell,  J.  The  petitioner  lent  money  to  Rawson  &  Hittinger,  and 
took  from  them  at  the  same  time  the  notes  of  Jacob  Hittinger,  not  a 
member  of  the  linn,  and  hills  of  sale  of  certain  Locomotive  engines,  then 
in  their  machine-shop  in  Cambridgeport,  as  additional  security.  Raw- 
son  &  Hittinger  have  become  bankrupt,  and  Jacob  Hittinger  has  paid 
the  debt;  and  the  petitioner,  acting  as  trustee  for  him,  asks  that  the 
engines  or  their  proceeds  be  now  applied  to  pay  the  debt.  Jacob  Hit- 
tinger has  become  a  party  to  the  petition,  and  submits  his  rights  to  the 
determination  of  the  court. 

It  was  argued  in  behalf  of  the  petitioner  that  the  bills  of  sale  were 
mortgages,  and  that  the  failure  to  record  them  would  not,  under  the 
circumstances  of  the  case,  be  fatal  to  the  title  of  the  mortgagee.  I  take 
it,  however,  to  be  clear  that,  by  the  law  of  Massachusetts,  as  of  the 
other  States,  the  bill  of  sale,  intended  for  security,  operated  as  a  pledge 
and  not  as  a  mortgage,  and  neither  required  nor  admitted  of  registration. 
Walker  v.  Staples,  5  Allen,  34;  Kimball  /■.  Ilildreth,  8  id.  167;  and, 
incidentally,  Newton  v.  Fay,  10  id.  505  ;  Drake  v.  White,  117  Mass.  10. 
As  a  general  rule,  the  pledgee  must  take  and  keep  possession  of  the 
chattels,  or  his  title  will  not  be  valid  against  the  assignee  in  bankruptcv. 
My  decision,  that  a  mortgagee  had  a  better  title  than  the  assignee  in 
some  cases,  though  he  neither  took  possession  nor  recorded  his  mort- 
gage, does  not  apply  to  pledges,  but  turned  on  the  words  of  a  statute, 
construed  with  the  aid  of  the  rule  of  the  common  law  of  Massachusetts 
that  the  possession  of  a  mortgagor  is  consistent  with  the  title  of  the 
mortgagee.  Still,  on  the  question  of  what  is  a  sufficient  taking  and 
keeping,  the  cases  arising  under  mortgages  are  in  point. 

I  understand  the  law  to  be  that  there  must  be  a  delivery  before  the 
pledgee's  lien  will  attach  ;  but  the  delivery  may  be  either  actual  or  con- 
structive. Meyerstein  o.  Barber,  L.  R.  2  C.  P.  38,  661  ;  4  H.  L.  317  ; 
Young  v.  Lambert,  L.  R.  3  P.  C.  142.  Then,  as  to  keeping  possession,' 
it  may  be  kept  by  an  agent,  and  that  agent  may  be  the  pledgor.  If  the  cir- 
cumstances make  out  a  good  reason  for  giving  the  custody  and  apparent 
control  to  the  pledgor,  there  may  not  even  be  evidence  of  fraud  ;  but, 
at  most,  his  possession  will  only  be  evidence  either  that  the  pledge  has 
been  abandoned,  or  that  the  transaction  is  covinous.  See  Sumner  v. 
Hamlet,  12  Pick.  76;  Macomber  v  Parker,  14  id.  497;  Hays  v.  Rid- 
dle, 1  Sandf.  248  ;  Way  v.  Davidson,  12  Gray,  465  ;  Cooper  v.  Ray,  4  7 
111.  53  ;  Martin  v.  Reid,  11  C.  B.  n.  s.  730  ;  Thayer  v.  Dwight,  104  Mass. 
254  ;  Thorndike  v.  Bath,  114  id.  116  ;  Weld  v.  Cutler,  2  Gray,  195. 
On  the  question  of  fact,  whether  possession  was  taken  and  kept, 


478  EX   PARTE    FITZ.      HE   RAWSON.  [CHAP.  IV. 

there  is,  unfortunately,  a  direct  contradiction  between  the  only  two 
witnesses  to  the  acts  done.  The  petitioner  testifies  that,  soon  after  the 
bills  of  sale  were  given,  he  went  to  the  shop  of  the  pledgors,  and  in 
presence  of  one  of  them,  Michael  Hittinger,  took  possession  of  every 
one  of  the  engines,  put  his  hand  upon  each,  and  told  Michael  Hittinger 
to  hold  them  as  his  agent,  and  that  if  any  of  them  were  sold  he  would 
give  an  order  for  the  delivery.  Michael  Hittinger  says  that  the  peti- 
tioner came  over  to  the  shop,  and  one  engine  was  pointed  out  to  him, 
but  he  did  nothing  about  taking  possession,  and  gave  no  orders.  Sup- 
posing, as  I  do,  that  the  witnesses  are  equally  veracious,  I  feel  bound 
to  give  greater  credit  to  the  evidence  of  the  petitioner ;  because  he 
cannot  be  mistaken,  and  Mr.  Hittinger  may  have  forgotten  the  circum- 
stances. The  petitioner  went  to  the  factory,  according  to  his  story,  with 
a  definite  purpose,  and  must  recollect  what  it  was,  and  what  he  did  in 
pursuance  of  it.  Both  stand  before  the  court  unimpeached,  and  with  no 
serious  bias,  because  the  debt  has  been  paid  to  Mr.  Fitz,  and  he  is  pro- 
ceeding for  the  benefit  of  a  surety  ;  and  Mr.  Hittinger,  on  his  part,  has 
assigned  all  his  title  by  his  petition  and  the  proceedings  in  bankruptcy. 
I  can  only  regret  that  the  parties  did  not  see  fit  to  submit  the  decision 
of  this  question  to  a  jury. 

Taking  it,  as  I  feel  bound  to  do,  that  Mr.  Fitz's  recollection  is  the 
more  accurate,  it  seems  to  me,  as  matter  of  law,  that  his  possession  was 
sufficient.  I  do  not  consider  that  a  pledgee  is  bound  to  remove  loco- 
motive engines,  and  put  them  into  his  house  or  into  a  warehouse.  He 
might  well  leave  them  with  the  pledgor,  to  be  finished,  or  even  to  be 
sold.  There  is  somewhat  more  danger  of  fraud  if  the  pledgor  himself 
is  intrusted  with  the  possession,  than  if  a  third  person  was  employed  ; 
but  there  is  no  difference  in  principle  between  the  appointment  of  Hit- 
tinger and  of  one  of  his  clerks.  It  comes  back  to  a  question  of  fraud 
or  good  faith.  Of  course,  it  is  well  understood  that  an  assignee  in 
bankruptcy  is  not  a  purchaser  without  notice.1 

It  is  argued  that  there  was  no  sufficient  designation  of  the  particular 
engines  pledged.  I  do  not  understand  the  evidence  to  be  undisputed  on 
this  point.  Mr.  Fitz  said  that  the  engines  mentioned  in  his  bill  of  sale 
could  be  easily  picked  out  from  the  others;  and  Mr.  Hittinger  again 
differed  from  him  on  this  point.  But  this  matter  is  set  at  rest  by  the 
evidence,  which  I  have  accepted  as  accurate,  that  each  engine  was  in 
fact  designated  and  pointed  out  when  Mr.  Fitz  went  over  to  the  shop 
and  took  possession,  which  was  long  before  the  bankruptcy. 

Petition  granted. 

Ji.  D.  Smith,  for  the  petitioner. 

T.  F.  Nutter,  for  the  assignee. 

1  Donaldson  v.  Farwell,  93  U.  S.  631  ;  Ratcliffe  v.  Sangston,  18  Md.  383;  Bussing 
>'.  Rice,  '-!  Cush.  48;  Farley  '■.  Lincoln,  51  N.  IT.  577 ;  Belding  >\  Franklaml,8  Lea,  67, 
-/.     Wickham  v.  Martin,  13  Gratt.427  ;  Oberdorfer  v.  Meyer,  88  Va.  384,  however, 
decide  that  a  trustee  for  creditors  is  a  purchaser  for  value.     See  ante,  p.  472,  note  1. 


SECT.  I.]  CUNDY    V.    LINDSAY.  479 


JAMES  CUNDY  and  T.  BEVIXGTON,  Appellants,  v.  THOMAS 

LINDSAY,  and  Others,  Rksfondents. 

In  the  House  of  Louds,  March  1-4,  1878. 

[Reported  in  3  Appeal  Cases,  459.] 

Appeal  from  a  decision  of  the  Court  of  Appeal,  which  had  reversed 
a  previous  decision  of  the  Queen's  Bench. 

In  1873,  one  Alfred  Blenkarn  hired  a  room  at  a  corner  house  in  Wood 
Street,  Cheapside  ;  it  had  two  side  windows  opening  into  Wood  Street, 
but  though  the  entrance  was  from  Little  Love  Lane  it  was  by  him  con- 
stantly described  as  37  Wood  Street,  Cheapside.  His  agreement  for 
this  room  was  signed  "Alfred  Blenkarn."'  The  now  respondents,  Messrs. 
Lindsay  &  Co.,  were  linen  manufacturers,  carrying  on  business  at  Bel- 
fast. In  the  latter  part  of  1873,  Blenkarn  wrote  to  the  plaintiffs  on  the 
subject  of  a  purchase  from  them  of  goods  of  their  manufacture,  —  chiefly 
cambric  handkerchiefs.  His  letters  were  written  as  from  "37  Wood 
Street,  Cheapside,"  where  he  pretended  to  have  a  warehouse,  but  in 
fact  occupied  only  a  room  on  the  top  floor,  and  that  room,  though  look- 
ing into  Wood  Street  on  one  side,  could  only  be  reached  from  the  en- 
trance in  5  Little  Love  Lane.  The  name  signed  to  these  letters  was 
always  signed  without  any  initial  as  representing  a  Christian  name,  and 
was,  besides,  so  written  as  to  appear  "Blenkiron  &  Co."  There  was 
a  highly  respectable  firm  of  W.  Blenkiron  &  Son,  carrying  on  business 
in  Wood  Street,— but  at  number  123  Wood  Street,"  and  not  at  37. 
Messrs.  Lindsay,  who  knew  the  respectability  of  Blenkiron  &  Son, 
though  not  the  number  of  the  house  where  they  carried  on  business, 
answered  the  letters,  and  sent  the  goods  addressed  to  "  Messrs.  Blen- 
kiron &  Co.,  37  Wood  Street,  Cheapside,"  where  they  were  taken  in 
at  once.  The  invoices  sent  with  the  goods  were  always  addressed  in 
the  same  way.  Blenkarn  sold  the  goods,  thus  fraudulently  obtained 
from  Messrs.  Lindsay,  to  different  persons,  and  among  the  rest  he  sold 
2.")0  dozen  of  cambric  handkerchiefs  to  the  Messrs.  Cundy,  who  were 
bona  fide  purchasers,  and  who  resold  them  in  the  ordinary  wav  of  their 
trade.  Payment  not  being  made,  an  action  was  commenced  in  the 
Mayor's  Court  of  London  by  Messrs.  Lindsay,  the  junior  partner  of 
which  firm.  Mr.  Thompson,  made  the  ordinary  affidavit  of  debt,  as 
against  Alfred  Blenkarn,  and  therein  named  Alfred  Blenkarn  as  the 
debtor.  Blenkarn's  fraud  was  soon  discovered,  and  he  was  prosecuted 
at  the  Central  Criminal  Court,  and  convicted  and  sentenced.  Messrs. 
Lindsay  then  brought  an  action  against  Messrs.  Cundy  as  for  unlawful 
conversion  of  the  handkerchiefs.  The  cause  was  tried  before  Mr.  Jus- 
tice Blackburn,  who  left  it  to  the  jury  to  consider  whether  Alfred  Blen- 
karn, witli  a  fraudulent  intent  to  induce  the  plaintiffs  to  give  him  the 
credit  belonging  to  the  good  character  of  Blenkiron  &  Son.  wrote  the 
letters,  and  by  fraud  induced  the  plaintiffs  to  send  the  goods  to  37 


480  CDNDY   V.    LINDSAY.  [CHAP.  IV. 

"Wood  Street,  —  were  the)'  the  same  goods  as  those  bought  by  the  de- 
fendants.—  and  did  the  plaintiffs  by  the  affidavit  of  debt  intend,  as  a 
matter  of  fact,  to  adopt  Alfred  Blenkarn  as  their  debtor.  The  first  and 
second  questions  were  answered  in  the  affirmative,  and  the  third  in  the 
negative.  A  verdict  was  taken  for  the  defendants,  with  leave  reserved 
to  move  to  enter  the  verdict  for  the  plaintiffs.  On  motion  accordingly, 
the  court,  after  argument,  ordered  the  ride  for  entering  judgment  for  the 
plaintiffs  to  be  discharged,  and  directed  judgment  to  be  entered  for  the 
defendants.  1  Q.  B.  D.  348.  On  appeal,  this  decision  was  reversed  and 
judgment  ordered  to  be  entered  for  the  plaintiffs,  Messrs.  Lindsa}'.  2  Q. 
B.  D.  96.     This  appeal  was  then  brought. 

The  Solicitor  General  {Sir  H.  S.  Giffard)  and  Mr.  Benjamin,  Q.  C. 
{Mr.  B.  Francis  Williams  was  with  them),  for  the  appellants. 

Mr.  Wills,  Q.  C,  and  Mr.  Fullarton,  for  the  respondents. 

The  Loud  Chancellor  (Lord  Cairns).  My  Lords,  you  have  in  this 
case  to  discharge  a  duty  which  is  always  a  disagreeable  one  for  an}' 
court,  namely,  to  determine  as  between  two  parties,  both  of  whom  are 
perfectly  innocent,  upon  which  of  the  two  the  consequences  of  a  fraud 
practised  upon  both  of  them  must  fall.  My  Lords,  in  discharging  that 
duty  your  Lordships  can  do  no  more  than  apply,  rigorously,  the  settled 
and  well-known  rules  of  law.  Now,  with  regard  to  the  title  to  personal 
property,  the  settled  and  well-known  rules  of  law  ma}',  I  take  it,  be 
thus  expressed  :  by  the  law  of  our  country  the  purchaser  of  a  chattel 
takes  the  chattel,  as  a  general  rule,  subject  to  what  may  turn  out  to  be 
certain  infirmities  in  the  title.  If  he  purchases  the  chattel  in  market 
overt,  he  obtains  a  title  which  is  good  against  all  the  world  ;  but  if  he 
does  not  purchase  the  chattel  in  market  overt,  and  if  it  turns  out  that 
the  chattel  has  been  found  by  the  person  who  professed  to  sell  it,  the 
purchaser  will  not  obtain  a  title  good  as  against  the  real  owner.  If  it 
turns  out  that  the  chattel  has  been  stolen  by  the  person  who  has  pro- 
fessed to  sell  it,  the  purchaser  will  not  obtain  a  title.  If  it  turns  out 
that  the  chattel  has  come  into  the  hands  of  the  person  who  professed  to 
sell  it,  by  a  tie  facto  contract,  that  is  to  say,  a  contract  which  has  pur- 
ported to  pass  the  property  to  him  from  the  owner  of  the  property,  there 
the  purchaser  will  obtain  a  good  title,  even  although  afterwards  it  should 
appear  that  there  were  circumstances  connected  with  that  contract, 
which  would  enable  the  original  owner  of  the  goods  to  reduce  it,  and  to 
set  it  aside,  because  these  circumstances  so  enabling  the  original  owner 
of  the  goods,  or  of  the  chattel,  to  reduce  the  contract  and  to  set  it  aside, 
will  not  be  allowed  to  interfere  with  a  title  for  valuable  consideration 
obtained  by  some  third  party  during  the  interval  while  the  contract 
remained   unreduced. 

My  Lords,  the  question,  therefore,  in  the  present  case,  as  your  Lord- 
ships will  observe,  really  becomes  the  very  short  and  simple  one  which 
I  ;iin  aboul  to  state.  Was  there  any  contract  which,  with  regard  to  the 
goods  in  question  in  this  case,  had  passed  the  property  in  the  goods 
from  the  Messrs.  Lindsay  to  Alfred  Blenkarn?     If  there  was  any  con- 


SECT.  I.]  CUNDY   V.    LINDSAY.  481 

tract  passing  that  property,  even  although,  as  I  have  said,  that  contract 
might  afterwards  be  open  to  a  process  of  reduction,  upon  the  ground  of 
fraud,  still,  in  the  mean  time,  Blenkarn  might  have  conveyed  a  good 
title  tor  valuable  consideration  to  the  present  appellants. 

Now,  my  Lords,  there  are  two  observations  heating  upon  the  solu- 
tion of  that  question  which  1  desire  to  make.  In  the  first  place,  if  the 
property  in  the  goods  in  question  passed,  it  could  only  pass  by  way  of 
contract;  there  is  nothing  else  which  could  have  passed  the  property. 
The  second  observation  is  this  :  your  Lordships  are  not  here  embar- 
rassed by  any  conflict  of  evidence,  or  any  evidence  whatever  as  to  con- 
versations or  as  to  acts  done  ;  the  whole  history  of  the  whole  transaction 
lies  upon  paper.  The  principal  parties  concerned,  the  respondents  and 
Blenkarn,  never  came  in  contact  personally,  —  everything  that  was  done 
was  done  by  writing.  What  has  to  be  judged  of,  and  what  the  jury  in 
the  present  case  had  to  judge  of,  was  merely  the  conclusion  to  be  de- 
rived from  that  writing,  as  applied  to  the  admitted  facts  of  the  case. 

Now,  my  Lords,  discharging  that  duty  and  answering  that  inquiry, 
what  the  jurors  have  found  is  in  substance  this :  it  is  not  necessary  to 
spell  out  the  words,  because  the  substance  of  it  is  beyond  all  doubt. 
They  have  found  that  by  the  form  of  the  signatures  to  the  letters  M'hich 
were  written  b}*  Blenkarn,  by  the  mode  in  which  his  letters  and  his  ap- 
plications to  the  respondents  were  made  out,  and  by  the  way  in  which 
he  left  uncorrected  the  mode  and  form  in  which,  in  turn,  he  was  ad- 
dressed by  the  respondents  ;  that  by  all  those  means  he  led.  and  intended 
to  lead,  the  respondents  to  believe,  and  they  did  believe,  that  the  person 
with  whom  thej-  were  communicating  was  not  Blenkarn,  the  dishonest 
and  irresponsible  man,  but  was  a  well  known  and  solvent  house  of 
Blenkiron  &  Son,  doing  business  in  the  same  street.  My  Lords,  those 
things  are  found  as  matters  of  fact,  and  they  are  placed  beyond  the 
range  of  dispute  and  controversy  in  the  case. 

If  that  is  so,  what  is  the  consequence  ?  It  is  that  Blenkarn  —  the 
dishonest  man,  as  I  call  him  —  was  acting  here  just  in  the  same  way  as 
if  he  had  forged  the  signature  of  Blenkiron  &  Son,  the  respectable  firm. 
to  the  applications  for  goods,  and  as  if,  when,  in  return,  the  goods  were 
forwarded  and  letters  were  sent,  accompanying  them,  he  had  intercepted 
the  goods  and  intercepted  the  letters,  and  had  taken  possession  of  the 
goods,  and  of  the  letters  which  were  addressed  to,  and  intended  for, 
not  himself,  but  the  firm  of  Blenkiron  &  Son.  Now,  my  Lords,  stating 
the  matter  shortly  in  that  way,  I  ask  the  question,  How  is  it  possibl  s 
to  imagine  that  in  that  state  of  things  any  contract  could  have  arisen 
between  the  respondents  and  Blenkarn,  the  dishonest  man?  Of  him 
they  knew  nothing,  and  of  him  they  never  thought.  With  him  they 
never  intended  to  deal.  Their  minds  never,  even  for  an  instant  of 
time,  rested  upon  him,  and  as  between  him  and  them  there  was  no  con- 
sensus of  mind  which  could  lead  to  any  agreement  or  any  contract 
whatever.  As  between  him  and  them  there  was  merely  the  one  side  to 
a  contract,  where,  in  order  to  produce  a  contract,  two  sides  would  be 

31 


482  RODLIFF   V.    DALLINGER.  [CHAP.  IV. 

required.  With  the  firm  of  Blenkiron  &  Son  of  course  there  was  no 
contract ;  for  as  to  them  the  matter  was  entirely  unknown,  and  there- 
fore the  pretence  of  a  contract  was  a  failure. 

The  result,  therefore,  my  Lords,  is  this,  that  your  Lordships  have  not 
here  to  deal  with  one  of  those  cases  in  which  there  is  de  facto  a  contract 
made  which  may  afterwards  be  impeached  and  set  aside,  on  the  ground 
of  fraud  ;  but  you  have  to  deal  with  a  case  which  ranges  itself  under  a 
completely  different  chapter  of  law,  the  case,  namely,  in  which  the  con- 
tract never  comes  into  existence.  My  Lords,  that  being  so,  it  is  idle 
to  talk  of  the  property  passing.  The  property  remained,  as  it  originally 
had  been,  the  property  of  the  respondents,  and  the  title  which  was  at- 
tempted to  be  given  to  the  appellants  was  a  title  which  could  not  be 
given  to  them. 

My  Lords,  I  therefore  move  your  Lordships  that  this  appeal  be  dis- 
missed with  costs,  and  the  judgment  of  the  Court  of  Appeal  affirmed.1 


ALVIN   RODLIFF  v.   FRANK   W.   DALLINGER. 

Supreme  Judicial  Court  of  Massachusetts,  November  10,  1885  — 
January  11,  1886. 

[Reported  in  141  Massa-husetts,  1.] 

Replevin  of  wool.  From  the  bill  of  exceptions  it  appeared  that  the 
plaintiffs,  wool  dealers  in  Boston,  delivered  the  wool  to  one  Clement- 
son,  a  wool  broker. 

The  plaintiffs  testified  that  they  had  sold  wool  to  Pomeroy  &  Sons, 
of  Pittsfield,  through  Clementson,  and  that  he,  on  applying  for  the  wool 
in  suit,  said  that  he  had  an  offer  from  a  manufacturer  for  the  wool, 
whose  name  he  would  not  disclose,  but  who  was  as  good  as  Pomeroy  & 
Sons.     Finally  the  plaintiffs  allowed  him  to  take  the  wool  with  the  un- 

1  Lords  Hatherley  and  Penzance  delivered  concurring  opinions.  Lord  Gordon 
also  concurred.  In  the  opinions  reliance  was  placed  on  Hardman  v.  Booth,  1  H  &  C. 
803,  and  Iliggons  v.  Burton,  26  L  J.  Ex.  342,  Lord  Hatherley  also  said:  "We  have 
heen  pressed  very  much  with  an  ingenious  mode  of  putting  the  case  on  the  part  of  the 
counsel,  who  have  argued  with  eminent  ability  for  the  appellants  in  this  case,  namely, 
suppose  this  fraudulent  person  had  gone  himself  to  the  firm  from  whom  he  wished  to 
obtain  the  goods,  and  had  represented  that  he  was  a  member  of  one  of  the  largest  firms 
in  London.  Suppose,  on  his  making  that  representation,  the  goods  had  been  delivered 
to  lii in.  Now  I  am  very  far,  at  all  events  on  the  present  occasion,  from  seeing  my  way 
to  this,  that  the  goods  being  sold  to  him  as  representing  that  firm,  he  could  be  treated 
in  any  other  way  than  as  an  agent  of  that  firm  ;  or  suppose  he  had  said :  '  I  am  as  rich 
as  that  firm ;  I  have  transactions  as  large  as  those  of  that  firm  ;  I  have  a  large  balance 
at  my  bankers,'  —  then  the  sale  would  have  been  a  sale  to  a  fraudulent  purchaser  on 
fraudulent  representations,  and  a  sale  which  would  have  been  capable  of  being  set 
aside,  but  still  a  sale  would  have  been  made  to  the  person  who  made  those  false  repre- 
sentations ;  and  the  parting  with  the  goods  in  that  case  might  possibly  —  I  say  no  more 
—  have  passed  the  property." 


SECT.  I.]  KODLIFF   V.    DALLIXGF.R.  483 

derstanding  that  he  was  to  pa}'  them  immediately  the  sum  he  received 
from  his  principal. 

The  sale  was  entered  by  the  plaintiffs  on  their  books  as  a  sale  to 
Clementson.  On  receiving  the  wool  Clementson  stored  it  with  the 
defendant,  a  public  warehouseman,  and  immediately  pledged  the  ware- 
house receipts  with  the  Massachusetts  Loan  and  Trust  Company  as 
security  for  a  loan  of  $2,000. 

It  was  an  undisputed  fact  that  Clementson  had  not  any  such  offer, 
and  did  not  act  for  any  such  person  as  the  plaintiffs  testified  that  he 
represented  at  the  time  of  obtaining  the  wool. 

The  judge  instructed  the  jury  that  there  were  three  possible  views  of 
the  transaction:  (1)  that  they  might  find  it  was  an  ordinary  sale  to 
Clementson;  or  (2)  that  it  was  not  a  sale  to  Clementson,  but  was  a 
delivery  to  Clementson  as  a  broker,  with  a  view  to  his  selling  it  to  some 
customer,  whom  he  expected  afterward  to  negotiate  with,  and  to  con- 
summate a  sale  with  him  ;  and,  if  the}-  found  this,  then  there  was  a 
special  provision  of  the  statute  which  protects  persons  dealing  in  good 
faith  with  a  broker  having  property  in  that  way,  so  far  as  they  make 
advances  or  loans  upon  property  in  pledge,  in  good  faith,  to  persons 
who  have  custody  of  property  as  brokers,  with  authont}-  to  sell  or  dis- 
pose of  it;  or  (3)  that  it  was  not  a  sale  to  Clementson,  or  a  delivery 
to  him  as  broker  with  authority  to  sell,  but  that  it  was  a  delivery  to 
Clementson,  upon  his  representation  that  he  came  from  a  purchaser, 
representing  him,  with  an  offer  for  it, — a  purchaser  whose  name  he 
did  not  disclose,  —  and  that  these  goods  were  delivered  to  him  as  the 
agent  of  that  purchaser,  as  a  sale  to  that  purchaser  ;  and  if  this  was  the 
fact,  that  the  plaintiffs  were  entitled  to  the  property,  notwithstanding 
it  was  subsequently  pledged  to  the  Massachusetts  Loan  and  Trust 
Company. 

The  judge  further  instructed  the  jury,  upon  the  third  view,  '-'that,  if 
this  was  a  transfer  upon  a  false  representation  made  by  Clementson,  — 
a  representation  that  he  came  with  an  offer  from  a  third  person  whose 
name  he  did  not  wish  to  disclose,  —  and  the  goods  were  delivered  to 
Clementson  as  a  sale  to  him  as  the  agent  of  this  third  person  whose  offer 
he  was  bearing,  with  the  view  that  the  property  should  pass  at  the  time 
to  that  third  person  and  thus  constitute  a  sale  to  such  person,  from 
whom  payment  was  to  be  made  subsequently,  and  the  payment  to  be 
brought  back  by  Clementson  as  the  agent  of  that  third  person,  Clem- 
entson had  no  right  afterward  to  deal  with  that  property  at  all :  that  he 
got  it  into  his  possession  by  fraud,  and  he  got  it  into  his  possession 
without  any  authority  to  make  any  subsequent  sale,  or  to  do  anything 
with  it;  ami  that  it  was  wrongly  in  his  possession  from  the  start,  and 
any  person  who  saw  fit  to  advance  money  upon  it  or  to  buy  it.  however 
honestly,  and  in  perfect  good  faith,  would  be  the  loser,  and  the  plaintiffs 
could  pursue  the  property  and  get  it  wherever  they  could  find  it,  when- 
ever the  fraud  practised  upon  them  should  come  to  their  knowledge."1 
1  The  statement  of  the  case  lias  been  abbreviated. 


484  RODLIFF   V.    DALLIXGER.  [CHAP.  IV. 

The  jury  returned  a  verdict  for  the  plaintiffs  ;  and  the  defendant 
alleged  exceptions. 

H.  D.  Hyde,  for  the  defendant. 

A.  ZTemenioay,  for  the  plaintiffs. 

Holmes,  J.  The  plaintiffs'  evidence  warranted  the  conclusion  that 
they  refused  to  sell  to  Clementson,  the  broker,  but  delivered  the  wool 
to  him  on  the  understanding  that  it  was  sold  to  an  undisclosed  manu- 
facturer in  good  credit  with  the  plaintiffs.  This  evidence  was  not  ob- 
jected to,  and  was  admissible,  notwithstanding  the  fact  that  the  sale 
was  entered  on  the  plaintiffs'  books  as  a  sale  to  Clementson,  and  that  a 
bill  was  made  to  him.  Commonwealth  v.  Jeffries,  7  Allen,  548,  564. 
It  was  admitted  that  Clementson.  in  fact,  was  not  acting  for  such  an 
undisclosed  principal ;  and  it  follows  that,  if  the  plaintiff's'  evidence  was 
believed,  there  was  no  sale.  There  could  not  be  one  to  this  supposed 
principal,  because  there  was  no  such  person,  and  there  was  not  one  to 
Clementson,  because  none  purported  to  be  made  to  him,  but,  on  the 
contrary,  such  a  sale  was  expressly  refused  and  excluded.  Edmunds 
r.  Merchants'  Despatch  Transportation  Co.  135  Mass.  283. 

It  was  suggested  that  this  case  differed  from  the  one  cited,  because 
there  the  principal  was  disclosed,  whereas  here  he  was  not,  and  that 
credit  could  not  be  supposed  to  have  been  given  to  an  unknown  person. 
We  have  nothing  to  sa}*  as  to  the  weight  which  this  argument  ought  to 
have  with  a  jury,  beyond  observing  that  the  plaintiffs  had  reason  in 
Clementson's  representations  forgiving  credit  to  the  supposed  manufac- 
turer. But  there  is  no  rule  of  law  that  makes  it  impossible  to  contract 
with  or  sell  to  an  unknown  but  existing  party.  And  if  the  jury  find 
that  such  a  sale  was  the  only  one  that  purported  to  be  made,  the  fact 
that  it  failed  does  not  turn  it  into  a  sale  to  the  party  conducting  the 
transaction.  Schmaltz  v.  Avery,  16  Q.  B.  655,  only  decides  that  a  man's 
describing  himself  in  a  charter-party  as  "  agent  of  the  freighter  "  is  not 
sufficient  to  preclude  him  from  alleging  that  he  is  the  freighter.  It  does 
not  hint  that  the  agent  could  not  be  excluded  by  express  terms,  or  by 
the  description  of  the  principal,  all  hough  insufficient  to  identify  the  in- 
dividual dealt  with,  as  happened  here;  still  less,  that  in  favor  of  third 
persons  the  agent  would  be  presumed  without  evidence  to  be  the  undis- 
closed principal,  although  expressly  excluded.       ' 

The  invalidity  of  the  transaction  in  the  case  at  bar  does  not  depend 
upon  fraud,  but  upon  the  fact  that  one  of  the  supposed  parties  is  want- 
ing, it  does  not  matter  how.  Fraud  only  becomes  important,  as  such. 
when  a  sale  or  contract  is  complete  in  its  formal  elements,  and  therefore 
valid  unless  repudiated,  but  the  right  is  claimed  to  rescind  it.  It  goes 
to  the  motives  for  making  the  contract,  not  to  its  existence  ;  as  when  a 
vendee  expressly  or  impliedly  represents  that  he  is  solvent  and  intends 
to  pay  for  goods,  when  in  fact  he  is  insolvent,  and  has  no  reasonable 
expectation  of  paiying  for  them  ;  or,  being  identified  by  the  senses  and 
dealt  with  as  the  person  so  identified,  says  that  he  is  A,  when  in  fad 
he  19  B.     I'm  when  one  of  the  formal  constituents  of  a  legal  transaction 


SECT.  I.]  KODLIFF    V.    DALLINGER.  |     ", 

is  wanting,  there  is  no  question  of  rescission  ;  the  transaction  is  void  ab 
inii io,  ami  fraud  does  not  impart  to  it.  againsl  the  will  of  tin-  defrauded 

party,  a  validity  that  it  would  not  have  if  the  want  were  due  to  innocent 
mistake. 

The  sale  being  void,  and  not  merely  voidable,  or,  in  simpler  words, 
there  having  been  no  sale,  the  delivery  to  Clementson  gave  him  no 
power  to  convey  a  good  title  to  a  bona  Jide  purchaser.  He  had  not 
even  a  defective  title,  and  his  mere  possession  did  not  enable  him  to 
pledge  or  mortgage.  The  considerations  in  favor  of  protecting  bona 
Jide  dealers  with  persons  in  possession,  in  eases  like  the  present,  were 
much  urged  in  Thaeher  v.  Moors,  l:;i  Mass.  156,  but  did  not  prevail. 
Much  less  can  they  be  allowed  to  prevail  against  a  legal  title,  without 
the  intervention  of  statute. 

Exceptions  overruled} 

1  In  Stoddard  v.  Ham,  129  Mass.  38.3,  one  Leonard,  a  commission  merchant,  who 
sometimes  bought  goods  on  Ins  own  account,  purchased  bricks  of  the  plaintiffs.  They 
supposed  the}  Were  Belling  the  bricks  to  the  defendant  through  Leonard  as  his  agi  nt, 
and  would  not  have  sold  them  to  Leonard  personally.  Leonard  was  not  and  did  not 
represent  that  he  was  the  defendant's  agent.  Immediately  thereafter  Leonard  sold  the 
bricks  to  the  defendant.  Leonard,  having  failed,  ami  the  defendant  denying  his  agency, 
the  plaintiffs  brought  an  action  for  conversion  after  demand  and  refusal.  The  trial 
judge  ruled  that  the  plaintiffs  could  not  recover  and  reported  the  case.  Colt,  J.,  said  in 
part:  "It  is  not  enough  to  give  the  plaintiffs  a  right  to  recover,  that  they  supposed 
they  were  soiling  bricks  to  the  defendant,  through  Leonard  his  agent,  and  that  thev 
would  not  have  sold  them  to  Leonard  on  his  sole  credit.  The  judge  found  that  they 
were  in  fact  sold  to  Leonard.  There  was  no  fraud,  no  false  representation  of  agenev, 
or  pretence  on  the  part  of  Leonard  that  he  was  buying  for  any  one  else.  He  was  a 
commission  merchant,  who  was  in  the  habit  of  purchasing  goods  on  his  own  account, 
ami  who  honestly  bought  the  bricks  for  himself,  and  sold  them  to  the  defendant  as  his 
own.  It  was  not  a  case  of  mistaken  identity.  The  plaintiffs  knew  that  they  were  deal- 
ing with  Leonard  ;  they  did  not  mistake  him  for  the  defendant ;  nothing  was  said  as  to 
any  other  party  to  the  sale.  The  conclusion  is  unavoidable  that  the  contract  was  with 
him.  The  difficulty  is,  that  the  plaintiffs,  if  they  had  any  other  intention,  neglected 
then  to  disclose  it.  It  was  a  mistake  on  one  side,  of  which  the  other  had  no  knowl- 
edge or  suspicion,  and  which  consisted  solely  in  the  unauthorized  assumption  that 
Leonard  was  acting  as  agent  for  a  third  person,  and  not  for  himself. 

"  It  is  elementary  in  the  law  governing  contracts  of  sale  and  all  other  contracts,  that 
the  agreement  is  to  be  ascertained  exclusively  from  the  conduct  of  the  parties  and  the 
language  used  when  it  is  made,  as  applied  to  the  subject  matter  and  to  known  usages. 
The  assent  must  be  mutual,  and  the  union  of  minds  is  ascertained  by  some  medium  of 
communication.  A  proposal  is  made  by  one  party  ami  is  acceded  to  by  the  other  in 
some  kind  of  language  mutually  intelligible,  ami  this  is  mutual  assent.  Met.  Con  U. 
A  party  cannot  escape  the  natural  and  reasonable  interpretation  which  must  be  put  on 
what  he  says  and  does,  by  showing  that  his  words  were  used  and  his  acts  done  with  a 
different  and  undisclosed  intention.  Foster  v.  Ropes,  ill  Mass.  in.  16  Daley  v.  Car- 
ney, !  17  Mass.  288.  Wright  v.  Willis.  2  Allen.  191,  2  Chit.  Con.  (11th  Am.  ell.)  1022. 
It  is  not  the  secret  purpose,  but  the  expressed  intention,  which  must  govern,  in  the  ab- 
sence of  fraud  and  mutual  mistake.  A  party  is  estopped  to  deny  that  the  intention 
communicated  to  the  other   side  was  not    his   real  intention.      To  hold  otherwise  would 

be  to  put  it  in  the  power  of  the  vendor  in  every  case  to  defeat  the  title  of  the  vendee, 

and  of  those  holding  under  him,  by  proving  that  lie  intended  to  sell  to  another  person, 
and  so  there  was  no  mutual  assent  to  the  contract." 


486  twyne's  case,  [chap.  iv. 

SECTION   II. 

How  far  Retention  of  Possession  by  the  Seller  is  Fraudulent. 

TWYNE'S    CASE. 

In  the  Star-Chamber,  1601. 

[Reported  in  3  Coke,  80  b.] 

In  an  information  by  Coke,  the  Queen's  Attorney  General,  against 
Twyne  of  Hampshire,  in  the  Star-Chamber,  for  making  and  publishing 
of  a  fraudulent  gift  of  goods  :  the  case  on  the  stat.  of  13  Eliz.  cap.  5,1 
was  such  ;  Pierce  was  indebted  to  Twyne  in  four  hundred  pounds,  and 
was  indebted  also  to  C.  in  two  hundred  pounds.  C.  brought  an  action 
of  debt  against  Pierce,  and  pending  the  writ,  Pierce  being  possessed  of 
goods  and  chattels  of  the  value  of  three  hundred  pounds,  in  secret  made 
a  general  deed  of  gift  of  all  bis  goods  and  chattels  real  and  personal 
whatsoever  to  Twyne,  in  satisfaction  of  his  debt ;  notwithstanding  that 
Pierce  continued  in  possession  of  the  said  goods,  and  some  of  them  he 
sold  ;  and  he  shore  the  sheep,  and  marked  them  with  his  own  mark  : 
and  afterwards  C.  had  judgment  against  Pierce,  and  had  a  fieri  facias 
directed  to  the  sheriff  of  Southampton,  who  by  force  of  the  said  writ 
Came  to  make  execution  of  the  said  goods  ;  but  divers  persons,  by  the 
command  of  the  said  Twyne,  did  with  force  resist  the  said  sheriff,  claim- 
ino-  them  to  be  the  goods  of  the  said  Twyne  by  force  of  the  said  gift ; 
ami  openly  declared  by  the  commandment  of  Twyne,  that  it  was  a  good 
gift,  and  made  on  a  good  and  lawful  consideration.  And  whether  this 
gift  on  the  whole  matter,  was  fraudulent  and  of  no  effect  by  the  said  act 
of  13  Eliz.  or  not,  was  the  question.  And  it  was  resolved  by  Sir  Thomas 
Egerton,  Lord  Keeper  of  the  Great  Seal,  and  by  the  Chief  Justice  Pop- 
ham  and  Anderson,  and  the  whole  court  of  Star-Chamber,  that  this  gift 
was  fraudulent  within  the  Statute  of  13  Eliz.  And  in  this  case  divers 
points  were  resolved  :  — 

1st.  That  this  gift  had  the  signs  and  marks  of  fraud,  because  the  gift 
is  general,  without  exception  of  his  apparel,  or  anything  of  necessity  ; 
for  it  is  commonly  said,  quod  dolus  versatur  in  genercdibus. 

2d.  The  donor  continued  in  possession,  and  used  them  as  his  own  ; 

i  By  the  Statute  13  Eliz.  c  5,  §  2  (made  perpetual  by  Statute  29  Eliz.  c.  5),  for  the 
avoiding  of  feigned,  covinous,  and  fraudulent  feoffments,  gifts,  grants,  alienations, 
conveyances,  bonds,  suits,  judgments,  executions,  &c  devised  to  the  intent  to  delay, 
hinder,  or  defraud,  creditors  and  others  of  their  just  and  lawful  actions,  &c.  it  is  en- 
:„.,,,|,  '"that  nil  mi. I  fvcrv  feoffment,  ^ft.  tfrnut,  alienation,  &c.  and  all  and  every  bond, 
suit,  judgment,  and  execution,  for  any  intent  or  purpose  before  declared,  shall  be 
utterly  void;"  with  a  proviso  that  the  act  shall  not  extend  to  any  grants,  &c.  upon  good 
consideration  and  bona  fide. 


SECT.  II.]  twyne's  case.  487 

and  by  reason  thereof  he  traded  and  trafficked  with  others,  and  de- 
frauded and  deceived  them. 

3d.  It  was  made  in  secret,  et  dona  clandestine!,  sunt  semper  sus- 
piciosa. 

lth.   It  was  made  pending  the  writ. 

5th.  Here  was  a  trust  between  the  parties,  for  the  donor  possessed 
all,  and  used  them  as  his  proper  goods,  and  fraud  is  always  apparelled 
and  clad  with  a  trust,  and  a  trust  is  the  cover  of  fraud. 

6th.  The  deed  contains,  that  the  gift  was  made  honestly,  truby,  and 
bona  fide  ;  et  clausidce  inconsuef  semjw  inducunt  suspicionem. 

Secondly,  it  was  resolved,  that  notwithstanding  here  was  a  true  debt 
due  to  Twyne,  and  a  good  consideration  of  the  gift,  yet  it  was  not 
within  the  proviso  of  the  said  act  of  13  Eliz.  by  which  it  is  provided, 
that  the  said  act  shall  not  extend  to  any  estate  or  interest  in  lands,  &c. 
goods  or  chattels  made  on  a  good  consideration  and  bona  fide ;  for 
although  it  is  on  a  true  and  good  consideration,  yet  it  is  not  bona  fide, 
for  no  gift  shall  be  deemed  to  be  bona  fide  within  the  said  proviso  which 
is  accompanied  with  any  trust;  as  if  a  man  be  indebted  to  five  several 
persons,  in  the  several  sums  of  twenty  pounds,  and  hath  goods  of  the 
value  of  twenty  pounds,  and  makes  a  gift  of  all  his  goods  to  one  of  them 
in  satisfaction  of  his  debt,  but  there  is  a  trust  between  them,  that  the 
donee  shall  deal  favorably  with  him  in  regard  of  his  poor  estate,  either 
to  permit  the  donor,  or  some  other  for  him,  or  for  his  benefit,  to  use  or 
have  possession  of  them,  and  is  contented  that  he  shall  pay  him  his 
debt  when  he  is  able  ;  this  shall  not  be  called  bona  fide  within  the  said 
proviso  ;  for  the  proviso  saith  on  a  good  consideration,  and  bona  fide  ; 
so  a  good  consideration  doth  not  suffice,  if  it  be  not  also  bona  fide:  and 
therefore,  reader,  when  any  gift  shall  be  to  you  in  satisfaction  of  a  debt, 
by  one  who  is  indebted  to  others  also;  1st,  Let  it  be  made  in  a  public 
manner,  and  before  the  neighbors,  and  not  in  private,  for  secrecy  is  a 
mark  of  fraud.  2d,  Let  the  goods  and  chattels  be  appraised  by  good 
people  to  the  very  value,  and  take  a  gift  in  particular  in  satisfaction  of 
your  debt.  3d,  immediately  after  the  gift,  take  the  possession  of  them  ; 
for  continuance  of  the  possession  in  the  donor  is  a  sign  of  trust.  And 
know,  reader,  that  the  said  words  of  the  proviso,  on  a  good  considera- 
tion, and  bona  fide,  do  not  extend  to  every  gift  made  bona  fide  ;  and 
therefore  there  are  two  manners  of  gifts  on  a  good  consideration,  soil, 
consideration  of  nature  or  blood,  and  a  valuable  consideration.  As  to 
the  first,  in  the  case  before  put:  if  he  who  is  indebted  to  five  several 
persons,  to  each  party  in  twenty  pounds,  in  consideration  of  natural 
affection,  gives  all  his  goods  to  his  son,  or  cousin,  in  that  ease,  foras- 
much as  others  should  lose  their  debts.  &e.  which  are  things  of  value, 
the  intent  of  the  act  was,  that  the  consideration  in  such  case  should  be 
valuable:  for  equity  requires,  that  such  gift,  which  defeats  others, 
should  he  made  on  as  high  and  good  consideration  as  the  things  which 
are  thereby  defeated  ave ;  and  it  is  to  be  presumed,  that  the  father,  if 
he  had  not  been  indebted  to  others,  would  not  have  dispossessed  himself 


48S  twyne's  case.  [chap.  iv. 

of  all  his  goods,  and  subjected  himself  to  his  cradle ;  and  therefore  it 
shall  he  intended,  that  it  was  made  to  defeat  his  creditors  :  and  if  con- 
sideration of  nature  or  blood  should  be  a  good  consideration  within  this 
proviso,  the  statute  would  serve  for  little  or  nothing,  and  no  creditor 
would  he  sure  of  his  debt.  And  as  to  gifts  made  bona  fide,  it  is 
to  be  known,  that  every  gift  made  bona  fide  either  is  on  a  trust 
between  the  parties  or  without  any  trust;  every  gift  made  on  a 
trust  is  out  of  this  proviso  ;  for  that  which  is  betwixt  the  donor  and 
donee,  called  a  trustier  nomen  sjjeciosum,  is  in  truth,  as  to  all  the  cred- 
itors, a  fraud,  for  they  are  thereby  defeated  and  defrauded  of  their  true 
and  due  debts.  And  every  trust  is  either  expressed,  or  implied  :  an 
express  trust  is,  when  in  the  gift,  or  upon  the  gift,  the  trust  by  word  or 
writing  is  expressed  ;  a  trust  implied  is,  when  a  man  makes  a  gift  with- 
out any  consideration,  or  on  a  consideration  of  nature,  or  blood  only  : 
and  therefore,  if  a  man  before  the  Stat,  of  27  H.  8  had  bargained  his 
land  for  a  valuable  consideration  to  one  and  his  heirs,  by  which  he  was 
seised  to  the  use  of  the  bargainee  ;  and  afterwards  the  bargainor,  with- 
out a  consideration,  infeoffed  others,  who  had  no  notice  of  the  said  bar- 
gain ;  in  this  case  the  law  implies  a  trust  and  confidence,  and  they  shall 
be  seised  to  the  use  of  the  bargainee  :  so  in  the  same  case,  if  the  feoffees, 
in  consideration  of  nature,  or  blood,  had  without  a  valuable  considera- 
tion enfeotfed  their  sons,  or  any  of  their  blood  who  had  no  notice  of  the 
first  bargain,  yet  that  shall  not  toll  the  use  raised  on  a  valuable  con- 
sideration ;  for  a  feoffment  made  only  on  consideration  of  nature  or 
blood,  shall  not  toll  an  use  raised  on  a  valuable  consideration,  but  shall 
toll  an  use  raised  on  consideration  of  nature,  for  both  considerations 
are  in  cequali  jure,  and  of  one  and  the  same  nature. 

And  when  a  man,  being  greatly  indebted  to  sundry  persons,  makes  a 
gift  to  his  son,  or  any  of  his  blood,  without  consideration,  but  only  of 
nature,  the  law  intends  a  trust  betwixt  them,  scil.  that  the  donee  would, 
in  consideration  of  such  gift  being  voluntarily  and  freely  made  to  him, 
and  also  in  consideration  of  nature,  relieve  his  father,  or  cousin,  and  not 
see  him  want  who  had  made  such  gift  to  him,  vide  33  II.  6,  33,  by 
Prisot,  if  the  father  enfeoffs  his  son  and  heir  apparent  within  age  bona 
fide,  yet  the  lord  shall  have  the  wardship  of  him  :  so  note,  valuable  con- 
sideration is  a  good  consideration  within  this  proviso;  and  a  gift  made 
bona  fide  is  a  gift  made  without  any  trust  either  expressed  or  implied  : 
by  which  it  appears,  that  as  a  gift  made  on  a  good  consideration,  if  it 
be  not  also  bona  fide,  is  not  within  the  proviso;  so  a  gift  made  bona 
fxle,  if  it  be  not  on  a  good  consideration,  is  not  within  the  proviso  ;  but 
it  ought  to  be  on  a  good  consideration,  and  also  bona  fide. 

To  one  who  marvelled  what  should  lie  the  reason  that  acts  and  stat- 
ute are  continually  made  at  every  parliament  without  intermission,  and 
without  <nd  ;  a  wise  man  made  a  good  and  short  answer,  both  which  are 
well  composed  in  verse. 

"  Quaeritur,  ut  crescunt  tot  magna  volumina  legis? 
In  promptu  causa  est,  crescit  in  orbe  dolus." 


SECT.  II. J  EDWARDS   V.    HARDEN.  489 

And  because  fraud  and  deceit  abound  in  these  days  more  than  in  for- 
mer times,  it  was  resolved  in  this  case  by  the  whole  court,  that  all 
statutes  made  against  fraud  should  be  liberally  and  beneficially  ex- 
pounded to  suppress  the  fraud.  Note,  reader,  according  to  their  opin- 
ions, divers  resolutions  have  been  made.1 


EDWARDS  v.  HARBEN. 
In  the  King's  Bench,  May  31,  1788. 

[Reported  in  2  Tain  Reports,  587.] 

Assumpsit  for  goods  sold  to  the  defendant's  testator.  The  defendant 
pleaded  that  he  was  not  executor,  nor  had  ever  administered  as  such  ; 
and,  secondly,  that  he  had  fully  administered,  &c.  Replication,  that 
he  had  administered  divers  goods,  &e.,  of  the  testator;  and  issue 
thereon.  And  to  the  second  plea,  that  the  defendant,  at  the  time  of 
exhibiting  the  plaintiff's  bill,  had,  and  still  has,  goods  and  chattels  of 
the  deceased  in  his  hands  sufficient  to  satisfy  the  plaintiff's  demands  ; 
and  issue  thereon.  At  the  trial  at  the  last  assizes  at  East-Grinstead, 
Sussex,  a  verdict  was  found  for  the  plaintiff,  with  £22  186'.  Gd.  damages, 
and  40s.  costs,  subject  to  the  opinion  of  this  court  on  the  following 
case.  William  Tempest  Mercer  in  his  lifetime,  and  before  the  time  of 
the  execution  of  the  bill  of  sale  hereinafter  mentioned,  was  indebted  to 
the  plaintiff  in  the  sum  of  £22  18s.  Gd.  for  goods  sold  and  delivered, 
which  sum  still  remains  due  to  the  plaintiff.  William  Tempest  Mercer, 
at  the  time  of  the  execution  of  the  said  bill  of  sale,  was  likewise  indebted 
to  the  defendant  in  the  sum  of  £191  for  mone}'  lent.  On  the  27th  of 
March,  1786,  Tempest  Mercer  offered  to  the  defendant  a  bill  of  sale  of 
his  goods,  household  furniture,  and  stock  in  trade,  in  his  house  at  Lewes, 
by  way  of  security  for  the  said  debt.  The  defendant  refused  to  accept 
of  the  same,  unless  he  should  be  at  liberty  to  enter  upon  the  effects  and 
sell  them  immediately  after  the  expiration  of  fourteen  days  from  the 
execution  thereof,  in  case  the  mone}'  should  not  be  sooner  paid  ;  to 
which  Tempest  Mercer  agreed,  and  accordingly  on  the  same  day  exe- 
cuted a  bill  of  sale  in  the  common  form,  by  which  Mercer  bargained 
and  sold  to  the  defendant  forever  his  household  furniture,  medicines, 
stock  in  trade  [particularly  specifying  them],  and  all  and  every  other 
the  goods,  chattels,  and  effects  whatsoever,  in  and  about  his  dwelling- 
house  and  premises  at  Lewes.  Immediately  upon  the  execution  of  the 
bill  of  sale,  possession  was  delivered  to  the  defendant  in  the  manner 
described  therein,  viz.,  by  the  delivery  of  one  corkscrew  in  the  name  of 
the  whole,  but  in  no  other  manner  whatsoever.  All  the  effects  described 
in  the  bill  of  sale  remained  in  the  possession  of  William  Tempest  Mercer 

1  A  portion  of  the  case  has  been  omitted. 


490  EDWARDS   V.    HARBEN.  [CHAP.  IV. 

until  the  time  of  his  death,  which  happened  on  the  7th  of  April,  1786. 
On  the  8th  of  April,  1786,  being  before  the  expiration  of  fourteen 
days  from  the  execution  of  the  bill  of  sale,  the  defendant  entered 
and  took  possession  of  the  effects  contained  in  the  bill  of  sale,  being 
then  in  the  house  of  the  deceased,  and  afterwards  sold  the  same  for 
£236  7«.  bd.  AVilliam  Tempest  Mercer  died  intestate  ;  and  no  letters 
of  administration  were  taken  out  to  the  deceased  by  the  defendant,  or 
b}-  an}-  other  person,  before  the  commencement  of  this  action.  The 
question  for  the  opinion  of  the  court  is,  Whether  the  defendant  be 
entitled  to  retain  the  produce  of  the  said  effects,  or  at  least  the  value  of 
£191  the  consideration  of  the  bill  of  sale  :  or  whether  the  bill  of  sale  be 
void  as  against  the  creditors  of  William  Tempest  Mercer  ;  and  the 
plaintiff  in  this  action  be  entitled  to  recover  his  debt  of  £22  18s.  6d. 
against  the  defendant,  as  executor  de  son  tort? 

Partington,  for  the  plaintiff. 

Steele,  for  the  defendant. 

Buller,  J.  This  is  an  action  brought  by  the  plaintiff,  who  is  a  credi- 
tor of  Mercer,  against  the  defendant  as  executor.  It  does  not  appear 
by  the  case  that  any  other  goods  than  those  mentioned  in  the  bill  of 
sale  came  to  the  defendant's  hands.  The  bill  of  sale  is  dated  on  the 
27th  March,  1786,  and  is  a  general  bill  of  sale  of  all  the  defendant's 
household  furniture  and  stock-in-trade.  This  bill  of  sale  is  to  take  effect 
immediately  on  the  face  of  it ;  but  there  was  an  agreement  between 
Mercer  and  the  defendant,  that  the  goods  should  not  be  sold  till  the 
expiration  of  fourteen  days  from  the  date  of  its  execution  ;  and  no  pos- 
session was  actually  taken  till  after  the  death  of  Mercer,  which  happened 
within  the  fourteen  days  ;  but  there  was  a  formal  delivery  of  a  cork- 
screw in  the  name  of  the  whole.  On  this  case  two  questions  arise  :  first, 
whether  this  bill  of  sale  be  void  or  not;  and  secondly,  if  void,  whether 
the  defendant,  b}'  having  taken  these  goods  under  the  bill  of  sale,  made 
himself  liable  as  an  executor  de  son  tort.  The  first  question  came  before 
the  court  in  the  last  term  in  the  case  of  Bamford  v.  Baron,  2  T.  R.  594,  n., 
on  a  motion  for  a  new  trial  from  the  Northern  Circuit ;  and  after  hear- 
ing that  case  argued,  we  thought  it  right  to  take  the  opinion  of  all  the 
judges  upon  it.  Accordingly  we  consulted  with  all  the  judges,  who  are 
unanimously  of  opinion  that  unless  possession  accomqxuries  and  follows 
the  deed,  it  is  fraudulent  and  void  ;  I  lay  stress  upon  the  words  tk  accom- 
panies and  follows,"  because  I  shall  mention  some  cases  where,  though 
possession  was  not  delivered  at  the  time,  the  conveyance  was  not  held 
to  be  fraudulent.  There  are  many  cases  on  this  subject ;  from  which  it 
appears  to  me  that  the  principle  which  I  have  stated  never  admitted  of 
any  serious  doubt.  .So  long  ago  as  the  case  in  Bulstrode,  the  court 
held  that  an  absolute  conveyance  or  gift  of  a  lease  for  years,  unattended 
with  possession,  was  fraudulent;  but  if  the  deed  or  conveyance  be  con- 
ditional,  there  the  vendor's  continuing  in  possession  does  not  avoid  it, 
because  by  the  terms  of  the  conveyance  the  vendee  is  not  to  have  the 
possession  till  he  has  performed  the  condition.     Now  here  the  bill  of 


SECT.  II.]  EDWARDS   V.    HARDEN.  491 

sale  was  on  the  face  of  it  absolute,  and  to  take  place  immediately,  and 
the  possession  was  not  delivered  ;   and  that  case  makes  the  distinction 
between  deeds  or  bills  of  sale  which  are  to  take  place  immediately,  and 
those  which  are  to  take  place  at  some  future  time.     For  in  the  latter 
case  the  possession  continuing  in  the  vendor  till  that  future  time,  or  till 
that  condition  is  performed,  is  consistent  with  the  deed  ;  and  such  pos- 
session comes  within  the  rule,  as  accompanying  and  following  the  deed. 
That  case  has  been  universally  followed  by  all  the  cases  since.     One  of 
the  strongest  is  quoted  in  Bucknal  and  Others  v.  Roiston  (Pr.  in  Chan. 
-  s ^ )  5  there  one  Brewer,  having  shipped  a  cargo  of  goods,  borrowed  of 
the  plaintirT£600  on  bottomry,  and  at  the  same  time  made  a  bill  of  sale 
of  the  goods,  and  of  the  produce  and  advantage  thereof,  to  the  plaintiff. 
There  Sir  E.  Northey  cited  a  case,  "where  a  man  took  out  execution 
against  another ;   by  agreement  between  them  the  owner  was  to  keep 
the  possession   of  them   upon   certain  terms,   and   afterwards   another 
obtaiued  judgment  against  the  same  man,  and  took  the  goods  in  execu- 
tion ;  and  it  was  held  that  he  might,  and  that  the  first  execution  was 
fraudulent  and  void  against  any  subsequent  creditor,  because  there  was 
no  change  of  the  possession,  and  so  no  alteration  made  of  the  property." 
And  he  said  it  had  been  ruled  forty  times  in  his  experience  at  Guildhall, 
that,  if  a  man  sells  goods,  and  still  continue  in  possession  as  visible 
owner  of  them,  such  sale  is  fraudulent  and  void  as  to  creditors,  and  that 
the  law  has  been  always  so  held.     The  Lord  Chancellor  held  in  the 
principal  case  that  the  trust  of  those  goods  appeared  upon  the  very  face 
of  the  bill  of  sale.     That  though  they  were  sold  to  the  plaintiff's,  yet 
they  trusted  Brewer  to  negotiate  and  sell  them  for  their  advantage,  and 
Brewer's  keeping  possession  of  them  was  not  to  give  a  false  credit  to 
him  as  in  other  cases  which  had  been  cited,  but  for  a  particular  purpose 
agreed  upon  at  the  time  of  the  sale.    So  that  the  Chancellor  in  that  case 
proceeded  on  the  distinction  which   I  have  taken  ;   he  supported  the 
deed,  because  the  want  of  possession  was  consistent  with  it.     This  has 
been  argued  by  the  defendant's  counsel  as  being  a  case  in  which  the 
want  of  possession  is  only  evidence  of  fraud,  and  that  it  was  not  such  a 
circumstance  per  se  as  makes  the  transaction  fraudulent  in  point  of  law  ; 
that  is  the  point  which  we  have  considered,  and  we  are  all  of  opinion 
that  if  there  be  nothing  but  the  absolute  conveyance  without  the  pos- 
session, that  in  point  of  law  is  fraudulent.    On  the  other  hand  there  are 
cases,  where  the  vendor  has  continued  in  possession,  and  the  bill  of  sale 
has  not  been  adjudged  fraudulent,  if  the  want  of  immediate  possession 
be  consistent  with  the  deed.     Such  was  the  case  of  Lord  Cadogan  if. 
Kennet,  Cowp.  432  ;  because  there  the  possession  followed  the  deed. 
So  also  the  case  of  Ilaselinton  and  Another  v.  (Jill.  Tr.  2  I  <  Jeo.  3,  15.  R. 
post  3,  vol.  G20,  n.,  and  another,  sheriff  of  Middlesex;  there  personal 
property,  consisting  (inter  alia)  of  some  cows,  was  settled  on  the  mar- 
riage of  the  plaintiff's  wife  on  certain  trusts;  and  the  court  held  that 
only  those  which  were  purchased  after  the  marriage  could  be  taken  to 
satisfy  the  debts  of  the  husband.    The  second  question  then  is,  Whether 


402  MARTINDALE   V.    BOOTH.  [CHAP.  IV. 

the  defendant's  having  taken  possession  of  these  goods  after  Mercer's 
death,  though  under  the  bill  of  sale,  will  make  hiin  an  executor  de  son 
tort.-  The  two  cases,  which  were  cited  by  the  plaintiff's  counsel,  are 
decisive  of  this  point.  In  Bac.  Abr.  (2  Bac.  Abr.  605)  it  is  said  klif  a 
man  make  a  deed  of  gift  of  his  goods  in  his  life-time  by  covin  to  oust 
his  creditors  of  their  debts,  yet  after  his  death  the  vendee  shall  be 
charged  for  them."  There,  too,  the  possession  was  delivered  to  the 
vendee.  To  support  this  doctrine,  13  H.  4,  4  b.  Rol.  Abr.  549  are 
both  quoted.  Then  in  what  manner  shall  he  be  charged?  He  can  only 
be  charged  as  executor ;  because  any  intermeddling  with  the  intestate's 
effects  makes  him  so.  The  cases  in  Cro.  Jac.  and  Yelv.  cited  at  the 
bar  prove  it,  and  state  the  manner  in  which  he  shall  be  charged.  There 
is  also  another  strong  case  on  this  point  in  Dyer  (Dy.  166,  b).  In 
short,  every  intermeddling  after  the  death  of  the  party  makes  the  person 
so  intermeddling  an  executor  de  son  tort. 

Guose,  J.,  observed  that  it  was  unnecessary  to  repeat  what  had  been 
said  from  the  bench ;  but  said  that  he  was  perfectly'  satisfied  that  the 
law  was  as  had  been  stated.  Posted  to  the  plaintiff. 


MARTINDALE  v.   BOOTH. 
In  the  King's  Bench,  May  4,  1832. 

[Reported  in  3  Barnewull  cj-  Adolpkus,  498.] 

Trespass  for  taking  away  and  converting  furniture,  goods,  and 
chattels  of  the  plaintiffs.  Plea,  not  guilty-.  At  the  trial,  before  Lord 
Tenterden,  C.  J.,  at  the  Middlesex  sittings  after  Trinity  Term,  1829, 
the  jury  found  a  verdict  for  the  plaintiffs  for  £93  16s.,  subject  to  the 
opinion  of  this  court  on  the  following  case  :  — 

Before  the  8th  of  May,  1828,  one  W.  G.  Priest,  who  kept  the  Peacock 
Tavern  in  Maiden  Lane,  Middlesex,  was  indebted  to  the  plaintiffs,  wine 
and  spirit  merchants,  in  £10  for  wine  and  spirits.  Priest  having  ap- 
plied to  them  for  a  further  supply  of  wine  upon  credit,  and  for  a  loan 
of  money,  the  plaintiffs  refused  to  give  him  any  further  credit,  or  to 
lend  him  any  money  unless  he  would  give  them  satisfactory  security. 
Priest  then,  proposed  to  execute  a  bill  of  sale  to  them  of  the  furniture 
and  fixtures  in  the  Peacock  Tavern  as  such  security,  and  the  plaintiffs 
agreed  to  give  him  credit  thereupon  to  the  extent  of  £200.  After 
Priest  and  the  plaintiffs  had  agreed  to  give  and  accept  such  security, 
but  before  the  bill  of  sale  was  actually  executed,  the  plaintiff's,  upon 
the  faith  of  such  agreement,  advanced  to  Priest  £30  in  money,  and  to 
the  amount  of  £60  in  wine  and  spirits,  and  in  two  days  afterwards, 
viz.,  the  8th  of  May,  1828,  in  pursuance  of  the  agreement,  Priest  exe- 
cuted and  delivered  to  the  plaintiffs  a  bill  of  sale,  reciting  that  he, 
Priest,  was  indebted  to  the  plaintiffs  in  the  sum  of  £100,  for  money 


SECT.  II.]  MAKTINDALE   V.    BOOTH.  493 

advanced  and  goods  sold  and  delivered,  and  stating  that,  in  considera- 
tion thereof,  he  granted,  bargained,  sold,  and  assigned  unto  the  plain- 
tiffs all  the  household  goods,  furniture,  &c,  in  and  about  the  premises 
called  the  Peacock  Tavern,  to  hold  to  the  proper  use  and  behoof  of  the 
plaintiffs  forever,  subject  to  the  condition  thereinafter  contained:  pro- 
viso, that  if  Priest  should  pay  the  said  sum  of  £100,  with  lawful  interest 
thereon  by  instalments,  that  is  to  say,  £25  on  the  7th  of  June  then 
next,  £25  on  the  7th  of  May  next,  and  £50,  the  residue  thereof,  on 
the  7th  of  November.  1829,  the  deed  should  be  void  ;  but  in  default  of 
payment  of  all  or  any  of  the  said  sums  at  the  times  appointed,  then  it 
should  be  lawful,  although  no  advantage  should  have  been  taken  of  any 
previous  default,  for  the  plaintiffs  forthwith  to  enter  upon  the  premises, 
and  take  possession  of  the  goods,  furniture,  &c,  and  absolutely  sell 
and  dispose  of  the  same.  There  was  a  power  reserved  to  the  plaintiffs, 
during  the  continuance  of  the  deed,  to  enter  upon  the  premises  and 
lake  an  inventory;  and  also  at  any  time  after  default  as  aforesaid  to 
take  and  retain  possession  of  the  goods  until  they  should  deem  it  expe- 
dient to  sell.  Then  followed  a  proviso,  "that  until  default  should  be 
made  in  payment  of  all  or  any  of  the  said  sums,  it  should  be  lawful 
for  Priest  to  retain  and  keep  quiet  possession  of  all  and  singular  the 
said  household  goods,"  &c. 

Before  Priest  commenced  dealing  with  the  plaintiffs,  he  had  married 
the  widow  of  one  Higman,  who  formerly  kept  the  Peacock  Tavern,  and 
who.  at  the  time  of  his  death,  was  indebted  to  Combe,  Delafield,  and 
Co.,  in  the  sum  of  £1,100.  His  widow  being  executrix  of  his  will,  on 
her  marriage  with  Priest  they  both  became  possessed  of  Higman's 
effects  ;  and  Priest,  by  way  of  security  for  the  said  £1,100,  executed  a 
warrant  of  attorney  to  Combe,  Delafield,  and  Co.,  for  that  amount  in 
November,  1823.  On  the  1st  of  November.  1828,  Messrs.  Combe, 
Delafield.  and  Co.  caused  judgment  to  be  entered  up  on  the  warrant  of 
attorney,  and  sued  out  a  writ  of  fi.  fa.  directed  to  the  defendants 
Booth  and  Copeland,  then  sheriff  of  Middlesex,  who  thereupon  issued 
their  warrant  to  "Wilson,  the  other  defendant,  their  officer,  and  he  seized 
and  took  in  execution  the  goods  in  question,  being  the  furniture  and 
effects  in  the  Peacock  Tavern.  While  the  sheriff  remained  in  posses- 
sion, the  plaintiffs  came  upon  the  premises,  gave  the  defendants  notice 
of  the  bill  of  sale,  and  required  them  to  relinquish  possession,  which 
was  refused,  and  the  sheriff  sold  the  goods.  This  case  was  now 
argued  by 

Archbold,  for  the  plaintiffs. 
Comi/n,  contra. 

Littledale,  J.  The  cases  show  that  continuance  in  possession  of 
goods  and  chattels  by  a  vendor  after  the  execution  of  a  bill  of  sale  is 
a  budge  and  evidence  of  fraud;  but  1  think  that,  under  the  circum- 
stances of  this  case,  a  jury  would  have  negatived  fraud.  In  Jezeph  >:. 
Ingram,  1  B.  Moore,  189,  Dallas,  J.,  denies  that  Edwards  v.  Harben, 
2  T.  R.  587,  lays  down  a  general  rule,  that  in  transferring  chattels  the 


494  MARTINDALE   V.    BOOTH.  [CHAP.  IV. 

possession  must  accompany  and  follow  the  deed.  There  was  in  Jezeph 
v.  Ingram  a  mixed  possession  ;  for  the  vendee  superintended  the  man- 
agement of  the  farm,  and  was  occasionally  present.  That  ease, 
however,  shows  the  opinion  of  the  Court  of  Common  Pleas  to  have 
been,  that  a  change  of  possession  is  not  in  all  instances  necessary. 

Pakke,  J.  I  am  of  the  same  opinion.  I  think  that  the  want  of 
delivery  of  possession  does  not  make  a  deed  of  sale  of  chattels 
absolutely  void.  The  dictum  of  Buller,  J.,  in  Edwards  v.  Harben, 
2  T.  R.  587,  has  not  been  generally  considered,  in  subsequent  cases, 
to  have  that  import.  The  want  of  delivery  is  only  evidence  that  the 
transfer  was  colorable.  In  Benton  v.  Thornhill,  2  Marshall,  427,  it  was 
said  in  argument,  that  want  of  possession  was  not  only  evidence  of 
fraud,  but  constituted  it ;  but  Gibbs,  C.  J.,  dissented  ;  and  although 
the  vendor  there,  after  executing  a  bill  of  sale,  was  allowed  to  remain 
in  possession,  Gibbs,  C.  J.,  at  the  trial,  left  it  to  the  jury  to  say, 
whether,  under  all  the  circumstances,  the  bill  of  sale  were  fraudulent  or 
not.  It  is  laid  down  in  Sheppard's  Touchstone,  224  (7th  ed.),  "  that  a 
bargain  and  sale  may  be  made  of  goods  and  chattels  without  any  deliv- 
er}' of  an}'  part  of  the  things  sold  ;  "  and,  afterwards,  in  page  227,  it  is 
said  "  that  the  word  '  gift'  is  often  applied  to  movable  things,  as  trees, 
cattle,  household  stuff,  &c,  the  property  whereof  may  be  altered  as  well 
by  gift  and  delivery  as  by  sale  and  grant,  and  this  is,  or  may  be, 
either  by  word  or  writing ;  "  and  in  a  note  to  this  passage  by  the 
editor  it  is  said,  "that,  by  the  civil  law,  a  gift  of  goods  is  not  good 
without  delivery,  yet  in  our  law  it  is  otherwise,  when  there  is  a  deed  : 
also  in  a  donatio  mortis  cazisa,  there  must  be  a  delivery."  Then  it  is 
evident  that  the  bill  of  sale,  in  this  case,  without  delivery,  conveyed 
the  property  in  the  household  goods  and  chattels  to  the  plaintiffs.  It 
may  be  a  question  for  a  jury,  whether,  under  the  circumstances,  a  bill 
of  sale  of  goods  and  chattels  be  fraudulent  or  not ;  and  if  there  were 
any  grounds  for  thinking  that  a  jury  would  find  fraud  here,  we  might, 
this  being  a  special  case,  infer  it ;  but  there  is  no  ground  whatever  for 
saying  that  tins  bill  of  sale  was  fraudulent.  It  was  given  for  a  good 
consideration,  for  money  advanced  to  Priest  to  enable  him  to  carry  on 
his  trade,  and  his  continuance  in  possession  was  in  terms  provided  for. 

Judgment  for  the  plaintiffs.1 

1  Tenterden,  C.  J.,  and  Patteson,  J.,  delivered  concurring  opinions. 


SECT.  II.]  COOKSON    V.    SWIRE.  4'Jo 


COOKSON   v.   SWIRE. 
In  the  House  of  Lords,  May  23,  1884. 

[Reported  in  9  Appeal  Cases,  653.] 

Appeal  from  an  order  of  the  Court  of  Appeal.  The  appellants 
having  on  the  25th  of  January,  1883,  recovered  judgment  against 
Samuel  Vaughan  for  £734,  the  sheriff  of  Lancashire  the  next  day 
seized  under  a  fi.  fa.  certain  household  furniture  at  Croydon  Villa, 
Blackpool,  where  the  debtor  was  residing.  A  claim  having  been  made 
by  the  respondents,  an  interpleader  issue  was  directed,  in  which  the 
respondents,  as  plaintiffs,  affirmed,  and  the  appellants,  as  defendants, 
denied  that  the  goods  seized  were  at  the  time  of  the  seizure  the  prop- 
erty of  the  respondents  as  against  the  appellants.  At  the  trial,  before 
Cave,  J.,  at  Manchester,  in  April,  l£S3,  the  following  facts  were 
proved  :  — 

On  the  10th  of  May,  1873,  Samuel  Vaughan  being  in  difficulties,  the 
respondents  paid  his  debts,  and  he  executed  a  bill  of  sale  whereby  he 
assigned  to  the  respondents  the  goods  in  question  as  security  for 
loans  amounting  to  £698  10s.,  with  a  proviso  that  if  the  grantor  did 
not  upon  demand  pay  principal  and  interest  the  grantees  might  take 
possession  and  sell  the  goods  by  public  auction  or  private  contract 
upon  such  conditions  and  in  such  manner  as  they  should  think  fit. 
This  bill  was  duly  registered,  but  was  not  re-registered  at  the  end  of 
five  years  or  at  all. 

On  the  23d  of  December,  1882,  the  appellants  threatened  the  debtor 
with  the  action  which  they  brought  on  the  8th  of  January,  1883.  At 
the  end  of  December,  1882,  and  after  this  threat,  it  was  agreed  between 
the  debtor's  son,  Charles  Vaughan,  and  the  landlord  of  Croydon  Villa 
that  the  son  should  be  the  tenant  instead  of  his  father  the  debtor.  At 
this  time  the  debtor  was  paralyzed  and  incapable.  On  the  11th  of 
January,  1883,  the  respondents  served  a  demand  for  the  money  due 
under  the  bill  of  1873,  and  put  a  man  in  possession,  and  a  few  davs 
after  the  respondent,  Samuel  Swire  (brother-in-law  of  Samuel  Vaughan), 
on  behalf  of  the  respondents,  agreed  with  Charles  Vaughan  to  sell  the 
goods  in  question  to  him  for  £250,  and  (though  no  money  passed)  gave 
him  the  following  receipt:  — 

£250.  Manchester,  19th  January,  1883. 

Received  from  Mr.  Charles  Vaughan  the  sum  of  two  hundred  and 
fifty  pounds,  being  the  purchase-money  agreed  to  be  paid  by  him  for 
the  whole  of  the  household  furniture  and  effects  now  being  in,  about,  or 
upon  the  messuage  or  dwelling-house  situate  and  being  Croydon  Villa. 
South  Shore,  Blackpool,  in  the  county  of  Lancaster. 

S.  Swire, 

For  self  and  co-mortgagees. 


496  COOKSON   V.   SWIRE.  [chap.  IV. 

Charles  Vaughan,  not  being  able  to  pay,  executed  a  bill  of  saie  dated 
tne  rJth  of  January,  1883,  whereb}'  be  assigned  the  goods  to  the 
respondents  as  security  for  the  purchase-money.  This  bill  was  duly 
registered.  These  proceedings  were  taken  by  the  respondents  to  pro- 
tect the  furniture  for  the  benefit  of  the  persons  for  whom  the  respondents 
were  trustees. 

The  jury  found  that  the  transaction  between  the  respondents  and 
Charles  Vaughan  was  a  bona  fide  one  and  found  a  verdict  for  the  plain- 
tiffs, the  now  respondents,  and  were  then  discharged  by  consent,  Cave, 
J.,  reserving  the  case  for  further  consideration,  with  liberty  to  him  to 
find  any  further  fact  that  might  be  necessary. 

Upon  further  consideration,  on  the  29th  of  May,  1883,  Cave,  J., 
while  adopting  and  approving  the  finding  of  the  jury  that  the  transac- 
tion with  Charles  Vaughan  was  a  bona  fide  one,  found  as  a  fact  that 
the  goods  were  at  the  time  of  the  execution  in  the  apparent  possession 
of  Samuel  Vaughan,  and  held  that  the  bill  of  1873  was  under  the  Bills 
of  Sale  Acts,  previous  to  1882  void  as  against  the  execution  creditors, 
it  being  necessary  for  the  respondents  in  proving  their  title  to  rely  on 
that  bill ;  and  the  learned  judge  entered  judgment  for  the  defendants, 
the  now  appellants. 

The  Court  of  Appeal,  on  the  6th  of  November,  1883,  held  that  the 
transaction  with  Charles  being  a  bona  fide  one,  the  bill  of  1873  was  on 
the  19th  of  January,  1883,  satisfied,  so  that  the  Bills  of  Sale  Acts  had 
no  application  to  it ;  but  that  if  those  acts  were  applicable,  then  as  a 
matter  of  fact  the  goods  were  not  at  the  time  of  the  execution  in 
the  apparent  possession  of  the  father  Samuel,  but  were  in  the  actual 
and  apparent  possession  of  the  son  Charles.  The  court  therefore 
reversed  the  judgment  of  Cave,  J.,  and  entered  judgment  for  the 
respondents. 

Sir  F.  Herschell,  S.  G.,  and  Arthur  Charles,  Q.  C,  for  the  appel- 
lants. 

Ambrose,  Q.  C,  and  C.  II.  31.  Wharton,  for  the  respondents,  were 
not  heard.  • 

Lord  Blackburn.  I  think  that  in  the  judgment  of  Cave,  J.,  there 
is  only  one  point  (but  that  is  a  very  important  point),  on  which  I  am 
inclined  to  differ  from  him.  The  Court  of  Appeal  indicate  what  in  my 
mind  is  the  true  ground  upon  which  Cave,  J.,  was  wrong  ;  but  they  also 
indicate  a  good  many  other  things  upon  which,  as  the  Lord  Chancellor 
has  said,  if  it  were  necessary  to  decide  upon  them  I  should  certainly  at 
least  require  to  hear  the  other  side  in  support  of  them.  I  need  not  say 
more  than  that.  It  all  turns  in  my  mind  upon  the  construction  of  a 
few  words  in  an  act  of  Parliament,  but  I  will  first  of  all  point  out 
what  I  think  is  the  real  object  of  these  acts  of  Parliament,  before 
coming  to  the  interpretation  of  the  words. 

At  common  law  a  man  might  take  a  security  upon  goods  without 
carrying  away  the  goods  or  taking  possession  of  them  —  he  might  take 
a  sale  of  them  out  and  out,  and  he  might  take  the  legal  property  in 


SECT.  II.]  COOKSON    V.    SWIRE.  497 

them  subject  to  the  power  to  redeem  them  (what  is  commonly  called  a 
mortgage),  without  taking  possession  of  them.  The  law  on  the  subject 
will  be  found  in  Twyne's  Case,  3  Rep.  80;  1  Sin.  L.  C.  (8th  ed.)  1, 
and  the  notes  upon  Twyne's  Case,  but  this  rule  got  established  that 
when  the  goods  were  not  taken  away,  but  were  left  in  the  hands  of  the 
man  who  had  had  them  previously,  that  which  had  been  thought  before 
to  make  the  transaction  void  was  really  no  more  than  evidence  to  go 
to  the  jury  of  fraud  ;  anil  if  a  man  came  forward  suddenly,  when  there 
was  an  execution,  for  instance,  issued  against  the  person  in  possession 
of  the  goods,  and  said,  at  an  antecedent  time  I  had  a  security  upon 
these  goods,  and  I  left  them  in  the  possession  of  the  debtor  all  that 
time,  the  not  having  taken  possession  was  evidence  that  the  thing  was 
a  sham,  —  it  was  not  conclusive  ;  it  was  not  a  matter  of  law.  but  it  was 
evidence  that  the  thing  was  a  sham.  Upon  that  two  evils  arose,  and 
very  important  ones  they  were.  In  the  first  place  it  often  happened 
that  there  was  really  a  sham  put  up  to  endeavor  to  defeat  a  man,  and 
there  was  a  great  quantity  of  perjury,  of  fighting  and  expense,  before 
it  was  proved  to  be  a  sham.  That  was  a  great  evil.  The  other  was 
that  there  were  real  honest  transactions  which  were  asserted  to  be 
shams  when  they  were  not,  and  in  those  cases  there  was  apt  to  be  much 
perjury  and  great  expense  before  it  was  decided.  For  those  reasons  it 
was  thought,  and  reasonably  and  properly  so,  that  it  was  desirable  to 
put  a  stop  to  this. 

That  was  the  beginning  of  the  series  of  Bills  of  Sale  Acts,  the  first 
of  which  was  passed  in  1854,  and  said  this:  Where  there  is  a  bill  of 
sale,  or  where  there  is  a  written  agreement  in  which  it  appears  that  you 
have  got  a  security,  or  even  I  suppose  a  transfer  of  the  whole  property, 
at  all  events  that  you  have  got  a  security,  — a  bill  of  sale,  —  that  shall 
within  a  short  time  be  registered,  and  two  things  are  to  follow  from  it. 
In  the  first  place  its  being  registered  will  put  an  end  to  any  fear  that 
any  one  should  start  forward  afterwards  and  say,  The  transaction  being 
kept  secret  is  a  proof  that  it  was  a  sham  transaction,  for,  it  being 
actually  registered  as  bills  of  sales  are  required  to  be,  it  could  no  longer 
be  secret,  and  there  would  be  no  badge  of  fraud  in  that  respect.  The 
other  was.  if  it  be  not  registered,  then  so  long  as  the  goods  are  in  the 
apparent  possession  of  the  person  to  whom  they  originally  belonged, 
so  long  it  shall  be  void,  as  against  a  certain  class  of  persons,  namely, 
execution  creditors,  and  various  other  persons  that  were  named.  The 
only  thing  that  I  would  say  at  the  outset  upon  this  with  regard  to  the 
1st  section  is,  that  the  first  Bills  of  Sale  Act  applied,  not  only  to  sale- 
and  transfers  by  the  grantor  (the  man  who  had  the  goods)  by  way  of 
security  and  otherwise,  but  also  to  transfers  by  the  sheriff,  when  he  had 
seized  those  goods.  Nobody  for  a  moment  would  suppose  that  it  was 
a  possible  thing  when  the  sheriff  had  seized  the  goods  and  sold  them, 
that  the  sheriff  should  make  out  a  bill  of  sale,  and  that  the  sheriff 
should  keep  possession  —  that  was  out  of  the  question.  But  it  was 
thought,  and  indeed  it  was  found  by  experience,  that  a  very  common 

32 


498  COOKSON    V.    SWIRE.  [CHAP.  IV. 

mode  in  which  a  sham  actually  took  place,  when  there  was  an  execution, 
was  this,  —  that  the  execution  debtor  bought  back  his  own  goods, 
getting  a  man  of  straw  to  come  forward  and  pretend  this,  —  It  is 
I  who  have  bought  them  from  the  sheriff,  and  although  I  have  lent 
money  to  you,  and  you  have  given  me  security,  and  I  let  you  have  the 
goods,  still  it  is  I  who  buy  them  from  the  sheriff.  Consequently  the 
act  of  Parliament  very  judiciously  said  bills  of  sale  shall  be  registered 
as  well  when  thev  are  given  by  the  man  himself,  as  when  the  sheriff  has 
taken  them  in  execution  from  him.  Nothing  of  that  sort  applies  here, 
nothing  arises  here  about  it,  for  no  sheriff  had  anything  to  do  with 
this  matter. 

Now,  coming  to  apply  this  act  to  the  present  case,  we  find  that  in 
1873  the  Reverend  Samuel  Vaughan  was  in  debt.  Mr.  Swire,  who 
seems  to  have  been  his  brother-in-law  and  also  trustee,  I  suppose,  for 
Mrs.  Vaughan,  agreed  to  advance  money  to  pay  off  that  debt,  and  for 
that  purpose,  —  it  was  a  very  proper  thing  to  do,  —  he  said  I  will  take 
the  goods  from  you,  I  will  take  a  security  if  you  like  upon  all  those 
goods,  and  if  you  pay  off  that  security,  well  and  good ;  if  not,  it  is  evi- 
dent that  the  intention  of  Mr.  Swire  was,  that  these  goods  should  be  a 
security  to  him  for  the  money  which  he  had  advanced,  whether  out  of 
his  own  pocket,  or  as  trustee  for  his  sister  we  really  do  not  know,  and 
it  is  not  material  —  he  intended  that  these  goods  should  be  a  security 
for  that  advance,  and  it  was  obviously  the  intention  that  the}'  should 
remain  in  the  Rev.  Samuel  Vaughan's  house  and  be  used  by  the  Rev. 
Samuel  Vaughan  and  his  family  —  in  fact,  be  to  all  intents  and  purposes 
in  the  apparent  ownership  of  the  Rev.  Samuel  Vaughan.  That  bill  of 
sale,  as  was  necessary  under  the  Bills  of  Sale  Act  which  then  existed 
(this  was  in  1873),  was  registered,  and  it  would  therefore  at  the  end  of 
five  \-ears  require  to  be  re-registered,  or  otherwise  it  would  have  the 
same  effect  as  if  it  had  never  been  registered,  and  would  consequently 
be  void  as  against  the  class  of  persons  who  were  named  in  the  acts 
existing  at  that  time.  I  do  not  know  that  it  is  very  material  to  say 
anything  further  about  it  than  that. 

This  security  which  was  taken  by  Mr.  Swire  in  1873  contained  at  the 
end  a  provision  that  if  Mr.  Vaughan  did  not  pay  the  money  owed  when 
a  demand  had  been  made  in  writing,  then  it  should  be  in  the  power 
of  Mr.  Swire  or  his  assigns  to  sell  the  goods  absolutely  by  private 
bargain. 

Now  it  happened  that  at  the  time  when  this  transaction  took  place  it 
became  known  to  people  that  there  was  a  creditor  who  was  likely  to 
come  upon  the  Rev.  Samuel  Vaughan  and  to  seize  his  goods,  or  rather 
not  his  goods  but  the  goods  which  were  in  his  apparent  possession  as  it 
was  said ;  and  people  also  became  aware  that  owing  to  the  neglect  to 
re- register  the  bill  of  sale,  inasmuch  as  the  term  of  five  years  had 
elapsed  in  1878,  that  bill  had  become  an  unregistered  bill  and  was  con- 
sequently void  as  against  those  against  whom  unregistered  bills  of  sale 
were  made  void,  though  not,  under  the  law  as  it  then  stood,  void  as 


SECT.  II.]  COOKSON   V.    SWIRE.  499 

against  anybody  else.  That  being  so,  there  is  no  doubt  in  my  mind 
that  formal  notice  to  Mr.  Vaughan  to  pay  off  the  money  was  given  in 
order  that  Mr.  Swire  should  be  in  a  position  legally  to  sell  the  goods. 
I  have  no  doubt  whatever  that  that  was  done  for  the  very  purpose  and 
object  that  by  selling  those  goods  they  should  be  able  to  defeat  the 
creditor  who  would  come  against  the  Rev.  Samuel  Vaughan  and  would 
seize  those  goods  which  really  and  truly  belonged  to  Mr.  Swire,  —  at 
least  for  all  substantial  purposes  they  belonged  to  him,  because  I  sup- 
pose they  were  mortgaged  to  their  full  value,  —  but  which  had  been  left 
:is  I  have  described  in  the  possession  of  the  Rev.  Samuel  Vaughan. 
There  is  nothing  whatever  illegal,  there  is  nothing  immoral,  there  is 
nothing  improper  in  that.  It  is  conceded  that  it  would  have  been  per- 
fectly good,  when  that  notice  had  been  given,  if  Mr.  Swire,  acting  in 
his  own  interest,  had  come  with  porters  and  taken  the  goods  and  carried 
them  out  of  the  house,  although  that  had  been  done  only  two  minutes 
before  the  sheriff's  officer  had  turned  the  corner  of  the  street  to  come 
and  seize  them  all.  I  make  no  doubt  that  it  was  entirely  with  that 
object  that  the  transaction  took  place  with  Charles  Vaughan,  the  son  of 
the  Rev.  Samuel  Vaughan,  wdio  I  dare  say  had  not  much  money  of  his 
own,  —  probabby  no  immediate  money;  and  Mr.  Swire,  advised  I 
suppose  by  lawyers  that  this  was  the  best  course  to  pursue,  said,  I  will 
sell  them  to  you,  Charles,  as  soon  as  I  have  got  the  right  to  do  it.  You 
cannot  pay  me  I  know,  30U  have  not  got  the  money,  but  I  will  lend 
you  the  money.  I  agree  to  sell  the  goods  to  3-011  and  transfer  the  goods 
to  you,  and  when  they  are  transferred  to  you  I  will  lend  you  the  money 
if  you  will  then  give  me  a  new  bill  of  sale  upon  the  goods  so  as  to 
make  them  a  security  for  the  money  I  lend  you.  I  have  no  doubt  that 
that  which  was  done  in  that  way  was  intended  to  be  done  for  the  very 
purpose  of  defeating  an  execution,  and  of  keeping  these  goods  unsold 
for  the  benefit  of  the  dying  father  and  the  mother  and  the  children,  it 
would  have  been  very  wrong  and  very  improper  to  pretend  to  do  all 
this,  no  doubt,  but  so  far  from  its  being  wrong  or  improper  to  do  it.  I 
think  it  was,  as  I  say,  highly  moral  and  right.  The  question  as  to 
whether  or  no  it  was  a  sham,  the  question  whether  or  no  there  was  really 
a  bona  fide  transaction  to  the  effect  which  I  have  described,  was  left  to 
the  jury,  and  their  finding  is  unimpeached. 

Then  comes  the  question  of  law.  Now,  says  Cave,  J.,  "  they  prove 
an  agreement  between  Charles  Vaughan  and  Mr.  Swire  by  which  the 
property  in  the  goods  was  transferred  from  Mr.  Swire  to  Charles 
Vaughan.  Now  that  has  been  found  by  the  jury  to  be  a  bona  fide 
agreement,  and  consequently  the  effect  of  that  is  to  give  to  Charles 
Vaughan  the  title  which  Swire  had."  Now,  had  that  been  so,  as  at 
present  advised,  I  should  say,  subject  to  what  might  be  said  by  the 
other  side,  if  it  was  necessary  to  hear  them,  that  there  was  an  apparent 
ownership  in  Samuel  Vaughan  at  that  time,  and  I  should  have  said  that 
if  Mr.  Swire  had  agreed  to  transfer  the  property  from  himself  to  Charles 
Vaughan,  Charles  Vaughan  would  be  in  the  same  position  and  no  better 


500  COOKSON    V.    SWIRE.  [CHAP.  IV. 

than  Mr.  Swire.  But  instead  of  thinking  that  it  was  an  agreement  to 
do  that,  I  think  it  was  intended  to  be,  and  was,  an  agreement  not  that 
Mr.  Swire  would  transfer  his  own  right,  after  having  given  the  due 
notice  by  which  he  was  enabled  either,  as  I  said  before,  to  come  with 
porters  and  carry  away  the  goods,  and  so  put  an  end  to  the  matter,  or 
to  sell  the  property  out  and  out  of  the  Rev.  Samuel  Vaughan  in  those 
goods,  —  it  was  not  an  agreement  that  he  would  transfer  his  own  right, 
but  that  he  would  transfer  the  absolute  property  in  the  goods.  What 
Mr.  Swire  had  was  the  goods  subject  to  an  equity  of  redemption; 
what  he  conferred  upon  Charles  Vaughan  was  very  likely  not  of  more 
value,  but  it  was  a  different  thing.  It  was  the  property  in  the  goods 
without  any  equity  of  redemption,  and  if  the  transaction  was  a  bona 
fide  one  (and  I  do  not  myself  see  the  slightest  ground,  when  it  has 
been  explained  as  I  have  explained  it,  for  saying  it  was  not  perfectly 
bona  fide),  I  do  not  see  how  it  comes  within  the  earlier  act.  The 
earlier  act  makes  that  void  as  against  the  holder  of  a  bill  of  sale  and 
his  assigns,  and  those  who  claim  under  him,  but  it  does  not  make  it 
void  as  against  those  who  become  entitled  to  the  goods  by  virtue  of  his 
exercising  the  power  before  ever  the  person's  claim  came  into  existence 
who  had  the  right  to  say  that  the  bill  of  sale  was  void,  and  that  was  not 
until  the  time  of  the  execution,  when  the  sheriff's  officer  came  in.  in  the 
present  case. 

It  seems  to  me,  therefore,  that  upon  that  point,  Cave,  J.,  made  a 
mistake  —  was  under  a  misapprehension.  Upon  the  rest  I  should  be 
inclined  to  agree  with  him.  We  have  not  heard  the  counsel  for  the 
respondents,  and  it  may  be  that  on  some  of  the  other  points  the  Court 
of  Appeal  may  be  right.  I  will  not  say  that  they  are  not,  but  upon 
that  ground  I  think  that  this  was  not  a  case  in  which  under  the  acts 
which  had  been  passed  down  to  1878  (I  do  not  go  further  than  that),  it 
would  have  been  void  as  against  any  one  else.  It  is  said  that  the  act 
of  1882  has  the  effect  of  making  it  void  absolutely,  or  to  a  greater 
extent.  Whatever  effect  that  act  may  have  on  future  bills  of  sale,  as 
far  as  the  present  case  is  concerned,  for  reasons  which  I  do  not  repeat, 
as  they  have  been  stated  by  the  Lord  Chancellor,  and  which  are  satis- 
factory to  my  mind,  I  think  that  it  was  not  intended  to  be  retrospective 
so  as  to  bring  it  into  operation  in  the  present  case. 

For  these  reasons  I  agree  in  the  judgment  which  has  been  proposed. 
Order  appealed  from  affirmed  ;  appeal  dismissed  tcitk  costs.1 

1  The  Earl  of  Selborne,  L.  C,  delivered  a  concurring  opinion,  and  Lokds 
Watson  and  Fitzgerald  also  concurred. 


SECT.  II.]  1NGALLS   V.    HEEEICK,  501 


INGALLS   v.   HERRICK. 

Supreme  Judicial  Court  of  Massachusetts,  November  Term,  1871. 

[Reported  in  108  Massachusetts,  351.] 

Tort  against  the  sheriff  of  Essex  for  the  conversion  of  twenty-one 
bales  of  flocks  of  wool,  attached  on  December  17,  1868,  by  a  deput\r 
of  the  defendant^  as  property  of  William  H.  Lougee,  in  a  suit  against 
Lougee  by  one  of  his  creditors. 

At  the  trial  in  the  Superior  Court,  before  Lord,  J.,  the  plaintiff  in- 
troduced evidence  which  tended  to  show  that  on  December  16,  1868, 
he  bargained  with  Louis  II.  Bosworth,  Lougee's  duly  authorized  agent, 
for  a  purchase  of  the  flocks  at  an  agreed  price  ;  that  he  bought  them  to 
sell  again  ;  that  the  bales  were  numbered  and  marked,  weighed  7.818 
pounds,  were  of  about  the  ordinary  size  of  bales  of  cotton,  and  were 
stored  in  Lougee's  factory  ;  that  he  told  Bosworth  that  he  had  no  place 
of  his  own  to  store  them  in,  and  should  wish  to  have  them  remain  for  a 
while  where  they  were,  and  would  pay  storage  on  them,  and  Bosworth 
agreed  to  this  ;  that  he  also  told  Bosworth  that  he  was  going  to  New 
York  the  next  day,  and  must  have  some  samples  of  the  flocks  to  take 
with  him,  to  resell  them  b}- ;  that  on  the  evening  of  the  same  day,  at 
Lougee's  counting-room  in  Lawrence,  he  received  a  bill  of  parcels  of 
the  flocks,  dated  that  day  and  signed  try  Lougee,  specifying  the  num- 
bers, marks,  and  weights  of  the  bales,  and  acknowledging  receipt  of  the 
agreed  price,  to  wit,  $360.64  for  six  bales,  weighing  2,254  pounds,  at 
16  cents  per  pound,  and  $612.04  for  fifteen  bales,  weighing  5,564 
pounds,  at  11  cents  per  pound  ;  that  at  the  same  time  Bosworth  gave 
him  parcels  of  the  two  kinds  of  flocks  ;  and  that  he  saw  the  flocks  in 
the  store-room  at  the  factory  a  week  or  two  before  December  16,  but 
did  not  see  them  on  that  day,  nor  afterwards,  until  they  had  been  at- 
tached by  the  defendant's  deputy. 

Bosworth  testified,  among  other  things,  "  that  after  the  bargain  was 
made  he  went  to  the  factory  and  examined  the  bales  to  get  the  num- 
ber and  weight  of  each  bale,  and  wrote  the  bill  of  parcels  afterwards 
signed  by  Lougee,  and  delivered  it  to  the  plaintiff;  that  he  opened  two 
of  the  bales  and  took  out  small  quantities  of  the  flocks,  winch  the 
plaintiff  wanted  for  samples'to  sell  by.  and  then  sewed  up  the  bales; 
that  he  met  the  plaintiff  during  the  afternoon,  and  told  him  that  the 
bill  and  the  samples  would  be  ready  for  him  that  evening,  at  Lougee's 
counting-room  ;  and  that  he  gave  these  flocks  to  the  plaintiff  at  the 
time  of  the  delivery  of  the  bill  of  sale." 

This  was  all  the  evidence  of  a  delivery  ;  and  the  judge  ruled  that  it 
would  not  authorize  the  jury  to  find  a  delivery  of  the  goods  as  against 
the  attaching  creditor  of  the  seller,  and  directed  a  verdict  for  the  de- 
fendants.    The  plaintiff  alleged  exceptions. 


502  IN  GALLS    V.    HERRICK.  [CHAP.  IV. 

J.  K.  Tarbox,  for  the  plaintiff. 

S.  B.  Ives,  Jr.,  and  S.  Lincoln,  Jr.,  for  the  defendant. 

Colt,  J.  It  was  ruled  as  matter  of  law,  in  this  case,  that  the 
jury  would  not  be  authorized  upon  this  evidence  to  find  a  delivery  of 
the  baled  flocks,  sufficient  to  pass  a  title  valid  as  against  creditors  of 
the  seller. 

There  was  evidence  tending  to  show  that  the  bargain  for  the  sale 
was  made  with  one  Bosworth,  au  agent  of  the  seller.  A  receipted  bill 
of  parcels,  signed  by  the  seller  himself,  which  contained  a  description 
of  the  bales  by  number,  mark,  and  weight,  was  afterwards  delivered  by 
the  agent  to  the  plaintiff.  The  subject-matter  of  the  sale  was  all  the 
baled  flocks  then  stored  in  the  seller's  factory.  It  was  thus  a  com- 
pleted contract  of  sale,  and  as  between  the  parties  the  title  passed  to 
the  plaintiff.  Was  there  evidence  to  go  to  the  jury  of  a  delivery  suf- 
ficient as  to  creditors?  This  is  the  only  question,  and  in  disposing  of 
it  we  must  take  the  sale  to  have  been  made  in  good  faith  and  for  a 
valuable  consideration. 

Upon  this  question,  there  was  evidence  tending  to  show  that  the 
flocks  were  bought  for  resale ;  that  the  bales  were  large,  not  easily 
moved,  and  requiring  room  for  storage  ;  that  the  plaintiff,  having  no 
convenient  place,  agreed  with  Bosworth,  at  the  time  of  the  bargain, 
to  let  them  remain  where  they  were,  and  pay  storage,  and  directed 
him  to  obtain  samples  of  the  flocks,  which  he,  the  plaintiff,  could  take 
with  him  to  New  York  to  sell  by  ;  and  that  Bosworth  accordingly 
opened  the  bales,  took  out  samples  of  two  kinds  of  flocks,  sewed  up 
the  bales,  and  gave  the  samples  to  the  plaintiff  at  the  time  he  delivered 
the  bill  of  parcels.  The  plaintiff  bought  upon  his  own  previous 
knowledge  of  the  article,  having  seen  the  flocks  at  the  store-room  of 
the  factory  a  week  or  two  before.  The  samples  were  not  required  or 
used  by  him  in  reference  to  his  own  purchase,  and  Bosworth,  in  taking 
them  from  the  bales,  acted  under  the  directions  and  as  the  agent  of 
the  plaintiff,  and  with  reference  to  future  sales  by  him.  It  was  a  sig- 
nificant act  of  ownership  and  possession  on  the  part  of  the  plaintiff, 
after  the  sale  was  agreed  on,  through  Bosworth,  acting  in  this  respect 
as  his  agent.  There  is  something  more,  therefore,  here  disclosed,  than 
a  mere  contract  of  sale  without  delivery  or  possession  under  it.  And 
we  are  of  opinion,  under  the  law  heretofore  laid  down  by  the  court,  that 
the  case  should  have  been  submitted,  with  proper  instructions,  to  the 

3m'y- 

It  was  early  held  that  the  possession  of  personal  chattels  by  the 
vendor  after  an  alleged  sale  is  not  conclusive  evidence  of  fraud. 
Upon  proof  that  the  sale  was  made  in  good  faith  and  for  a  valuable 
consideration,  and  that  the  possession  after  the  sale  was  in  pursuance 
some  agreemenl  not  inconsistent  with  honesty  in  the  transaction, 
the  vendee  might  hold  against  creditors.  Brooks  v.  Bowers,  15  Mass. 
244.  it  was  declared  by  Morton,  J.,  in  Shurtleff  v.  Willard,  19  Pick. 
202,  21  1.  that,  whatever  the  rule  upon  this  point  may  be  in  England 


SECT.  II.]  McKIBBIN    V.    MAKTIX.  503 

or  elsewhere,  it  is  perfectly  well  settled  in  a  series  of  cases  here,  that 
the  possession  of  the  vendor  is  only  evidence  of  fraud,  which,  with  the 
manner  of  the  occupation,  the  conduct  of  the  parties,  and  all  other 
evidence  bearing  upon  the  question  of  fraud,  is  for  the  consideration 
of  the  jury.  It  is  certain  that  slight  evidence  of  delivery  is  sufficient; 
and  if  the  buyer  with  the  consent  of  the  seller  obtains  possession  be- 
fore any  attachment  or  second  sale,  the  transfer  is  complete  without 
formal  delivery.  Shumway  v.  Kutter,  8  Pick.  443.  A  delivery  of  a 
portion  in  token  of  the  whole  is  a  sufficient  constructive  delivery  as 
against  creditors,  although  the  goods  are  in  the  possession  of  various 
persons.  Legg  v.  Willard,  17  Pick.  140.  In  Hardy  v.  Potter,  10 
Gray,  89,  the  jury  were  told  that,  although  the  plaintiff  only  took  a 
bill  of  sale,  yet,  if  prior  to  the  attachment  he  had  been  to  the  place 
where  the  lumber  was,  and  had  exercised  acts  of  ownership  over  it,  by 
virtue  of  his  purchase,  that  would  constitute  a  delivery  of  it  good 
against  a  subsequent  attachment.  And  this  instruction  was  held  not 
open  to  exception,  although  the  evidence  was  that  the  purchaser  had 
only  been  to  Beverly  and  seen  the  lumber  there.  See  also  Phelps  v. 
Cutler,  4  Gray,  137;  Tuxworth  v.  Moore,  9  Pick.  347;  Bullard  v. 
Wait,  16  Gray,  55  ;  Popes  v.  Lane,  9  Allen,  502,  and  11  Allen,  591. 

The  fact  that  the  possession  of  the  property  is  retained  by  the  ven- 
dor by  agreement,  and  does  not  follow  the  bill  of  sale,  is  held  by  this 
court  to  be,  in  most  of  the  cases,  evidence  of  fraud,  to  go  to  the  jury. 
In  many  of  the  States,  the  fraud  is  held  to  be  an  inference  of  law  re- 
sulting inevitably  from  the  possession.  And  such  was  supposed  to  be 
the  earlier  English  rule,  as  laid  down  in  Edwards  v.  Harben,  2  T.  R. 
587  ;  but  the  only  point  there  decided  was,  that  an  absolute  convey- 
ance without  possession,  if  there  be  nothing  but  that,  is  in  point  of 
law  fraudulent.  In  the  more  recent  cases,  it  has  been  declared  that 
the  continued  possession  by  the  vendor,  of  goods  sold,  is  a  fact  to  be 
considered  by  the  jury,  as  evidence  of  fraud,  and  is  not  in  law  a 
fraud  in  itself.  Martindale  v.  Booth,  3  B.  &  Ad.  498.  Benjamin  on 
Sales,  363. 

There  was  evidence  here  of  delivery,  which  should  have  been  sub- 
mitted to  the  jury.  Exceptions  sustained. 


McKIBBIN  v.   MARTIN. 

Pennsylvania  Supreme  Court,  March  2,   1870. 

[Reported  in  64  Pennsylvania  State,  352.] 

Error  to  the  District  Court  of  Philadelphia:  No.  10  and  11,  to  July 
Term,  18G9. 

The  cases,  the  subject  of  these  writs  of  error,  were  two  feigned  issues 
under  the  Sheriffs"  Interpleader  Act,  in  both  of  which  Chambers  Mc- 


504  McKIBBIN    V.    MARTIN.  [CHAP.  IV. 

Kibbin  was  claimant  and  plaintiff ;  Thomas  J.  Martin  was  the  defendant 
in  one  issue,  and  Charles  D.  Kline  in  the  other.  The  issues  depended 
on  the  same  facts,  and  were  tried  together  January  13,  180'J,  before 
Hare,  P.  J. 

The  defendants  had  respectively  recovered  judgments  against  Jere- 
miah and  W.  C.  McKibbin,  who  composed  the  firm  of  J.  &  W.  C.  Mc- 
Kibbin,  and  had  been  proprietors  and  conductors  of  the  Merchants' 
Hotel,  a  large  hotel  in  the  city  of  Philadelphia.  Executions  were  issued 
on  the  judgments,  in  September,  1868,  under  which  the  furniture,  &c, 
in  the  hotel  were  levied  upon  as  their  property  and  claimed  by  the  plain- 
tiff.    The  issues  were  to  try  the  ownership  of  these  goods. 

The  plaintiff  gave  in  evidence  the  following  "Articles  of  agreement 
made  the  11th  day  of  June,  1868,  between  Jeremiah  McKibbin  and 
William  C.  McKibbin,  co-partners  as  J.  &  W.  C.  McKibbin  of  the  one 
part,  and  Chambers  McKibbin  of  the  other.  Whereas,  on  the  first  day  of 
February,  a.  d.  1865,  the  said  Chambers  McKibbin,  being  the  owner  and 
proprietor  at  the  time,  of  the  lease  and  good-will  of  the  Merchants' 
Hotel,  situated  on  the  west  side  of  Fourth  Street,  south  of  Arch  Street, 
in  the  city  of  Philadelphia,  also  of  its  furniture  and  fixtures  of  all  kinds, 
&c,  and  generally  of  all  its  arrangements  and  appurtenances  of*  every 
nature  for  the  transaction  of  the  business  of  hotel-keeping,  on  the  said 
1st  February,  1865,  sold  the  same  to  the  said  J.  &  W.  McKibbin,  for  the 
sum  of  $30,000,  of  which  85,000  were  to  be  paid  in  twenty  days,  and 
$5,000  in  each  of  five  other  payments,  respectively,  in  6,  12,  18,  24,  and 
30  months,  with  interest  for  deferred  time,  from  February  1st,  1865,  for 
each  of  which  payments  the  said  J.  &  W.  McKibbin  gave  to  the  said 
Chambers  McKibbin  their  promissory  note;  and  whereas  the  whole  of 
said  purchase-money  remains  due  and  unpaid,  the  parties  of  the  first 
part  having  wholly  failed  to  pay  any  of  said  notes  or  any  interest 
thereon  ;  and  whereas  in  the  event  of  default  in  their  payment,  it  was 
agreed  that  upon  request  of  said  Chambers  McKibbin,  said  premises 
should  be  reconveyed : 

"  Now,  therefore,  these  presents  testify  that  for  and  in  consideration 
of  the  surrender  and  cancellation  of  the  said  promissory  notes,  and  of  the 
debt  they  represent,  &c.,  and  in  pursuance  of  the  aforesaid  agreement 
and  understanding  at  the  time  of  the  original  purchase,  the  said  parties 
of  the  first  part  have  sold,  &c,  unto  the  said  party  of  the  second  part, 
the  lease  of  the  said  the  Merchants'  Hotel  premises,  together  with  the 
good-will,  fixtures,  and  appurtenances  of  the  business  now  transacted 
in  said  hotel,  and  all  and  singular  the  furniture,  &c,  and  generally  all 
things  for  the  transaction  of  the  business  of  hotel-keeping,  to  them  the 
parties  of  the  first  part  belonging,  and  now  to  said  premises  and  the 
lm>inrss  there  transacted  pertaining." 

Jeremiah  McKibbin,  a  son  of  Chambers,  and  one  of  the  defendants 
in  the  executions,  testified  amongst  other  things:  "Upon  sale,  the 
property,  in  June,  1*868,  passed  into  the  hands  of  my  father,  —  the 
property    described    in    bill    of   sale.      The  'Press'  advertisement  of 


SECT.  II.]  McKIBIJIX    V.    MARTIN.  505 

dissolution,  —  also  in  'Age,'  —  are  authorized  advertisements  of  the 
change.  From  11th  of  June,  18G^,  (J.  McKibbin  carried  on  the 
business  of  the  hotel.  Have  had  no  interest  in  business  sinee  sale. 
Father  has  lived  in  the  hotel  sinee  1<SG5.  lie  has  received  the  income, 
paid  the  bills, and  conducted  the  business  sinee  sale.  land  my  brother 
remained  as  before,  and  I  was  superintendent.  I  have  received  noth- 
ing but  compensation  for  services,  at  the  rate  of  83,500  a  year,  hut 
there  was  no  express  bargain.  Bills  of  hotel  were  made  out  in  name 
of  C  McKibbin  as  soon  as  could  lie  printed.  Bills  are  made  out  every 
da}'  more  or  less.  The  sign  '  Merchants3  Hotel,'  in  front  of  hotel.  No 
sign  put  up  of  C.  McKibbin.  My  father  hoarded  with  me  and  paid  no 
board.  My  mother  had  general  charge  of  house  and  no  hoard  was 
charged.  He  assumed  general  charge  of  business  as  soon  as  sale. 
No  express  contract  has  been  made  with  me.  He  directed  the  payment 
of  hills  and  business  generally.  He  has  sinee  sale  received  proceeds  of 
hotel  and  paid  money  out  when  necessary.  Journal  was  of  J.  &  W.  C. 
McKibbin  up  to  sale,  and  journal  of  C.  McKibbin  after  sale  in  same 
book.  I  do  not  reside  in  hotel.  The  hotel  deals  with  many  people  — 
probably  200  —  and  with  all,  bills  are  made  in  name  of  father  since  sale. 
Boarders  to  firm,  who  are  indebted,  had  to  pa}'  boarding  in  full  to  C. 
McKibbin." 

George  Jacoby  testified  :  "I  was  bookkeeper  for  two  years,  to  middle 
December  last.  We  were  ordered  on  16th  of  June  to  open  new  set 
of  books,  and  did  so  in  name  of  C.  McKibbin.  From  that  time  he 
conducted  the  business.  '  Merchants'  Hotel '  is  the  only  sign  that  was 
on  the  hotel  for  two  years  ;  was  no  sign  of  J.  &  W.  C.  McKibbin.  Busi- 
ness was  transacted,  hills  printed,  and  receipted  and  rendered  in  name 
of  C.  McKibbin.  Several  were  rendered  in  name  of  old  firm  and  were 
sent  hack  for  correction.  Cash-notes,  checks,  &c,  were  signed  by  C. 
McKibbin. 

The  advertisements  referred  to  in  the  testimony  of  Jeremiah  McKibbin 
are  as  follows  :  — 

The  co-partnership  heretofore  existing  between  the  subscribers  in 
the  business  of  conducting  the  Merchants'  Hotel  of  Philadelphia  is 
dissolved,  they  having  disposed  of  their  interest  therein  to  Chambers 
McKibbin.  Jeremiah  McKibbin, 

W.  C.  McKibbin. 

The  undersigned  has  again  hecome  owner  of  the  Merchants'  Hotel, 
and  will  hereafter  conduct  and  continue  the  business.  He  invites  a  con- 
tinuance of  its  former  patronage.  Chambers  McKibbin. 

The  court  submitted  the  question  of  good  faith  to  the  jury,  and  re- 
served the  following  point  :  "  Whether  under  all  the  evidence  there  was 
such  actual,  visible,  notorious  delivery  and  change  of  possession  from 
the  sons  to  the  father  of  the  furniture  as  would  be  valid  in  law  against 
the  creditor  of  the  vendor." 


506  McKlBBIN    V.    MARTIN.  [CHAP.  IV. 

The  jury  found  for  the  plaintiff.  The  court  afterwards  entered  judg- 
ment for  defendant  in  the  feigned  issue,  on  the  point  reserved. 

The  plaintiff  took  out  a  writ  of  error  in  each  case,  and  assigned 
the  entering  of  judgment  for  the  defendant  on  the  reserved  point,  for 
error. 

A.  MeClure  and  T.  Cuyler,  for  plaintiff  in  error. 

T.  J.  Diehl  and  P.  Archer,  Jr.  (with  whom  was  L.  C.  Cassidy), 
for  defendants  in  error. 

The  opinion  of  the  court  was  delivered  by 

Sharswood,  J.  There  are  probably  no  more  difficult  and  embarrass- 
ing questions  than  those  which  relate  to  the  respective  provinces  of  the 
court  and  of  the  jury  to  determine  what  is  law  and  what  is  fact.  It 
would  require  a  volume  to  consider  the  subject  in  all  its  bearings,  and 
deduce  accurate  and  intelligible  principles  from  the  great  mass  of  the 
decided  cases,  and  a  philosophical  treatise  on  this  important  head  is 
still  I  think  a  desideratum  of  our  legal  literature.  There  are  undoubt- 
edly some  rules  clearly  established  —  these  are  plain  lines  of  demarca- 
tion, but  there  is  a  border-land  of  controversy  in  which  the  opposing 
principles  seem  to  be  in  continual  conflict,  the  victory  sometimes  inclin- 
ing to  one  side  and  sometimes  to  the  other.  This  conflict  often  has 
ended  in  a  reasonable  compromise  by  which  the  question  has  become 
what  is  termed  a  mixed  question  of  law  and  fact,  to  be  submitted  to  the 
decision  of  the  jury  under  proper  instructions  from  the  court. 

One  of  the  questions  upon  which  difficulty  has  often  arisen  is  fraud  in 
the  sale  or  transfer  of  chattels  under  the  Statute  of  13  Eliz.  c.  5,  Roberts's 
Dig.  2L>">.  Such  fraud  may  be  either  actual  or  legal.  Actual  fraud  or 
fraud  in  fact  consists  in  the  intention  to  prevent  creditors  from  recover- 
ing their  just  debts  by  an  act  which  withdraws  the  property  of  a  debtor 
from  their  reach.  Fraud  in  law  consists  in  acts  which,  though  not 
fraudulently  intended,  yet  as  their  tendency  is  to  defraud  creditors  if 
they  vest  the  property  of  the  debtor  in  his  grantee,  are  void  for  legal 
fraud,  which  is  deemed  tantamount  to  actual  fraud,  full  evidence  of 
fraud,  and  fraudulent  in  themselves,  the  policy  of  the  law  making  the 
acts  illegal :  Baldwin,  J.,  in  Hanson  v.  Eustace,  2  How.  088.  Actual 
fraud  is  always  a  question  for  the  jury  ;  legal  fraud,  where  the  facts 
are  undisputed  or  are  ascertained,  is  for  the  court.  Dornick  v.  Reichen- 
back,  10  S.  &  R.  90.  '*  As  remarked  b}r  an  eloquent  writer,"  says  Chief 
Justice  (iil)son,  "  these  statutes  of  Elizabeth  produce  the  most  benefi- 
cial effects  by  placing  parties  under  a  disability  to  commit  fraud  in  re- 
quiring for  the  characteristics  of  an  honest  act  such  circumstances  as 
none  but  an  honest  intention  can  assume  ;  and  the}'  seem  to  have  been 
expressed  in  general  terms  purposely  to  leave  room  for  a  large  inter- 
pretation by  the  judges,  who,  in  accordance  with  the  spirit  rather  than 
the  words,  have  engrafted  on  them  such  artificial  presumptions  and 
Legal  intendments  as  are  ordinarily  subjects  of  judicial  construction.  In 
facf  Mi.  acl  exclusively  by  presumptions,  not  always  inflexible  indeed, 
but  souk  runes  amounting  to  legal  conclusions."  Avery  v.  Street,  6 
Watts,  247. 


SECT.  II.]  McKIBBIN   V.   MARTIN.  507 

In  Twyne's  Case,  which  came  up  in  the  Star  Chamber  in  44  Eliz., 
and  is  reported  3  Rep.  80  b,  Moore  638,  one  of  the  badges  of  fraud  was 
declared  to  be  that  tkthe  donor  continued  in  possession,  and  used  the 
goods  sold  or  given  as  his  own  ;  and  by  reason  thereof  he  traded  and 
trafficked  with  others,  and  defrauded  and  deceived  them."  No  distinc- 
tion was  attempted  between  actual  and  legal  fraud,  and  the  tribunal  for- 
bade any  question  as  to  law  and  fact.  It  is  unnecessary  to  trace  the 
decisions  in  England.  Clow  v.  Woods,  5  S.  &  R.  275,  decided  by  this 
court  in  1819,  is  the  Magna  Charta  of  our  law  upon  this  subject.  The 
principles  settled  in  that  case  have  been  recognizee!  and  affirmed  l>v  a 
head-roll  of  subsequent  decisions,  which  it  would  be  a  mere  affectation 
of  learning  to  cite.  Without  adverting  to  other  points,  it  established 
that  retention  of  possession  was  fraud  in  law  wherever  the  subject  of 
the  transfer  was  capable  of  delivery  and  no  honest  and  fair  reason  could 
be  assigned  for  the  vendor  not  giving  up  and  the  vendee  taking  posses- 
sion. Since  then  the  courts  have  been  principally  occupied  in  deter- 
mining when  the  evidence  of  change  of  possession  was  such  as  to  present 
a  question  of  law  for  the  court  or  of  fact  for  the  jury. 

No  point  as  to  actual  fraud  arises  on  this  record.  That  was  sub- 
mitted  to  the  jury,  and  decided  by  them  in  favor  of  the  plaintiff.  The 
whole  question  of  legal  fraud,  however,  was  reserved  and  judgment  en- 
tered on  the  reservation  for  the  defendant.  If  there  was  evidence  from 
which  a  jury  would  have  been  justified  in  inferring,  under  instructions 
from  the  court,  that  there  had  been  in  point  of  fact  an  actual  and  exclu- 
sive change  of  possession,  it  ought,  as  we  think,  to  have  been  submitted 
to  them. 

The  reserved  point  comprehends  two  questions,  which,  in  the  consid- 
eration of  the  case,  it  will  be  best  to  keep  distinct.  First,  was  there 
evidence  from  which  the  jury  would  be  permitted  to  find  such  a  delivery, 
actual  or  constructive,  as  the  law  requires  to  make  the  sale  valid  as 
against  creditors?  Second,  was  the  possession  taken  by  the  vendee 
exclusive  of  the  vendors  or  concurrent  with  them,  in  point  of  law? 

1.  Whenever  the  subject  of  the  sale  is  capable  of  an  actual  delivery, 
such  delivery  must  accompany"  and  follow  the  sale  to  render  it  valid 
against  creditors.  The  court  is  the  tribunal  to  judge  whether  there  is 
sufficient  evidence  to  justify  the  inference  of  such  a  delivery.  If  there 
is  any  question  upon  the  evidence  as  to  the  facts,  or  resting  upon  the 
credibility-  of  witnesses,  the  determination  of  that  must  be  referred  of 
course  to  the  jury.  But  if  not,  it  is  incumbent  upon  the  court  to  decide 
it.  either  by  a  judgment  of  nonsuit  or  a  binding  direction  in  the  charge. 
Young  v.  McClure,  2  W.  &  S.  1 17  :  McBride  >'.  McClelland,  6  id.  9  1  ; 
Milne  v.  Henry,  1  Wright.  352;  Dewart  v.  Clement,  12  id.  413.  But 
it  often  happens  that  the  subject  of  the  sale  is  not  reasonably  capable 
of  an  actual  delivery,  and  then  a  constructive  delivery  will  be  sufficient. 
As  in  the  case  of  a  vessel  at  sea,  of  goods  in  a  warehouse,  of  a  kiln  of 
bricks,  of  a  pile  of  squared  timber  in  the  woods,  of  goods  in  the  posses- 
sion of  a  factor  or  bailee,  of  a  raft  of  lumber,  of  articles  in  the  process 


508  McKIBBIN   V.    MARTIN.  [CHAP.  IV. 

of  manufacture,  where  it  would  be  not  indeed  impossible,  but  injurious 
and  unusual  to  remove  the  property  from  where  it  happens  to  be  at  the 
time  of  the  transfer.  Clow  6'.  Woods,  5  S.  &  R.  275  ;  Cadbury  v.  Nolen, 
5  Barr,  320  ;  Linton  v.  Butz,  7  id.  89  ;  Haves  v.  Hunsicker,  2  Casey, 
58  ;  Chase  v.  Ralston,  6  id.  539  ;  Barr  v.  Reitz,  3  P.  F.  Smith,  256  ; 
Ben  ford  v.  Schell,  5  id.  393.  In  such  cases  it  is  only  necessary  that 
the  vendee  should  assume  the  control  of  the  subject  so  as  reasonably  to 
indicate  to  all  concerned  the  fact  of  the  change  of  ownership.  Where 
nothing  of  the  kind  has  taken  place,  it  is  the  duty  of  the  court  to  pro- 
nounce a  mere  symbolical  delivery  to  be  insufficient ;  but  where  there 
is  evidence  of  such  assumption  of  control,  it  is  for  the  jury  to  sa}' 
whether  it  was  bona  fide  or  merely  colorable,  and  whether  it  was  enough 
to  give  notice  to  the  world.  The  question  in  such  case  is,  did  the  ven- 
dee do  all  that  he  might  reasonably  be  expected  to  do  in  the  case  of  a 
real  and  honest  sale?  In  Barr  v.  Reitz,  3  P.  F.  Smith,  25G,  the  rule  was 
clearly  expressed  in  the  opinion  of  the  court  by  Mr.  Justice  Agnew. 
"  In  considering  the  question  what  is  an  actual  delivery,  the  nature  of 
the  property  and  circumstances  attending  the  sale  must  be  taken  into 
the  account.  We  are  not,  in  carrying  out  a  mere  rule  of  policy,  to  con- 
found all  distinctions  between  that  which  is  capable  of  easy  delivery 
and  that  which  is  not.  Squared  timber  lying  in  the  woods,  or  piles  of 
boards  in  a  yard,  are  incapable  of  the  same  treatment  as  a  piece  of 
a  cloth,  or  a  horse.  So  there  are  many  cases  which  allow  the  force 
of  those  circumstances,  which  take  away  any  false  color  or  appear- 
ance of  ownership  remaining  in  the  seller."  Then,  after  citing  a  number 
of  decisions,  it  is  added  :  "  But  without  affirming  these  doctrines  to  the 
extent  these  cases  might  seem  to  warrant,  it  is  sufficient  to  say  they  are 
illustrations  of  the  principle  we  have  stated,  that  the  circumstances  may 
prevent  the  court  from  pronouncing  it  a  fraud,  per  se,  and  carry  the 
case  to  the  jur}'  on  the  facts  with  proper  instruction  from  the  court  on 
the  law,  if  the  jury  find  the  delivery  of  possession  merely  formal  or  con- 
structive." The  distinction  founded  upon  the  principle  here  slated 
between  a  question  of  law  and  one  of  fact,  may  be  illustrated  by  a 
familiar  example.  Upon  the  sale  of  a  single  board,  or  of  a  cartload  of 
boards,  it  would  not  do  to  set  up  a  constructive  delivery  by  marking, 
and  letting  it  remain  where  it  was  until  it  was  convenient  to  remove  it. 
The  court  would  be  bound  to  hold  as  matter  of  law,  that  such  articles 
were  capable  of  actual  delivery.  But  it  would  be  different  with  a  board- 
yard,  filled  with  man}-  piles  of  lumber.  There  the  circumstances  are 
such  as  to  render  an  actual  delivery  and  removal  impracticable,  or  at 
least  injurious  and  expensive.  The  vendee  must  assume  the  control, 
and  do  all  that  an  honest  man  would  reasonably  be  expected  to  do  to 
advertise  the  public  of  the  sale. 

This  seems  to  be  just  the  difference  between  the  ease  of  Steelwagon 
v.  Jeffries,  8  Wright,  407,  upon  which  the  court  below  relied,  and  the 
evidence  as  it  appears  on  this  record.  That  was  the  sale  of  the  furni- 
ture of  a  dwelling  house.     Nothing  is  easier  than  to  remove  it  to  another 


SECT.  II.]  McKIBBIN    V.    MABTIN.  509 

house,  or  if  that  be  not  necessary,  for  the  vendor  to  leave  the  house  and 
tlic  vendee  to  take  possession  with  all  the  ordinary  indicia  of  owner- 
ship. That  is  the  ground  upon  which  the  present  Chief  Justice  placed 
that  determination.  "  Why,"  says  he,  "  is  not  the  transfer  of  house- 
hold property  to  be  actual  and  exclusive  like  that  of  any  other  personal 
property?  It  is  as  capable  of  manual  occupancy  and  removal  as  almost 
any  other  kind,  if  the  sale  be  actual  it  usually  is  removed:  if  it  be 
only  for  the  purpose  of  securing  it  against  creditors,  why  shall  it  not 
stand  on  the  same  platform  with  other  property,  capable  of  delivery  and 
change  of  possession  ?  "  But  the  circumstances  of  a  large  establishment 
like  the  "  Merchants'  Hotel  "  are  entirely  different.  Here  are  many  hun- 
dred lodging-rooms,  parlors,  and  sitting-rooms,  besides  the  culinary 
department  with  its  necessary  offices,  all  fully  furnished.  To  what 
other  building  can  the  vendee  remove  them,  or  at  least  without  great 
deterioration  and  expense?  They  are  valuable  mainly  for  the  purpose 
for  which  they  are  used  and  in  the  place  where  they  are  situated.  It  is 
enough  that  the  vendee  assume  the  direction  and  control  of  them,  and 
in  such  an  open,  notorious  manner  as  usually  accompanies  an  honest 
transaction.  Whether  all  was  done  that  ought  to  have  been  done  in 
this  instance,  and  whether  the  change  of  possession  was  real  and  bona 
fide —  not  merely  colorable  and  deceptive  —  leaving  the  actual  posses- 
sion and  control  in  the  vendors,  were  questions  of  fact  which  ought  to 
have  been  submitted  to  the  jury. 

2.  But  the  law  undoubtedly  is,  that  not  only  must  possession  be  taken 
by  the  vendee,  but  that  possession  must  be  exclusive  of  the  vendor.  A 
concurrent  possession  will  not  do.  "  There  cannot  in  such  case,"  said 
Mr.  Justice  Duncan,  "be  a  concurrent  possession  ;  it  must  be  exclusive, 
or  it  would  by  the  policy  of  the  law  be  deemed  colorable."  Clow  v. 
Woods,  5  S.  &  R.  287.  And  again,  in  Babb  v.  Clemson,  10  id.  428: 
"  There  cannot  be  a  concurrent  possession  in  the  assignor  and  assignees  ; 
it  must  be  exclusive,  or  it  is  deemed  colorable  and  fraudulent.  To  de- 
feat the  execution,  there  must  have  been  a  bona  fide  substantial  change 
of  possession.  It  is  mere  mockery  to  put  in  another  person  to  keep 
possession  jointly  with  the  former  owner.  A  concurrent  possession 
with  the  assignor  is  colorable."  But  what  is  the  concurrent  possession 
which  will  be  deemed  such  as  matter  of  law?  Evidently  as  owner,  or 
accompanied  with  the  ordinary  indicia  of  ownership  —  such  as  will 
lead  any  person  not  in  the  secret  to  infer  that  there  has  been  no  actual 
change.  The  vendor  must  appear  to  occupy  the  same  relation  to  the 
property  as  he  did  before.  In  such  a  case  the  court  must  pronounce  it 
fraudulent  and  colorable  per  se.  We  have  been  referred  to  three  cases 
only  in  our  books  which  were  determined  on  this  ground.  These  wire  all 
of  the  character  I  have  stated.  Hoffner  v.  (lark.  "»  Whart.  545  :  Brawn 
v.  Keller,  7  Wright,  104  ;  Steelwagon  v.  Jeffries,  8  id.  407.  Certainly  it 
may  be  considered  as  settled  by  abundant  authority  in  this  court  that 
where  there  has  been  a  sufficient  actual  or  constructive  delivery  to  the 
vendee,  and  he  is  in  possession,  the  fact  that  the  vendor  is  employed  as 


510  McKIBBIN   V.    MARTIN.  [CHAP.  IV. 

a  clerk  or  a  servant  about  the  establishment,  in  a  capacity  which  holds 
out  no  indicium  of  ownership,  does  not  constitute  such  a  concurrent 
possession  as  the  law  condemns.  In  such  cases  it  is  a  question  for  the 
jury  whether  the  change  of  possession  has  been  actual  and  bona  fide  — 
not  pretended,  deceptive,  and  collusive.  If  there  are  facts  tending  to 
show  that  he  had  a  beneficial  interest  in  the  business  ;  that  the  proceeds 
of  it  went  to  him  beyond  a  reasonable  compensation  for  his  services  ; 
that  he  had  an  unlimited  power  to  draw  upon  the  till ;  or  that  with  the 
knowledge  of  the  vendee  he  took  inone}*  to  pa}-  his  own  debts  —  these 
are  facts  for  the  jury.  I  will  refer  to  a  few  of  the  cases  which  sustain 
this*  view.  Thus  in  McVicker  /•.  May,  3  Barr,  224,  a  sale  by  a  father  to 
a  son  ;  when  the  son  had  removed  to  another  tavern-stand  the  father 
continued  to  live  with  him,  and  was  employed  about  the  house  as  a  ser- 
vant. -•  When  the  son  opened  the  new  tavern,"  say  the  court,  "  his 
mother  and  sister  kept  house  for  him,  and  his  father  did  jobs  ;  but  the 
son's  possession  and  use  of  the  goods  were  exclusive.  But  if  mere  co- 
habitation were  a  badge  of  fraud,  a  father's  sale  to  his  unmarried  son 
would  seldom  be  sustained.  It  certainly  was  not  necessary  for  the  son 
to  turn  his  father  out  of  doors."  Forsyth  v.  Matthews,  2  Harris,  100,  as 
explained  by  Mr.  Justice  Lowrie,  before  whom  the  case  had  been  tried 
below,  2  Case}*,  74,  was  a  sale  by  a  son  to  his  father,  and  though  the 
business  continued  to  be  conducted  in  the  same  place  and  with  the  as- 
sistance of  the  son,  yet  there  being  evidence  of  an  actual  transfer  of  the 
possession  and  control  of  the  property,  the  sale  was  sustained.  Childs 
v.  Simmons,  an  unreported  case,  cited  2  Case}',  74  ;  the  transfer  was  by 
a  storekeeper  to  his  clerk,  the  vendor  continued  to  aid  in  the  store,  but 
the  sign  was  changed,  and  the  sale  was  upheld.  Hugus  v.  Robinson, 
12  Harris,  9  ;  the  subject  was  a  drugstore.  The  vendee  bought  it  for  his 
son,  who  had  been  a  clerk  and  apprentice  of  the  vendor,  and  put  him  in 
possession.  The  vendor  attended  the  store  very  much  as  before,  and 
the  signs  were  not  changed.  It  was  left  as  a  question  of  fact,  to  the 
jury,  and  the  judgment  was  affirmed.  In  Dnnlap  v.  Bournonville,  2 
Casey,  72,  two  brothers  transferred  a  coachmaker's  establishment  to  a 
third,  and  the  vendors  remained  in  the  capacity  of  foremen.  It  was  held 
that  it  ought  to  have  been  submitted  to  the  jury.  Chief  Justice  Thomp- 
son has  said  that  this  case  stands  on  the  very  outer  verge  of  settled 
principles,  but  on  its  facts  is  still  within  them  :  8  Wright,  412.  In  Bil- 
lingsley  v.  White,  9  P.  F.  Smith,  464,  two  partners  sold  out  a  store  of 
goods  to  the  brother  of  one  of  them.  One  of  the  vendors  continued  in 
the  store  as  a  hired  hand.  "  If,"  said  Mr.  Justice  Williams,  "  Billings- 
ley's  acts  and  declarations  as  a  salesman  had  been  such  as  to  leave  it 
doubtful  whether  he  was  acting  as  owner  or  agent,  then  his  presence 
and  connection  with  the  goods  would  have  been  such  evidence  of  re- 
tained possession  as  to  render  the  sale  fraudulent.  But  if  his  acts 
and  declarations  were  professedly  and  apparently  those  of  a  mere  agent, 
and  were  so  understood  by  the  parlies  with  whom  lie  dealt,  as  all  the 
evidence  tends  to  show,  then  they  constituted  no  such  badge  of  fraud 


SECT.  III.]  LANFEAR   V.    SUMNER.  511 

or  evidence  of  retained  possession  as  would  justify  the  court  in  declaring 
the  sale  fraudulent." 

1  frankly  confess  that  I  have  not  regarded  this  line  of  decisions  with 
favor.  Punlap  v.  Bournonville  was  tried  before  me  in  the  District  <  lourt, 
and  I  entered  the  judgment  of  nonsuit,  which  was  there  reversed.  I 
dissented  from  the  determination  in  Billingsley  v.  White,  because  I  was 
afraid  that  it  went  a  step  further  than  any  of  the  preceding  cases  in  re- 
cognizing the  right  of  the  vendee  to  employ  the  vendor  as  his  agent  to 
conduct  the  business.  Perhaps  it  does  not  go  that  far.  But  I  have 
been  too  long  on  the  bench  —  now  nearly  twenty-five  3  ears  —  not  to 
have  learned  this  lesson,  that  a  judge  has  no  right  to  adhere  to  his  own 
favorite  opinions,  after  the}'  have  been  reversed  or  overruled.  It  is  his 
duty  to  administer  justice  according  to  the  law  as  it  is  settled  —  not  ac- 
cording to  his  own  notions  of  what  it  ought  to  be.  Neminem  oportet 
esse  supientiorem  legibus :  no  man  out  of  his  own  private  reason  ought 
to  be  wiser  than  the  law,  which  is  the  perfection  of  reason,  says  Lord 
Coke,  1  Inst.  97,  b. 

Judgment  reversed,  and  venire  facias  de  novo  aicarded.1 


SECTION    III. 

How  Far  Delivery  is  Essential  to  the  Transfer  of  Title. 

AMBROSE  LANFEAR  v.   CHARLES  P.    SUMNER. 

Supreme  Judicial  Court  of  Massachusetts,  March  Term,   1821. 

[Reported  in  17  Massachusetts,  110.] 

Trover  for  the  conversion  of  one  hundred  chests  of  young  hyson 
and  fifty  chests  of  hyson  tea,  averred  to  be  the  property  of  the  plain- 
tiff. Trial  on  the  general  issue,  before  the  Chief  Justice,  November 
term,  1819. 

The  plaintiff,  to  prove  his  property,  produced  in  evidence  the  fol- 
lowing paper:  "For  value  received,  I  hereby  assign  and  set  over  to 
Ambrose  Lanfear,  and  to  his  assigns,  one  hundred  chests  of  voting 
hyson  tea.  and  fifty  chests  of  hyson  tea.  shipped  at  Canton,  by  Ben- 
jamin C.  Wilcocks,  on  board  of  the  ship  '  Osprey,'  Captain  Brown, 
bound  to  Boston,  being  my  property  and  consigned  to  me.  Phila- 
delphia, July  2d,  1819.     William  Wain." 

The  plaintiff  was  the  agent  of  the  house  of  Thomas  Wilson  &  Co., 
merchants  in  England,   to  whom  the   said   Wain  was  indebted    in  a 

1  For  .-i  concise  statement  of  the  law  in  the  several  States  as  to  fraudulent  retention 

of  possesion  by  the  seller,  see  Benjamin  on  Sales  (Heunett's  ed.,  1S'J2),  p.  458. 


512  LANFEAR   V.    SUMNER.  [dlAP.  IV. 

much  larger  sum  than  the  value  of  the  teas.  By  the  testimony  of  the 
said  Wain,  and  other  testimony  in  the  case,  it  appeared  that  the  above- 
recited  paper  was  executed  and  delivered  to  the  plaintiff  before  two 
o'clock  p.  m.  of  the  said  2d  of  July.  No  money  was  paid  by  the  plain- 
tiff, nor  any  discharge  executed  of  the  debt  due  to  said  Wilson  &  Co., 
or  of  any  part  thereof. 

The  action  was  defended  under  the  said  Sumner,  who,  as  a  deputy 
sheriff  of  Suffolk,  had  attached  the  same  teas  at  the  suit  of  James  & 
Thomas  IT.  Perkins  &  Co.,  merchants  in  Boston,  and  creditors  to  Wain 
to  a  large  amount,  upon  bills  of  exchange  drawn  upon  him  and  by  him 
accepted.  The  attachment  by  the  defendant  was  made  on  the  same  sec- 
ond of  July,  at  half  an  hour  past  five  o'clock  in  the  afternoon  ;  and  pos- 
session of  the  teas  was  taken  by  him. 

It  appeared  that  the  paper  aforesaid,  purporting  to  be  an  assignment 
of  the  teas  in  question  to  the  plaintiff,  wafe  by  him  transmitted  to  John 
Dorr,  merchant  in  Boston,  as  soon  as  the  course  of  the  mail  would  ad- 
mit, and  was  received  by  Dorr  on  the  5th  of  July,  who,  within  an  hour 
after  the  receipt  of  the  same,  made  demand  of  the  teas,  by  virtue  of  an 
authority  given  by  the  plaintiff  on  the  back  of  the  paper  ;  but  he  did  not 
obtain  possession. 

It  appeared  that  the  teas  arrived  at  Boston,  in  the  ship  "  Osprey,"  a 
day  or  two  before  the  said  2d  of  July,  consigned  by  the  said  Wilcocks 
to  the  said  J.  &  T.  H.  Perkins  &  Co.,  on  the  account  and  risk,  and  for 
the  use  of  the  said  Wain  ;  and  the  said  Perkins  &  Co.  had  entered 
them  in  the  custom-house,  and  had  given  bonds  for  the  duties  thereon. 
An  offer  was  made  by  Dorr,  in  behalf  of  the  plaintiff,  to  indemnify  them 
against  their  said  bonds,  and  to  pay  all  further  charges  thereon. 

A  verdict  was  taken  for  the  plaintiff  by  consent,  to  be  set  aside  if  the 
action  could  not  be  maintained  on  the  foregoing  facts,  and  a  nonsuit 
entered  ;  otherwise  judgment  was  to  be  rendered  on  the  verdict,  with 
additional  interest. 

Prescott  and  Webster,  for  the  plaintiff. 
Hubbard,  for  the  defendant. 
Jackson,  J.,  delivered  the  opinion  of  the  court. 

Considering  this  case  in  the  most  favorable  view  for  the  plaintiff,  it 
is  the  case  of  two  creditors,  each  endeavoring  to  secure  his  debt  out  of 
the  same  fund.  Neither  party  had  notice  of  the  measures  adopted  by 
the  other  ;  but  each  was  using  his  diligence  fairly,  for  the  purpose  of 
obtaining  payment  of  a  just  debt.  The  question  is,  Which  acquired  the 
best  legal  title?  In  this  statement  of  the  case,  we  consider  Messrs. 
Wilson  &  Co.,  for  whom  the  plaintiff  was  agent,  as  the  real  plaintiffs, 
and  the  Messrs.  Perkins  &  Co.,  who  caused  the  attachment  to  be  made, 
as  the  real  defendants. 

The  conveyance,  relied  on  by  the  plaintiff,  was  intended  as  a  pay- 
ment, to  the  amount  of  what  the  goods  should  produce  ;  or  as  security 
of  a  debt  due  from  Wain  to  Wilson  &  Co. 

But  it  is  objected  that  this  consideration  of  the  conveyance  does  not 


SECT.  III.]  LANFEAB   V.    SUMNEE.  513 

appear  in  the  instrument;  that  there  was  no  discharge  of  the  debt ;  no 
receipt  for  the  goods,  with  an  obligation  to  account  for  the  proceeds  ; 
jiiid  no  writing  whatever  showing  the  agreement  which  is  said  to  have 
been  made  between  the  parties;  hut  that  the  instrument  purports  to  be 
an  ahsolute  conveyance  by  Wain,  for  a  full  price  received,  which  must 
have  operated  as  a  fraud  upon  all  the  other  creditors  of  Wain. 

These  objections  are  certainly  entitled  to  much  consideration;  but 
there  is  another  defect  in  the  plaintiff's  title,  which  we  think  fatal, 
and  that  is  the  want  of  a  delivery  to  him,  in  pursuance  of  the  supposed 
conveyance. 

A  few  hours  after  this  conveyance  was  made  in  Philadelphia,  the  de- 
fendant attached  the  goods  in  Boston.  The  attaching  creditors  are  to 
be  considered  as  purchasers  for  a  valuable  consideration,  and,  in  the 
present  case,  as  purchasers  bona  fide,  and  without  notice  of  the  prior 
conveyance  to  the  plaintiff.  The  defendant  took  possession  under  their 
title;  and  the  plaintiff  never  acquired  possession. 

The  general  rule  is  perfectly  well  established,  that  the  delivery  of 
possession  is  necessary  in  a  conve}ance  of  personal  chattels,  as  against 
every  one  but  the  vendor.  When  the  same  goods  are  sold  to  two  dif- 
ferent persons,  by  conveyances  equally  valid,  he  who  first  lawfully 
acquires  the  possession,  will  hold  them  against  the  other.  This  prin- 
ciple is  recognized  in  the  case  of  Lamb  et  al.  v.  Durant,  12  Mass.  Rep. 
54,  and  in  Caldwell  et  al.  v.  Ball,  1  D.  &  E.  205.  The  latter  indeed 
was  a  case,  not  of  actual  deliver}'  of  goods  to  either  party,  but  of 
delivery  of  the  bill  of  lading.  There  were  two  bills  of  lading,  signed  at 
different  times  b}T  the  master  of  the  ship  ;  and  the  party  who  first 
obtained  one  of  them  by  a  legal  title  from  the  owner  of  the  goods, 
was  held  to  have  the  best  right,  although  the  bill  of  lading,  under 
which  he  claimed,  was  made  the  last.  The  indorsement  and  delivery 
of  the  bill  of  lading,  in  such  a  case,  is  equivalent  to  the  actual  delivery 
of  the  goods. 

This  is  also  the  rule  of  the  civil  law.  When  the  same  thing  is  sold 
to  two  different  persons,  "  Manifesti  juris  est,  cum.  cui  priori  traditum 
est,  in  detinendo  dominio  esse  potiorem."  Cod.  3,  32,  15.  So  Voet 
ad  Pand.  lib.  6,  tit.  1,  §  20,  "Ad  vindicationem  rei  duobus  separatim 
diverso  tempore  distractoe,  non  is  cui  priori  vendita,  sed  cui  (pretio 
soluto,  vel  fide  de  eo  habita)  prius  est  tradita,  admittendus  est." 
And  Pothier,  in  the  place  cited  in  the  argument,  Vente,  No.  318, 
320,  states  the  same  principle  ;  and  puts  the  case  of  a  sale  without 
delivery,  and  a  subsequent  attachment  by  the  creditors  of  the  vendor. 
who,  he  says,  would  hold  the  goods  against  such  a  purchaser. 

There  are,  indeed,  in  the  civil  lawr,  various  modes  of  taking  or  de- 
livering possession  ;  that  is,  different  acts,  which  are  equivalent  to 
actual  possession  ;  resembling,  in  our  law,  the  acknowledgment  and 
registry  of  a  deed  conveying  land  ;  receiving  the  keys  of  the  warehouse, 
in  which  goods  are  deposited  ;  and  the  case  before  mentioned  of  receiv- 
ing the  bill  of  lading  of  goods  at  sea.     But  it  is  still  necessarv  to  every 

33 


514  LAXFEAR    V.    SUMMER.  [CHAP.  IV. 

conveyance  of  goods,  that  there  should  be  an  actual  or  legal  delivery  of 
them  to  the  vendee. 

Upon  these  principles,  it  is  obvious  that  the  defendant  must  prevail 
in  this  case  ;  unless  there  was  a  legal  delivery  to  the  plaintiff,  or  some- 
thing equivalent  to  an  actual  deliver}*,  before  the  attachment  made  by 
the  defendant.  We  can  see  nothing  of  that  kind  in  the  evidence  re- 
ported. The  plaintiff  and  Wain,  it  is  true,  supposed  at  the  time  of 
their  negotiation,  that  the  goods  were  at  sea.  But  if  they  had  been  so, 
Wain  had  no  bill  of  lading,  and  no  other  document  or  evidence  of  his 
title,  to  deliver  to  the  plaintiff.  The  case,  therefore,  does  not  come 
within  the  rule  applicable  to  the  indorsement  and  delivery  of  a  bill 
of  lading  ;  nor  can  we  perceive  that  it  comes  within  any  other  excep- 
tion to  the  general  rule,  which  requires  an  actual  delivery  to  the 
vendee. 

Suppose  that  these  goods  had  been  consigned  to  Wain  himself,  and 
that  the  bill  of  lading  had  come  to  his  hands  after  this  negotiation  with 
the  plaintiff.  If,  in  that  case,  a  third  person  had  purchased  the  goods 
of  Wain  for  a  valuable  consideration,  and  without  notice  of  any  prior 
conveyance,  and  had  taken  the  bill  of  lading  indorsed  by  Wain  ;  it  would 
not,  we  think,  be  doubted  that  he  would  hold  the  goods  against  the  plain- 
tiff. If  so,  it  shows  that  the  property  was  not  absolutely  and  entirely 
transferred  from  Wain  to  the  plaintiff.  It  might  be  so,  as  between  them- 
selves ;  but  not  with  regard  to  a  subsequent  bona  fide  purchaser,  for  a 
valuable  consideration  ;  and  this  is  the  relation  in  which  the  defendant 
now  stands. 

In  the  case  of  Lempriere  et  al..  Assignees  of  Syeds,  a  bankrupt,  v. 
Pasle}-,  2  D.  &  E.  485,  Syeds  before  his  bankruptcy  had  covenanted, 
for  a  valuable  consideration,  to  assign  and  deliver  to  the  defendant 
some  goods,  which  he  expected  on  board  a  certain  ship  ;  and  he  also 
covenanted  that  lie  would  indorse  and  deliver  to  the  defendant  the  bill 
of  lading,  as  soon  as  he  should  receive  it ;  and  at  the  same  time  he  did 
deliver  the  policy  and  letters  of  advice  of  the  expected  shipment,  which 
were  all  the  documents  he  then  had.  After  he  became  bankrupt,  the  bill 
of  lading  arrived,  and  he  immediately  indorsed  it  to  the  defendant,  who 
thereupon  received  the  goods.  It  was  decided  that  the  defendant  should 
hold  them  against  the  assignees  of  the  bankrupt,  on  the  ground  that  the 
assignees  stood  in  the  place  of  the  bankrupt,  and  took  his  property  sub- 
ject to  all  equitable  liens,  to  which  it  was  subject  in  his  hands.  It  was 
not  contended,  in  the  argument  for  the  defendant,  that  there  was  a 
complete  transfer  of  the  property,  before  the  bankruptcy  ;  but  only  an 
equitable  lien  or  interest  in  the  defendant. 

A  commission  of  bankruptcy  has  been  sometimes  called  a  statute 
execution  ;  but  the  assignees  have  not,  in  all  respects  under  the  com- 
inission,  the  same  rights  as  a  creditor  by  execution,  or  in  our  law  an 
attaching  creditor.  Such  a  creditor,  as  before  observed,  is  to  be  con- 
sidered as  a  purchaser  for  a  valuable  consideration.  And  in  the  argu- 
ment for  the  defendant,  in  the  case  last  cited,  it  was  thought  material 


SECT.  III.]  DEMPSEY   V.    GARDNER,  f,  1  ." 

to  distinguish  between  the  rights  of  the  assignees,  and  those  which 
would  have  been  acquired  by  a  creditor  under  an  execution,  or  a  bona 
fide  purchaser  under  the  lull  of  lading;  it  being  admitted  that  the  latter 
persons,  if  they  had  first  got  possession,  without  notice  of  Pasley's 
claim,  would  have  held  the  goods  against  him.  In  the  opinion  of  the 
court,  also,  the  same  distinction  is  noticed  ;  and  it  is  admitted  that  such 
a  purchaser, •  having  obtained  possession,  would  hold  against  Pasley, 
although  the  assignees  could  not.  The  point  decided  in  that  case  de- 
pended on  the  English  bankrupt  laws,  and  therefore  does  not  affect 
the  question  now  before  us;  but  the  course  of  reasoning,  and  the 
opinions  expressed  in  it,  tend  strongly  to  confirm  the  opinion  which 
we  have  adopted  in  the  present  case. 

Plaintiff  nonsuit. 


EDWARD  C.  DEMPSEY  v.  WILLIAM  T.  GARDNER. 

Supreme  Judicial  Court  of   Massachusetts,    March  14  — 
September  4,   1871). 

[Reported  in  127  Massachusetts,  381.] 

Tort,  for  the  conversion  of  a  horse.  The  defendant,  a  constable, 
justified  under  a  writ  against  Margaret  C.  Dempsey,  the  plaintiff's 
mother,  by  virtue  of  which  he  attached  and  sold  the  horse  as  her 
property. 

At  the  trial  in  the  Superior  Court,  before  Pitman,  J.,  the  plaintiff 
contended  that  he  was  the  owner  of  the  horse  at  the  time  of  the  attach- 
ment;  and  offered  evidence  tending  to  show  that,  about  three  months 
before  the  attachment,  having  previously  advanced  to  his  mother  con- 
siderable sums  of  money,  equal  to  or  greater  than  the  value  of  the 
horse,  he  received  from  her,  upon  payment  of  $15  in  addition,  a  bill  of 
sale  of  the  horse  for  $260;  which  bill  of  sale  he  produced  and  proved, 
and  testified  that  he  bought  the  horse  at  that  time  from  his  mother. 
His  mother  also  testified  that  she  sold  the  horse  to  the  plaintiff  at  that 
time.  It  further  appeared  that  the  horse  had  been  always  used  in  the 
family  :  that  the  mother  lived  in  her  own  house,  and  the  horse  was  kept 
in  her  barn,  and  continued  to  be  kept  there  after  the  lull  of  sale  was 
delivered  to  the  plaintiff;  and  that  the  latter  did  not  live  with  his 
mother,  but  frequently  went  to  see  her;  and  he  testified  that,  at  such 
times,  he  saw  the  horse,  as  he  also  testified  he  did  before  the  sale. 

The  plaintiff's  counsel,  in  reply  to  a  question  by  the  judge,  admitting 
that  there  was  no  evidence  of  delivery  for  the  consideration  of  the  jury, 
except  such  as  might  be  implied  from  the  execution  and  delivery  of  the 
bill  of  sale,  the  judge  ruled  that  the  plaintiff  had  not  shown  a  title  good 
as  against  a  subsequent  attaching  creditor  ;  and  ordered  a  verdict  for 
the  defendant.     The  plaintiff  alleged  exceptions. 


516  DEMPSEY   V.    GARDNER.  [CHAP.  IV. 

J.  P.  Treadwell,  for  the  plaintiff. 

C.  Robinson^  Jr.,  for  the  defendant. 

Gray,  C.  J.  If  the  testimony  at  the  trial  was  believed,  the  title  in 
the  horse  passed  as  between  the  parties  to  the  sale.  Pratt?;.  Parkman, 
24  Pick.  42.  46  ;  Morse  v.  Sherman,  106  Mass.  430  ;  Dugan  v.  Nichols, 
12.")  Mass.  43. 

But  by  the  law  as  established  in  this  Commonwealth,  it  was  necessary, 
as  against  subsequent  purchasers  or  attaching  creditors,  that  there 
should  be  a  delivery  of  the  property.  No  such  delivery,  actual  or 
symbolical,  was  proved.  The  buyer  did  no  act  by  way  of  taking  pos- 
session or  exercising  ownership,  and  the  seller  did  not  agree  to  hold  or 
keep  the  horse  for  him.  The  plaintiff's  counsel,  as  he  states  in  his  bill 
of  exceptions,  in  reply  to  a  question  from  the  judge  presiding  at  the 
trial,  expressly  admitted  that  there  was  no  evidence  of  delivery  for  the 
consideration  of  the  jury,  except  such  as  might  be  implied  from  the 
execution  and  delivery  of  the  bill  of  sale.  That  was  not  enough. 
Carter  v.  Willard,  19  Pick.  1  ;  Shumway  v.  Rutter,  7  Pick.  56,  58,  and 
8  Pick.  443,  447  ;  Packard  v.  Wood,  4  Gray,  307  ;  Rourke  v.  Bullens, 
8  Gray,  549  ;  Veazie  y.  Somerby,  5  Allen,  280,  289. 

The  cases  cited  for  the  plaintiff  are  quite  distinguishable  from  this. 
In  Tuxworth  v.  Moore,  9  Pick.  347,  and  in  Bullard  v.  Wait,  16  Gray. 
55,  the  horse  was  in  the  possession  of  a  third  person,  to  whom  notice 
of  the  sale  was  given.  In  Chapman  v.  Searle,  3  Pick.  38,  and  in 
Ingalls  v.  Herrick,  108  Mass.  351,  there  was  an  express  agreement 
that  the  seller  should  hold  the  property  on  storage  for  the  buyer.  In 
Thorndike  v.  Bath,  114  Mass.  116,  the  article  was  by  express  agree- 
ment left  after  the  sale  with  the  seller  to  be  finished  for  the  buyer.  In 
Dugan  v.  Nichols,  125  Mass.  43,  the  question  arose  between  the  buyer 
and  the  assignee  in  bankruptcy  of  the  seller,  who  had  no  greater  rights 
than  the  seller  himself;  and  the  decision  was  put  upon  that  ground. 

The  case  of  Hardy  v.  Potter,  10  Gray,  89,  was  an  action  of  trover 
against  a  deputy-sheriff  for  attaching  a  quantity  of  lumber  on  mesne 
process  against  one  Adams  in  January,  1856.  At  the  trial  the  plain- 
till' testified  that  he  bought  the  lumber  from  Adams  in  the  State  of 
Maine  in  October,  1855,  took  bills  of  sale  of  it,  and  paid  for  it  by  his 
promissory  notes  ;  that  the  lumber  was  then  lying  upon  certain  wharves 
in  Beverly  in  this  Commonwealth,  in  the  custody  of  one  Cross,  an 
agent  of  Adams  and  to  whom  Adams  promised  to  write;  that  nothing 
more  was  to  be  done  between  the  plaintiff  and  Adams  in  relation  to  the 
sale  ;  and  that  in  the  fall  of  1855  the  plaintiff  saw  the  lumber  in  Beverly. 
Upon  that  evidence  the  plaintiff  rested  his  case.  But  the  report  as 
published  is  imperfect,  as  we  find  by  referring  to  the  original  bill  of 
exceptions,  in  not  stating  that  Cross,  being  afterwards  called  as  a  wit- 
ness for  the  defendant,  testified,  among  other  things,  "  that  he  was 
informed  in  tin-  latter  part  of  October,  1855,  by  Adams  by  letter  that 
lie  had  -old  all  the  lumber,  but  was  not  informed  to  whom  the  sale  was 
made;  thai  he  learned  for  the  first  time  in  December,  1855,  that  the 


SECT.  III.]  HALLGARTEN   V.    OLDHAM.  517 

property  had  been  sold  to  the  plaintiff."  This  fact,  though  not  par- 
ticularly noticed  m  the  very  brief  opinion  upon  the  point  of  delivery, 
may  well  have  had  an  important  influence  upon  the  decision;  for  where 
property  sold  is  at  the  time  in  the  custody  <>!"  a  third  person,  notice  to 
him  of  the  sale  is  sufficient  to  constitute  a  delivery  as  against  subse- 
quent attaching  creditors.  Tuxworth  v.  Moore,  9  Pick.  347 ;  Carter 
v.  Willard,  19  Tick.  1 ;  Russell  v.  O'Brien,  127  Mass.  349. 

Exceptions  overruled. 


JULIUS   HALLGARTEN   v.   JONATHAN   OLDHAM. 

Supreme  Judicial  Court  of  Massachusetts,  January  12  — 
April  3,  1883. 

[Reported  in  135  Massachusetts,  1.] 

Replevin  of  497  slabs  of  tin.  Writ  dated  September  29,  1880. 
The  case  was  submitted  to  this  court  ou  agreed  facts,  m  substance 
as  follows  :  — 

The  plaintiffs  at  the  times  hereinafter  mentioned  were  bankers,  and 
one  Lissberger  was  a  dealer  in  metals,  all  doing  business  and  domi- 
ciled in  the  State  of  New  York.  Lissberger  was  largely  indebted  to 
the  plaintiffs  for  advances  of  money  made  in  New  York  ;  and,  as 
security  therefor,  the  plaintiffs  held  merchandise,  warehouse  receipts, 
and  other  property,  deposited  with  them  in  New  York  by  Lissberger. 

On  or  about  May  3,  1880,  Lissberger  applied  to  the  plaintiffs,  in 
New  York,  for  a  release  of  security  to  the  amount  of  $11,000,  so  held 
by  them,  and  offered  to  substitute  therefor  a  warehouse  receipt  and 
weigher's  certificate  for  certain  tin  of  the  same  value,  then,  and  until 
service  of  the  writ  in  this  action,  stored  in  a  warehouse  belonging  to 
one  Damon,  on  Damon's  Wharf,  in  the  control  of  Gardner  Prouty, 
in  Boston,  the  receipt  and  property  to  be  held  as  security  in  like  man- 
ner with  the  securities  for  which  it  was  substituted.  The  receipt, 
signed  ''Gardner  Prouty,  wharfinger,"  was  as  follows:  "No.  91:' 
Boston,  April  20,  1880.  Received  on  storage,  at  Damon's  Wharf  in 
store  No.  8,  for  H.  Lissberger,  the  following  described  merchandise 
from  bark  '  Mohican,'  which  we  promise  to  deliver  to  him  upon  the 
payment  of  charges.  Marks:  Four  hundred  and  ninety-seven  (497) 
slabs  tin."  Prouty  had  received  the  tin  at  Boston,  and  there  signed 
the  receipt,  and  delivered  it  and  the  weigher's  certificate.  The  plain- 
tiffs assented  to  Lissberger's  proposition,  received,  in  the  usual  course 
of  business  from  Lissberger,  the  weigher's  certificate  and  receipt  duly 
indorsed  in  blank  by  Lissberger.  and  delivered  to  him  the  property 
for  which  he  had  applied.  This  transaction  took  place  in  New  York. 
No  record  of  this  transaction,  or  of  any  part  of  it.  was  made  on  the 
records  of  the   city  of  Boston,  and  the   tin  was  not  delivered  to  the 


518  HALLGARTEN    V.    OLDHAM.  [CHAP.  IV. 

plaintiffs,  except  so  far  as  what  is  above  stated  constituted  a  delivery. 
The  warehouse  iu  which  the  tin  was  stored  had  beeu  largely  aud 
exclusively  used  for  the  storage  of  property  belonging  to  others  than 
the  owners  of  the  warehouse  for  more  than  twenty  years  preceding 
this  transaction,  and  the  form  of  warehouse  receipts  given  during  that 
period  by  Prouty  was  like  the  one  in  this  case,  with  this  qualification, 
that,  about  eleven  years  before  this  transaction,  there  was  introduced 
into  the  receipt,  after  the  word  "deliver,"  the  word  "to"  followed 
by  a  blank  space  for  the  insertion  of  the  word  "  him"  or  "  them," 
this  addition  not  having  previously  formed  a  part  of  the  receipt. 

The  warehouseman  who  issued  the  receipt  in  this  case  was  not  a  pub- 
lic warehouseman,  appointed  under  the  provisions  of  the  St.  of  1860, 
c.  206,  and  the  acts  amendatory  thereof.  The  debt  of  Lissberger 
for  said  advances  is  still  unpaid,  and  exceeds  the  value  of  all  the 
securities.  The  plaintiffs  retained  the  receipt  and  certificate  without 
action  until  August  7,  1880,  when  they  gave  notice  to  the  warehouse- 
man that  they  held  the  receipt,  having  first  learned  on  the  previous 
day  of  the  issuing  of  the  attachment  hereinafter  mentioned. 

On  June  15,  1880,  the  defendant,  a  deputy  sheriff  for  Suffolk 
County,  attached  the  tin  as  the  property  of  Lissberger,  upon  a  writ 
sued  out  of  the  Superior  Court  by  Cyrus  Wakefield  and  others  against 
Lissberger,  to  recover  a  debt.  The  writ  was  returnable  at  July 
term,  1880,  and  was  entered  at  that  term;  and  at  April  term,  1881, 
judgment  thereon  was  rendered  for  Wakefield  and  others  in  the  sum 
of  827,000  and  upwards,  which  judgment  is  in  no  part  satisfied. 

The  tin  was  held  by  the  defendant  under  the  attachment  until  the 
service  of  the  writ  in  this  action.  There  is  no  fraud  or  bad  faith 
imputed  to  the  plaintiffs  in  any  of  their  dealings,  or  in  their  omission 
to  give  notice  as  aforesaid  ;  and  neither  of  the  plaintiffs  in  the  action 
of  Wakefield  aud  others  against  Lissberger,  nor  the  defendant  in  this 
action,  had,  until  after  August  7,  1880,  any  notice  or  knowledge  of 
the  transaction  between  Lissberger  and  the  plaintiffs,  or  of  any  inter- 
est or  claim  of  the  plaintiffs  iu  or  to  the  tin,  unless  they  are  affected 
with  notice  by  reason  of  the  matters  hereinbefore  stated. 

The  plaintiffs  made  due  demand  on  the  defendant  for  the  amount  of 
their  debt,  and  otherwise  complied  with  the  provisions  of  the  Gen.  Sts. 
c.  123,  §  63,  and  the  debt  was  not  paid  or  tendered;  and,  after  the 
expiration  of  ten  days  from  the  demand,  they  brought  this  action. 

The  law  of  New  York,  if  material,  is  as  stated  in  the  judgments 
of  its  courts  in  the  cases  of  Wilkes  v*  Ferris,  5  Johns.  335,  and  Yeuni 
v.  McNatnee,  15  N.  Y.  014,  which  cases  may  be  referred  to. 

If  the  plaintiffs  were  entitled  to  recover,  judgment  was  to  be  entered 
for  them,  with  damages  in  the  sum  of  one  dollar,  and  costs;  other- 
wise, lor  the  defendant,  for  a  return,  damages  to  be  assessed,  and 
cost-. 

S.  Bartleti  and  8.  Lincoln,  for  the  plaintiffs. 

F.  K.  Parker,  tor  the  defendant. 


SECT.  III.]  HALLGAUTEN   V.    OLDHAM.  519 

Holmes,  J.  Two  questions  only  are  raised  :  the  main  one,  whether 
enough  bad  been  done  to  give  the  plaintiffs  a  good  title  as  against  the 
attaching  creditor?  the  other,  a  preliminary  inquiry  whether  the  sufB- 
ciency  for  that  purpose  of  what  was  done  is  to  be  determined  by  the 
law  of  New  York  or  of  Massachusetts. 

To  dispose  first  of  the  preliminary  matter.  This  case  must  be  gov- 
erned by  the  ordinary  rules  applicable  to  similar  transactions  taking 
place  wholly  within  this  State.  When  a  sale,  mortgage,  or  pledge  of 
goods  within  the  jurisdiction  of  a  certain  State  is  made  elsewhere,  it 
is  not  only  competent,  but  reasonable,  for  the  State  which  has  the 
goods  within  its  power  to  require  them  to  be  dealt  with  in  the  same 
Way  as  would  be  necessary  in  a  domestic  transaction,  in  order  to  pass 
a  title  which  it  will  recognize  as  against  domestic  creditors  of  the 
vendor  or  pledgor.  This  requirement  is  not  peculiar  to  Massachusetts, 
but  has  the  sanction  of  the  highest  courts  of  the  United  States  and  of 
other  States.  Laufear  v.  Sumner,  17  Mass.  110;  May  v.  Wanne- 
liKirher,  111  Mass.  202,  208,  209;  Green  v.  Van  Buskirk,  5  Wall. 
307,  212  ;  s.  c.  7  Wall.  139,  150,  151  ;  Guillander  v.  Howell,  35  N.  Y. 
057;  Olivier  v.  Townes,  2  Mart.  n.  s.  La.  93;  Clark  v.  Tarbell,  58 
N.  IT.  88  ;  Rice  V.  Courtis,  32  Vt.  460  ;  Martin  v.  Potter,  34  Vt.  87,  88. 
See  also  Dicey  on  Domicil,  262,  rule  57.  It  is  not  necessary  for  the 
purposes  of  this  case  to  consider  whether  it  should  be  dealt  with  as  an 
excel  it  ion  to  general  rules,  as  it  is  regarded  in  Rhode  Island  Central 
Bank  t\  Danforth,  14  Gray,  123,  cited  for  the  plaintiffs,  or  as  an  illus- 
tration of  a  sound  and  fundamental  principle. 

We  pass  to  the  question  whether  enough  had  been  done  to  give  the 
plaintiffs  a  good  title  as  against  the  defendant.  As  this  is  to  be 
decided  by  the  same  rules  as  if  the  whole  transaction  had  taken  place 
in  Massachusetts,  it  is  immaterial  whether  the  indorsement  of  the 
warehouse  receipt,  if  effectual,  created  a  pledge,  a  mortgage,  or.  as 
has  been  suggested,  a  transfer  of  the  absolute  title  in  trust  to  accom- 
plish the  purposes  of  the  transfer.  Farmers'  &  Mechanics'  National 
Bank  /•.  Logan,  74  N.  Y.  568,  582,  583.  See  also  De  Wolf  v.  Gard 
ner,  12  Cush.  19,  26;  Gibson  v.  Stevens,  8  How.  384,  400;  The 
Thames,  14  Wall.  98,  108;  Dows  v.  National  Exchauge  Bank,  91 
U.  S.  61S,  632;  Casey  v.  Cavaroc,  96  U.  S.  467,  477;  Glyn  v.  East 
&  West  India  Dock  Co.,  7  App.  Cas.  591,  606;  s.  c.  6  Q.  B.  D.  475. 
480,  490,  499,  and  5  Q.  B.  D.  129,  130.  For,  as  against  attaching 
creditors,  the  law  of  Massachusetts  has  always  required  a  delivery,  as 
well  in  the  case  of  an  absolute  transfer,  even  a  sale,  as  in  that  of  a 
chattel  mortgage  or  pledge,  from  the  time  of  Lanfear  v.  Sumner,  ubi 
supra,  down  to  the  latest  volumes  of  reports.  Barge  V.  Cone,  6  Allen. 
412;  Dempsey  v.  Gardner,  127  Mass.  381.  Cf.  Harlow  v.  Hall.  L32 
Mass.  232. 

Lanfear  /•.  Sumner  has  been  criticised  in  England,  where  the  law 
appeals  to  be  otherwise:  Blackburn  on  Sales,  327,  328;  Meyerstein 
v.  Barber,  L.  R.  2  C.  P.  38,  51  ;   a  fact  to  be  remembered  in  dealing 


520  HALLGARTEN  V.    OLDHAM.  [CHAP.  IV. 

with  the  English  cases.  But  the  plaintiffs  do  not  attempt  to  over- 
throw the  long-established  rule  of  this  State  ;  they  say  that  they  have 
satisfied  it.  And  their  argument  is  that  the  warehouse  receipt,  being 
the  key  to  the  property,  has  become  a  symbol  representing  it  by  a 
commercial  usage  of  which  the  court  will  take  notice,  and  that  there- 
fore au  indorsement  and  delivery  of  the  receipt,  under  circumstances 
in  which  they  carry  an  interest  in  the  goods,  amount  also,  by  construc- 
tion of  law,  to  a  delivery  of  the  goods  within  the  requirements  of  the 
rule.  It  is  said  that,  in  adopting  this  view,  we  should  only  be  extend- 
ing the  principles  already  applied  to  bills  of  lading  to  other  documents 
which  are  dealt  with  by  merchants  on  the  same  footing. 

The  difficulty  in  dealing  with  this  argument  arises  largely  from  the 
very  great  ambiguity  attaching  to  the  word  "  delivery,"  in  both 
American  and  English  cases.  It  has  been  used  often  when  it  is  evi- 
dent that  the  true  question  was  only  whether  the  property  had  passed. 
The  simplest  explanation  even  of  Gibson  v.  Stevens,  supra,  would 
be  that  delivery  was  not  necessary  to  pass  property  as  against  third 
persons  by  the  law  of  Indiana.  See  Pierce  v.  Gibson,  2  Ind.  408, 
412. 

But  the  deliver}7  required  by  the  rule  in  Lanfear  v.  Sumner  is  delivery 
in  its  natural  sense  ;  that  is,  a  change  of  possession.  And  it  cannot 
be  borne  in  mind  too  carefully  that  the  only  matter  now  under  dis- 
cussion is  whether  there  has  been  a  delivery  in  this  sense,  or  dealings 
having  the  legal  effect  of  such  delivery,  of  the  goods  referred  to  in  the 
warehouse  receipt.  Cases  which  turn  on  a  question  of  property  only, 
or  in  which  delivery  or  its  equivalent  was  not  essential,  whether 
because  the  question  arose  between  the  parties  to  the  sale  or  mort- 
gage, or  because  delivery  was  not  necessary  in  that  jurisdiction  to 
complete  the  transaction  as  against  third  persons,  or  for  any  other 
reason,  are  not  precedents  in  point.  Many  such  cases  will  be  found 
which  speak  of  documents  as  symbols  of  the  goods.  But  that  expres- 
sion will  not  help  us,  unless  it  means  that  a  transfer  of  the  documents 
has  the  effect  of  a  delivery  of  the  goods  as  against  an  attaching  cred- 
itor, who  would  be  preferred  unless  the  goods  had  changed  hands. 

The  question  is,  then,  how  the  transfer  of  any  document  can  have 
that  effect.  The  goods  are  in  the  hands  of  a  middleman,  and  they 
remain  there.  A  true  change  of  possession  could  only  be  brought  to 
pass  by  his  becoming  the  servant  of  the  purchaser  for  the  purpose  of 
holding  the  goods,  so  that  his  custody  should  become  the  possession 
of  his  master.  But  this  is  not  what  happens,  and  it  has  been  held 
that  less  would  satisfy  the  law.  A  carrier,  or  the  warehouseman  in 
case,  is  not  the  servant  of  either  party  quoad  the  possession,  but 
a  bailee  holding  in  his  own  name,  and  asserting  a  lien  for  his  charges 
against  all  parties.  He  alone  has  possession  of  the  goods,  whether 
the  document  is  transferred  or  not. 

But    it    lias    been    held   that  the   principle  of  the  rule  requiring  a 
d  livery  is  satisfied,  although  the  letter  of  it  is  not,  if  the  possessor 


SECT.  III.]  HALLGAKTEN   V.    OLDHAM.  521 

of  the  goods  becomes  the  purchaser's  bailee.  Tuxworth  v.  Moore,  9 
Pick.  347;  Russell  v.  O'Brien,  127  Mass.  349,  354;  Dempsey  y. 
Gardner,  127  Mass.  383.  Now,  it  is  obvious  that  a  custodian  cannot 
become  the  servant  of  another  in  respect  of  his  custody  except  by  his 
own  agreement.  And,  a  fortiori,  when  that  custodian  does  not  yield, 
but  maintains  his  own  possession,  it  is  clear  that  his  custody  cannot 
enure  to  the  benefit  of  another,  as  if  it  were  the  possession  of  that 
other,  unless  the  bailee  consents  to  hold  for  him  subject  to  his  own 
rights.  The  only  way,  therefore,  in  which  a  document  can  be  a 
symbol  of  goods  in  a  bailee's  hands,  for  the  purposes  of  delivery 
to  a  purchaser,  is  by  showing  his  consent  to  become  the  purchaser's 
bailee. 

It  may  or  may  not  be  true  that,  if  a  warehouse  receipt  contains  an 
undertaking  to  deliver  to  order,  that  undertaking  is  to  be  regarded  as 
an  offer  by  the  warehouseman  to  any  one  who  will  take  the  receipt 
on  the  faith  of  it,  aud  that  it  will  make  him  warehouseman  for  the 
indorsee,  without  more,  on  ordinary  principles  of  contract.  That  is 
the  argument  of  Benjamin  on  Sales  (2d  ed.),  676  et  seq.,  criticising 
Farina  v.  Home,  16  M.  &  W.  119,  and  Blackburn  on  Sales,  297. 
But  the  criticism  and  the  case  agree  in  the  assumption,  that  the  only 
way  in  which  the  indorsement  of  a  document  of  title  can  have  the 
effect  of  a  delivery  is  by  making  the  custodian  bailee  for  the  holder 
of  the  document,  and  that  he  cannot  be  made  so  otherwise  than  by 
his  consent.  The  necessity  for  notice,  in  those  cases  where  notice  is 
necessary,  stands  on  the  same  ground.  If  the  custodian  has  not 
assented  in  advance,  he  must  assent  subsequently  ;  and  the  principle 
is  the  same  whether  an  express  acceptance  of  a  delivery  order  be 
required,  or  it  is  held  sufficient  if  he  does  not  dissent  when  notified. 
Boardman  v.  Spooner.  13  Allen,  353,  357.  Cf.  instructions  of  Shaw, 
C.  J.,  to  the  jury  in  Carter  v.  Willard,  19  Pick.  1,3;  Bentall  v.  Burn, 
3  B.  &  C.  423. 

It  is  true  that  there  are  one  or  two  decisions  of  this  court  which 
it  is  somewhat  hard  to  reconcile  with  the  foregoing  principles.  The 
strongest  of  these  is  Green  Bay  National  Bank  v.  Dearborn.  115 
-Mass.  219.  In  that  case  the  plaintiff  discounted  Parks  &  Co.'s  draft 
on  Harvey  Scudder  &  Co.  against  a  railroad  receipt,  of  which  the 
following  were  the  material  words:  "Received  from  R.  G.  Parks  & 
Co.  one  hundred  barrels  of  flour  consigned  to  Harvey  Scudder  &  Co., 
Boston."  This  was  delivered  to  the  plaintiff  in  Wisconsin,  on  the 
understanding  that  the  property  was  thereby  transferred  as  security 
for  the  advance.  Scudder  &  Co.  declined  to  accept  the  draft,  and  the 
goods  were  attached  by  the  defendant.  The  plaintiff  brought  replevin 
and  was  held  entitled  to  recover.  It  will  be  observed  that  the  docu- 
ment did  not  run  to  order,  and  was  not  indorsed,  so  that  it  could  not 
be  argued  that  the  railroad  company  had  attorned  in  advance  ;  and 
there  was  no  notice  to  the  company,  so  that  it  had  not  made  itself 
the  plaintiff's   bailee  subsequently,  if  ordinary  principles  were  to  be 


522  HALLGAUTEN    V.    OLDHAM.  [CHAP.  IV. 

applied.  It  was  said,  however,  that  the  carrier  became  the  plaintiffs 
bailee  from  the  time  its  receipt  was  delivered.  A  carrier  does  stand 
differently  from  other*  bailees  in  one  respect.  He  has  no  delectus 
personafum,  but  is  bound  to  carry  for  any  one  who  takes  proper 
steps  to  make  him  do  so.  There  is,  too,  the  further  circumstance, 
that  the  usual  mode  of  shipping  grain  is  to  draw  against  it,  and  to 
get  a  bank  to  discount  the  draft.  But  it  may  be  doubted  whether  the 
suggestion  was  warranted  that  a  carrier  would  not  ordinarily  give  up 
the  goods  except  upon  a  production  and  surrender  of  the  receipt. 
Forbes  v.  Boston  &  Lowell  Railroad,  133  Mass.  154,  158.  And,  so 
far  as  the  language  might  seem  to  imply  that  the  mere  passing  of  the 
property,  as  between  the  parties,  made  the  carrier  bailee  for  the  plain- 
tiff by  the  general  law  of  bailment,  it  seems  to  us  too  broad.  Cf. 
Henderson  v.  Comptoir  d'Escompte  de  Paris,  L.  R.  5  P.  C.  253. 

But  whatever  the  scope  of  Green  Bay  National  Bank  v.  Dearborn, 
we  cannot  apply  it  as  a  precedent  in  the  present  case,  so  long  as 
Lanfear  v.  Sumner  stands.  When  a  private  warehouseman,  who  has 
an  unfettered  right  to  choose  the  persons  for  whom  he  will  hold,  gives 
a  receipt  containing  only  an  undertaking  to  his  bailor  personalty, 
without  the  words  "  or  order,"  or  any  other  form  of  offer  or  assent  to 
hold  for  any  one  else,  it  is  impossible  to  say  that  a  mere  indorsement 
over  of  that  receipt  will  make  him  bailee  for  a  stranger.  He  has  not 
consented  to  become  so,  even  under  the  principles  argued  for  by  Mr. 
Benjamin.  And,  until  he  has  consented  to  hold  for  some  one  else,  he 
remains  the  bailee  of  the  party  who  entrusted  him  with  the  goods. 
There  was,  therefore,  nothing  done  in  this  case  to  satisfy  the  rule  of 
Lanfear  v.  Sumner. 

If  it  be  suggested  that  the  rule  would  not  help  a  party  chargeable 
with  notice,  and  that  the  fact  that  the  receipt  had  been  indorsed  over 
amounted  to  constructive  notice  to  the  defendant,  the  answer  is  that, 
supposing  notice  would  have  put  an  end  to  his  right  to  attach,  wrheu 
there  had  not  been  a  delivery  or  its  equivalent,  the  defendant  was  not 
bound  to  inquire  for  the  receipt.  To  call  such  an  instrument  a  key  to 
the  goods  is  a  petitio  principii.  For  it  assumes  that  the  receipt  must 
be  produced  in  order  to  obtain  them,  or  that  a  transfer  of  U  without 
the  bailee's  knowledge  will  affect  his  rights.  But  the  bailor  is  not 
bound  to  produce  the  receipt  as  a  condition  precedent  to  his  right  to 
get  back  the  goods  on  payment  of  charges,  and  the  bailee  can  safely 
deliver  the  <_roods  without  it. 

The  appeal  to  commercial  usage  cannot  help  the  plaintiffs'  case. 
If  there  be  any  usage  to  treat  such  documents  as  this  as  symbols  of 
property,  in  the  sense  of  the  argument  for  the  plaintiffs,  it  is  simply 
a  usage  to  disregard  well-settled  rules  of  law  affecting  the  rights  of 
third  persons-  But  we  doubt  if  a  prudent  merchant  would  advance 
on  the  indorsement  of  a  private  warehouse  receipt  not  running  to 
Order,  before  he  had  made  sure  of  the  warehouseman's  assent.  We 
are   confirmed  in  the  view  which  we  take,  by  observing  that  the   Legis- 


SECT.  III.]  MEADE   V.    SMITH.  523 

laturc,  iri  cfealiftg  with  public  warehousemen,  and  providing  that  "  tiie 
title  to  goods  stored  .  .  .  shall  pass  to  a  purchaser  or  pledgee  by  the 
indorsement  and  delivery  to  him  of  the  warehouseman's  receipt" 
(Ptlb.  Sts.  c.  72,  §  (>),  as  a  preliminary  to  that  result,  expressly 
requires,  in  §  b,  that  the  receipt  "shall  be  negotiable  in  form.'' 

Judgment  for  the  defendant.1 


MEADE  y.  SMITH  and  others. 
Connecticut  Supremk  Court  of  Errors,  June,  1844. 

[Reported  in  16  Connecticut,  346.] 

This  was  an  action  of  trover  for  certain  cows,  oxen,  carts,  and  other 
articles  of  personal  property ,  against  Ebenezer  Smith,  Jacob  Dayton,  jr., 
and  David  D.  Husted. 

The  cause  was  tried,  on  the  general  issue,  pleaded  by  the  defendants 
severally,  at  Fairfield,  April  adjourned  term,  1844,  before  Storrs,  J. 

The  plaintiff  claimed  title  to  the  property  described  in  the  declaration, 
by  virtue  of  a  bill  of  sale  thereof,  made  and  delivered  to  him,  in  the  city  of 
New  York,  on  the  3d  of  November,  1842,  at  half  past  9  o'clock,  a.  m., 
by  Esbon  Husted,  of  Greenwich,  in  this  State.  The  plaintiff  claimed 
to  have  proved,  that  the  property  was  then  in  the  actual  possession 
of  Husted,  in  Greenwich  ;  and  that  he,  the  plaintiff,  immediately  on 
receiving  the  bill  of  sale,  proceeded  from  the  city  of  New  York  to 
(Greenwich,  for  the  purpose  of  taking  possession  of  the  property,  and 
arrived  there  at  about  4  o'clock  p.  m.  ;  that  the  consideration  of  the 
bill  of  sale  consisted  of  the  indebtedness  of  Husted  to  the  plaintiff  for 
about  750  dollars,  and  the  verbal  promise  of  the  plaintiff  then  made  to 
Husted.  that  he,  the  plaintiff,  would  assume  upon  himself  the  payment 
of  a  certain  promissory  note,  which  Husted  owed  to  the  Mechanics  and 
Traders'  Bank  in  the  city  of  New  York,  which  had  not  then  arrived  at 
maturity,  and  which  was  indorsed  by  the  plaintiff,  for  Husted's  accom- 

1  In  Iluschle  >\  Morris,  131  111.  587,  593,  Mr.  Justice  Bailey,  in  delivering  the  opin- 
ion of  the  court,  said  :  "  In  case  of  an  unconditional  sale  of  specific  chattels,  delivery  is 
hoi  essential  to  complete  the  sale  and  pass  the  title  as  between  the  parties,  where,  by 
the  agreement,  nothing  remains  to  be  done  hut  for  the  purchaser  to  take  possession. 
Hut  :is  tn  creditors  and  hona  ride  purchasers  the  rule  is  different,  as  a  delivery  is  indis- 
pensable to  complete  the  sale  so  as  to  render  it  valid  as  against  them.  Corgan  v.  Frew, 
39  111.  31.  The  rule  is  that  a  purchaser  of  personal  property,  in  order  to  acquire  title  as 
against  creditors  and  purchasers  without  notice,  must  reduce  it  to  possession  before  their 
rights  attach.  Lewis  v.  Swift,  54  111.  436'.  This  doctrine  is  sustained  by  numerous  de- 
cisions i.  f  this  court.  Thompson  ft.  Wilhitc.si  111.356;  Lefetefv.  Mires,  id.  456 ;  Ticknor 
b.  McClelland,  84  id.  471  j  Broadwell  v.  Howard,  77  id.  805;  Rozier  v.  Williams.  '.»2  id. 
187;  Burnell  v.  Robertson,  5  Gilm.  282;  Dunlap  v.  Berry,  4  Scam.  327."  See  to  the 
same  effect,  Fairfield  Bridge  Co.  v.  Nye,  60  Me.  372  .  Reed  v.  Reed,  70  Me.  .")t)4;  Craw- 
ford v.  1'oriistall,  58  N.  H.  114  (compare  Kicker  v.  Cross.  5  N.  1!.  570). 


524  MEADE  V.    SMITH.  [CHAP.  IV. 

modation  ;  also  two  other  notes,  which  Husted  then  owed  to  Elizabeth 
Griggs,  and  another  which  he  owed  to  E.  Fish  &  Co.  It  was  not 
claimed  by  the  plaintiff,  that  he  had  assumed  the  payment  of  these 
notes,  by  any  agreement  or  arrangement  with  the  creditors,  or  that 
they  had  ever  been  consulted  at  all  on  the  subject,  or  had  any  knowl- 
edge thereof;  or  that  there  had  been  any  assumption  of  said  debts,  b}^ 
the  plaintiff,  otherwise  than  by  said  verbal  agreement  with  Husted,  nor 
was  it  claimed  by  the  plaintiff,  that  Husted  was  in  any  way  discharged 
from  said  debts,  or  either  of  them. 

The  plaintiff,  after  having  given  this  evidence  of  his  title  to  the 
property  in  question,  in  order  to  prove  a  conversion  thereof,  by  the 
defendants,  first  introduced  Caleb  Husted,  as  a  witness,  who  testified, 
that  the  plaintiff,  on  the  3d  of  November,  1842,  after  his  arrival  at 
Greenwich,  found  the  cows,  oxen,  and  carts,  mentioned  in  the  declara- 
tion, and  them  only  in  the  possession  of  the  defendant  Husted,  which 
the  plaintiff  demanded  of  him,  and  he  refused  to  deliver  them  to  the 
plaintiff,  and  said,  they  had  been  put  into  his  possession,  by  the  defend- 
ant Dayton.  John  Henderson,  another  witness  introduced  by  the 
plaintiff,  testified  to  the  same  facts. 

The  plaintiff  next  introduced  two  writs  of  attachment,  in  favor  of 
the  Seventh  Ward  Bank,  against  Esbon  Husted,  with  the  returns  of  the 
defendant  Smith  thereon,  he  being  the  officer  who  served  them,  by 
which  it  appeared,  that  he,  as  a  deputy  sheriff,  attached  the  property 
in  question  on  said  writs  on  the  3d  of  November,  1842,  at  12  o'clock 
at  noon  of  that  day. 

The  plaintiff  then  introduced  Samuel  Close,  as  a  witness,  who  testi- 
fied, that  on  the  3d  of  November,  1842,  or  the  day  following,  the  plain- 
tiff demanded  of  the  defendants  Smith  and  Dayton,  all  the  property 
mentioned  in  the  bill  of  sale,  which  they  had  in  their  possession,  but 
that  none  of  such  property  was  by  them  delivered  to  the  plaintiff,  to 
the  witness's  knowledge  :  and  that  he  did  not  hear  their  answer  in 
reply  to  the  demand.  Nathaniel  S.  Husted,  another  witness  introduced 
by  the  plaintiff,  testified,  that  the  plaintiff  on  the  4th  of  November, 
1842,  at  Greenwich,  demanded  said  cows,  oxen,  and  carts  of  the  defend- 
ants Smith  and  Dayton,  informing  them  that  he  the  plaintiff  had  a  bill 
of  sale  of  them  from  Esbon  Husted  ;  and  that  neither  Smith  nor  Dayton 
made  any  reply  to  the  demand,  nor  delivered  the  property  to  the  plain- 
tiff. On  cross-examination  by  the  defendants,  this  witness  testified,  that 
said  cows,  oxen,  and  carts  were  in  the  possession  of  the  defendant  Husted, 
in  whose  possession  they  had  been  put,  on  the  3d  of  November,  1842  ; 
that  the  defendant  Smith  had  nothing  to  do  with  putting  them  into 
Husted's  possession  ;  that  he,  the  defendant  Smith,  had  put  them  into 
the  hands  of  the  witness,  as  keeper  thereof;  and  that  Dayton,  who  was 
;i  constable,  afterwards  took  them,  against  the  prohibition  of  the  wit- 
ness, from  his  possession,  and  put  them  into  the  possession  of  the 
defendant  Husted. 

It  did  not  appeal-,  that  said  cows,  oxen,  and  carts,  or  either  of  them, 


SECT.  III.]  MEADE   V.    SMITH.  525 

when  the  demand  was  made,  as  testified  to  h}-  this  witness,  were  in  the 
possession  of  the  defendant  Smith. 

The  plaintiff  did  not  show,  or  claim  to  have  shown,  any  connection 
between  the  defendant  Smith  and  the  defendants  Dayton  and  H  us  ted, 
in  relation  to  this  property.  The  evidence  thus  introduced  by  the  plain- 
tiff, was.  when  offered,  objected  to,  by  the  defendants'  counsel,  and  was 
received  subject  to  such  objection. 

The  defendant  Smith  justified  his  acts,  on  the  ground  that  he  was,  on 
the  3d  of  November,  1 -S42,  a  deputy-sheriff;  that  at  noon  of  that  day, 
and  some  hours  before  the  plaintiff's  arrival  at  Greenwich,  he,  as  such 
deput\*- sheriff,  attached  and  took  into  his  possession  the  property  de- 
scribed in  the  declaration,  as  the  property  of  Esbon  Ilusted,  by  virtue 
of  two  writs  of  attachment  in  favor  of  the  Seventh  Ward  Bank  in  the 
city  of  New  York,  against  him,  brought  for  the  recovery  of  debts  then 
justly  due  from  him  to  said  bank  ;  that  when  the  defendant  Smith  so 
attached  and  took  into  his  possession  said  property,  it  was  all  in  the 
possession  of  Ilusted,  on  his  farm  in  Greenwich,  the  plaintiff  not  having 
then  taken  possession  of  it  under  his  bill  of  sale  ;  and  that  neither  he, 
Smith,  nor  the  Seventh  Ward  Bank  had  then  any  knowledge  that  said 
bill  of  sale  had  been  given  ;  nor  was  this  fact,  at  that  time,  known,  by 
any  person  in  Greenwich  ;  nor  was  it  known  at  Greenwich,  until  after 
the  plaintiff's  arrival  there.     This  was  admitted  by  the  plaintiff. 

It  was  agreed,  that  Husted  owned  all  said  property,  at  the  time  he 
gave  the  bill  of  sale  to  the  plaintiff;  and  that  he  had  not  ceased  to  be 
the  owner  thereof,  at  the  time  it  was  so  attached  by  Smith,  otherwise 
than  by  the  giving  of  such  bill  of  sale  ;  that  Husted  was,  at  this  time, 
a  bankrupt  unable  to  pay  all  his  debts  ;  and  that  at  the  term  of  the 
Superior  Court  in  February,  1843,  the  Seventh  Ward  Bank  recovered 
judgment  in  said  suits  against  him,  in  one  for  570  dollars  14  cents 
damages,  and  88  dollars  86  cents  costs  ;  in  the  other,  for  959  dollars 
44  cents  damages,  and  25  dollars  88  cents  costs. 

The  plaintiff  claimed  to  have  proved,  that  he  attempted  to  take  pos- 
session of  said  property  within  a  reasonable  time  after  the  delivery  of 
the  bill  of  sale,  and  used  reasonable  diligence  for  that  purpose  ;  but 
that,  before  he  could  obtain  possession  thereof,  it  had  been  attached 
and  taken  awa}T,  by  Smith  ;  and  he  insisted,  that  under  those  circum- 
stances, he  became  the  owner  of  said  property,  by  force  of  the  bill  of 
sale,  from  the  time  it  was  delivered  to  him  ;  that  he  was  entitled  to  hold 
said  property,  as  against  Smith,  and  the  attaching  creditors;  and  that 
the  mere  attachment  of  the  property  by  Smith,  at  the  time  and  under 
the  circumstances  before  mentioned,  was  in  itself  a  conversion  thereof; 
and  that  for  such  conversion,  without  any  other  act  done  by  Smith,  or 
any  demand  on  him  by  the  plaintiff  for  the  property,  he  was  entitled 
to  recover  against  Smith. 

These  claims  were  resisted,  by  the  defendant.  Smith,  who  claimed 
the  reverse  thereof.  He  also  claimed,  on  the  argument  of  the  cause, 
that  the  plaintiff,  by  introducing  the  testimony  of  Caleb  Husted  and 


526  MEADE   V.    SMITH.  [CHAP.  IV. 

John  Henderson,  bad  elected  to  go  against  the  defendant,  H listed,  and 
had  precluded  himself  from  recovering  against  the  defendant,  Smith  ; 
and  that  the  writs  and  returns  thereon,  and  the  testimony  of  Samuel 
Close  and  Nathaniel  S.  H listed,  as  to  a  demand  and  refusal  of  said 
property,  or  any  part  thereof,  should  be  excluded  as  evidence  of  a  con- 
version thereof;  aud  that  the  attachment  of  the  property  by  Smith 
was  not  in  itself  a  conversion  thereof;  but  that  a  demand  thereof  by 
the  plaintiff,  and  a  refusal  by  Smith,  was  necessary. 

The  plaintiff  resisted  these  claims,  and  claimed  the  reverse  thereof; 
and  each  party  requested  the  court  to  charge  the  jury  in  conformity 
with  the  claims  so  b}-  him  made. 

The  court  did  not  charge  the  jury  in  conformity  to  the  claims  of  the 
defendant.  Smith,  or  either  of  them  ;  but  did  charge  the  jury  in  con- 
formity with  all  the  claims  of  the  plaintiff. 

The  jury  thereupon  returned  a  verdict  for  the  plaintiff,  against  the 
defendant  Smith  ;  and  he  thereupon  moved  for  a  new  trial  for  a  mis- 
direction, and  also  filed  a  motion  in  arrest  of  judgment. 

The  whole  case  was  reserved  for  the  consideration  and  advice  of  this 
court. 

Hawley  and  Button,  in  support  of  the  motions. 

Bissell  and  Ferris,  contra. 

Storks,  J.  The  next  and  most  prominent  question,1  made  in  this 
case,  arises  from  the  circumstance  that  the  plaintiff  had  not  acquired 
the  actual  possession  of  the  property  in  question,  under  his  conveyance 
from  Husted,  before  the  attachment  of  it,  by  the  defendant,  Smith  ;  the 
defendant  claiming,  that,  for  want  of  such  possession,  he,  by  his  attach- 
ment, obtained  a  prior  title  to  the  plaintiff  under  his  assignment.  The 
defendant  having  attached  the  property  on  behalf  of  a  creditor  of  Hus- 
ted. the  questi6n  as  to  the  title  may  be  considered  as  one  between  the 
plaintiff  and  said  creditors  ;  and  both  of  them  stand  in  the  situation  of 
bona  fide  purchasers.  It  being  found  by  the  jury,  that  there  was  no 
want  of  diligence  on  the  part  of  the  plaintiff,  in  taking  possession  of 
the  property,  and  that  a  reasonable  time  had  not  elapsed  for  that  pur- 
pose, when  it  was  attached  by  the  defendant,  the  question  is,  whether, 
as  between  two  bona  fide  purchasers  of  personal  property  from  the 
owner,  the  last,  by  first  obtaining  possession  of  it,  acquires  a  preferable 
title  over  the  other.  "We  consider  not  only  that  the  general  principles 
applicable  to  this  question  are  well  settled,  but  that  the  very  question 
itself  has  been  most  deliberately  decided  by  the  courts  of  this  State, 
against  the  claim  of  the  defendant ;  and,  as  we  believe,  in  entire  accord- 
ance with  the  principles  of  the  common  law.  Whatever  therefore  we 
might  think  of  the  doctrines  which  prevail  on  this  subject  under  the 
civil  law,  or  other  s\-stems  of  jurisprudence  than  our  own,  we  are  not  at 
liberty  to  adopt  them. 

It  is  a  most  ancient  and  well-established  principle  of  the  common  law, 

1   A  jmrtion  of  the  case  irrelevant  to  this  section  has  been  omitted. 


SECT.  III.]  MEADE   V.    SMITH.  ."_7 

that  on  a  sale  of  a  specific  chattel,  the  bargain  or  contract  between  the 
vendor  and  vendee  passes  the  property  in  it  to  the  lath -v.  without  de- 
livery. Glanv.  b.  10,  ch.  II  ;  Clayt  l#iH  Perkins,  tit.  Grant,  §  i)2  ; 
Noy's  Max.  87,  88;  Com.  Dig.  tit.  Bieus,  D.  3;  Step..  Touchs.  224  \ 
Martindale  v.  Booth,  3  Barn.  &  Ad.  4 '.is  (T.)  E.  C.  L.  130;  ;  Dixon  v, 
Yates,  5  Barn.  &  Ad.  313  (27  E.  C.  L.  8G)  ;  Barret  v.  Pritchard, 
2  Pick.  512;  Putnam  v.  Dutch,  8  Mass.  R.  287;  2  Kent's  Com.  lect. 
39  ;  2  Steph.  Com.  120.  Certain  exceptions  are  introduced,  by  the 
Statute  of  Frauds,  which,  as  they  have  no  application  to  this  case  (here 
being  a  written  assignment  of  the  property,  and  the  contract  of  sale 
therefore  not  being  obnoxious  to  any  objection  under  that  statute),  need 
not  be  noticed.  Hence  it  follows,  that  the  title  of  the  purchaser  is  not, 
as  is  claimed  by  the  defendant,  merely  inchoate  and  imperfect  before  a 
delivery,  and  that  such  delivery  is  necessary  in  order  to  perfect  it.  but 
that  there  is  a  perfect  and  complete  transmutation  of  the  property,  by 
the  mere  agreement  between  the  parties.  It  will  be  seen  hereafter, 
that  there  is  an  essential  difference,  in  this  respect,  between  the  com- 
mon and  civil  law.  No  length  of  possession  by  the  vendor,  after  the 
sale,  will  divest  the  vendee  of  the  property.  It  may  furnish  evidence 
between  them,  in  certain  cases,  of  a  non-acceptance  by  the  vendee,  or 
of  an  abandonment  or  re-transfer  of  the  property  to  the  vendor,  or 
the  like  ;  but  those  cases  have  no  relevancy  to  the  present  inquiry,  as 
thev  stand  on  grounds  not  applicable  to  the  case  before  us.  There 
being,  as  to  the  parties,  a  perfect  transfer  of  the  property,  and  a 
complete  transmutation  of  the  title  of  it  to  the  vendee,  by  the  mere 
agreement,  without  a  delivery,  that  title  will  be  respected  and  prevail, 
as  against  all  other  persons  claiming  under  the  vendor,  unless  it  is 
impeached  on  other  grounds  than  the  want  of  legal  effect  of  such 
agreement. 

We  come  now  to  the  claim  of  the  defendant ;  which  is,  that  although, 
as  between  the  parties  to  the  sale,  the  property  is  altered  by  the 
bargain,  it  is  not  altered  as  to  subsequent  bona  fide  purchasers  and 
creditors  of  the  vendor,  unless  there  is  a  delivery  of  the  possession, 
and  consequently,  without  such  delivery,  remains,  as  to  them,  in  the 
vendor.  This  claim,  it  will  be  observed,  proceeds  on  the  ground,  not 
that  the  want  of  a  change  of  possession  furnishes  evidence  of  fraud  in 
the  sale,  and  that  but  for  such  fraud  the  property  would  pass  to  the 
vendee,  as  against  such  purchasers  and  creditors  ;  but  that,  as  to  them, 
there  is  no  transfer  of  the  property,  notwithstanding  there  be  no  fraud 
by  reason  of  such  want  of  possession;  in  other  words,  that  as  to  them, 
before  such  change  of  possession,  the  title  of  the  vendee  is  merely  in- 
choate and  incomplete.  It  is,  therefore,  necessary  to  ascertain  the 
precise  light  in  which  a  want  of  change  of  possession  is  viewed,  and 
what  consequences  are  attached  to  it  in  our  courts. 

It  is  obvious,  that  all  the  questions  which  arise  on  this  subject  must 
be  between  the  first  vendee  and  a  creditor  or  subsequent  purchaser  of 
the  vendor ;  and  all  of  the  numerous  cases  on  this  subject  were  accord- 


528  MEADE   V.    SMITH.  [CHAP.  IV. 

ingly  between  such  parties.     We  look  in  vain  for  any  such  case,  in 
which   the  want  of  possession  by  the  vendee  was,  either  by  the  counsel 
or  the  court,  placed  on  the  ground  that  such  possession  was  necessary 
in  order  to  alter  the  property,  or  that  the  title  of  the  vendee  was  merely 
inchoate  without  it,  and  could  be  consummated  only  by  it.     But  the  want 
of  delivery  to.  or  of  the  continuance  of  possession  by,  the  vendee,  which 
are  placed  on  the  same  ground,  is  in  no  case  considered  in  any  other 
liuht  than  as  furnishing  evidence  of  fraud  in  the  sale  ;  and  where,  for 
the  want  of  such  delivery  or  continuance  of  possession,  the  sale  has 
been  pronounced  void,  it  was  only  on  the  ground  of  such  fraud.     It  is 
accordingly  uniformly  decided,  that  a  retention  of  the  possession  by  the 
vendee,  either  where  there  was  no  possession  taken  by  him,  or  where, 
after  a  formal  delivery  to  him,  the  property  has  gone  back  into  the  pos- 
session of  the  vendor,  furnishes,  in  all  cases,  presumptive  evidence 
that  the  sale  was  fraudulent,  open  however  to  explanation.     This  is  the 
plain  and  intelligible  view  of  the  subject  taken  by  our  courts,  and  is 
also  the  light  in  which  it  is  considered  elsewhere,  where  the  common 
law  prevails.     So  far  there  is  an  entire  uniformity  in  the  decisions  and 
in  the  elementary  writers.     2  Kent's  Com.  lect.  39  :  1  Sw.  Dig.  266,  et 
seq.;  Burge's  Com.  pt.  2,  ch.  3.  14  ;  Lady  Arundel  v.  Phipps,  10  Ves.  jr. 
145  ;    Latimer  v.  Batson,  4   Barn.  &    Cres.   652   (10  E.   C.  L.  432)  ; 
Martindale  v.  Booth,  3  Barn.  &  Ad.  498   (23  E.  C.  L.  130)  ;  Osborne 
v.  Tuller,  14  Conn.  R.  529  ;  Bissell  v.  Hopkins,  3  Cowen,  166  ;  Randall 
v.  Cook,  17  Wend.  53. 

The  language  of  the  courts  in  this  State,  on  this  subject,  is  usually 
guarded  and  precise  ;  and  they  speak  of  a  non-delivery,  or  retention  of 
possession  by  a  vendor,  only  as  creating  a  presumption  of  fraud,  con- 
clusive when  unexplained,  and  never  as  a  circumstance  which  renders 
the  sale  merely  inchoate,  either  as  to  the  vendor  or  a  subsequent  pur- 
chaser or  creditor.  Patten  v.  Smith,  4  Conn.  R.  450  ;  s.  c.  5  Conn.  R. 
196;  Burrows  v.  Stoddard,  3  Conn.  R.  160,  431  ;  Toby  v.  Reed,  9 
Conn.  R.  216  ;  Osborne  v.  Tuller,  14  Conn.  R.  529. 

But  as  to  what  shall  be  considered  a  sufficient  explanation  to  rebut 
such  presumption,  there  has  been  a  great  contrariety  of  opinion;  and 
it  is  here  that  the  difficulty  has  existed  ;  it  being  held,  in  some  places, 
that  it  would  be  rebutted,  by  showing  the  good  faith  of  the  transaction, 
and  in  others  (including  this  State),  that  the  explanation  must  go 
further,  and  be  such  as  the  law  approves.  2  Kent's  Com.  lect.  39  ; 
Osborne  v.  Tuller,  14  Conn.  R.  529,  and  cases  cited.  It  would  be 
foreign  from  our  present  inquiry  to  enumerate  all  those  cases  in  which 
it  has  been  held,  by  our  courts,  that  the  explanation  furnished  by  the 
vendee  for  a  want  of  possession  by  him,  was  sufficient  to  rebut  the  pre- 
sumption of  fraud.  Such  explanation,  however,  has,  in  all  of  them, 
been  deemed  sufficient  for  that  purpose,  because  the  circumstances  con- 
stituting it  repel  the  legal  inference  of  fraud,  which  would  otherwise 
prevail;  and  it  thus  gets  rid  of  that  objection,  which  is  the  only  one 
-rowing  out  of  the  want  of  possession.     In  one  class  of  those  cases,  a 


SECT.  III.]  MEADE   V.    SMITH.  529 

change  of  possession  was  practicable  ;  as,  for  instance,  where  the  prop- 
erty was  exempt  from  attachment  or  execution,  or  where  the  assignment 
was  in  trust  for  creditors  under  the  Act  of  1828,  and  the  trustee  had 
furnished  the  security  required  by  that  act.  4  Conn.  R.  4.">0  ;  1-1  Conn. 
R.  529.  No  inference,  under  these  circumstances,  could  fairly  be 
drawn,  that  a  fraud  on  the  creditors  of  the  vendor  was  designed.  But 
there  is  another  class  where  it  was  not  practicable  for  the  purchaser  to 
take  immediate  possession  of  the  property;  and  that  is  the  case  now 
before  us;  in  such  cases,  it  is  held,  that  a  sufficient  legal  explanation 
of  such  want  of  possession  is  thereby  furnished,  and  that  it  is  sufficient 
if  possession  is  taken  in  a  reasonable  time.  In  other  words,  the  pre- 
sumption of  fraud  is  repelled,  by  the  fact  that  it  was  not  practicable  Cor 
the  vendee  to  take  possession  immediately,  but  that  he  did  so  in  a  rea- 
sonable time,  which  is  considered  due  diligence  on  his  part;  as,  for 
instance,  in  the  case  of  a  ship  at  sea,  or  other  property  afloat,  where  it 
is  sufficient  that  possession  of  them  be  taken  as  soon  as  reasonably  prac- 
ticable after  their  arrival.  This  principle  wras  directly  established  in 
Ingraham  u.  Wheeler,  6  Conn.  R.  277.  That  was  a  case  between  a 
bona  fide  purchaser  of  goods  on  land  and  an  attaching  creditor  of  the 
vendor,  who  had  possession  of  the  goods  as  bailiff  of  the  vendor,  at  the 
time  of  the  attachment  of  them  by  him,  but  who  then  had  no  notice  of 
the  assignment;  which  would  have  constituted  him  the  bailee  of  the 
purchaser,  and  be  equivalent  to  taking  possession  b}-  the  latter  ;  and 
the  jury  found,  that  there  had  been  no  unreasonable  delay,  on  the  part  of 
the  purchaser,  in  claiming  the  property.  The  court  decided  in  favor 
of  the  purchaser.  They  say:  "A  purchaser  is  bound,  in  every  in- 
stance where  it  is  practicable,  to  take  immediate  possession  of  the 
property  ;  and  when  he  does  not,  there  is  a  badge  of  fraud,  open  how- 
ever to  explanation.  Where  it  is  not  practicable  to  take  immediate 
possession,  he  is  bound  to  do  it,  or  that  which  is  equivalent,  in  a  rea- 
sonable time  ;  he  is  bound  to  use  due  diligence.  After  the  execution 
of  the  said  deed  of  assignment,  the  plaintiffs  were  entitled  to  reason- 
able time,  either  to  give  notice  of  the  fact  to  the  bailiff,  or  to  take 
possession  of  the  property.  And  whether  they  did  use  this  diligence,  or 
whether  they  were  so  remiss  that  fraud  ought  to  be  inferred,  were  ques- 
tions of  fact  very  properly  left  by  the  judge  to  the  jury."'  This  case. 
being  in  point,  is  decisive  of  this  question.  See  also  4  Mass.  R.  183, 
535;  1  Pet.  449;  4  Mass.  R.  GG1  ;  6  Mass.  R.  422;  1  Gallis.  419; 
8  Mass.  R.  287  ;   ">  X.  Hamp.  R.  570. 

The  case  of  Lanfear  y.  Sumner,  17  Mass.  R.  110,  has  been  relied  on. 
by  the  defendant,  and  is  in  point  in  his  favor.  Respecting  that  case. 
it  ma)'  be  first  remarked,  that  it  passed  under  the  consideration  of  this 
court  in  Ingraham  et  al.  v.  Wheeler,  and  was  pronounced  not  to  be  in 
accordance  with  the  doctrine  that  had  prevailed  in  this  State.  That 
case  was  also  disapproved,  in  Ricker  v.  Cross,  5  N.  Hamp.  R.  570. 
In  the  next  place,  it  is  clearly  unsupported  by  the  case  of  Caldwell  et 
al.  v.  Ball,  1  T.  R.  205,  which  is  the  only  common  law  authority  relied  on. 

31 


530  MEADE    V.    SMITH.  [CHAP.  IV. 

By  a  reference  to  that  case,  it  appears  that  the  question  was  as  to  the 
legal  title  of  the  property  in  dispute,  irrespective  of  the  fact  of  posses- 
sion, it  not  being  in  the  actual  possession  of  either  of  the  claimants  ; 
and  the  only  point  decided  was,  that  where  there  were  several  bills  of 
lading  for  goods,  signed  at  different  times,  by  the  captain  of  a  ship, 
which  were  subsequently  indorsed  and  delivered,  by  the  shipper,  to 
different  persons,  no  reference  was  to  be  had  to  the  time  when  the  bills 
of  lading  were  signed  by  the  captain,  but  that  the  person  who  first  gets 
one  of  them,  by  a  legal  title,  from  the  shipper,  had  a  right  to  the  prop- 
crtv  consigned;  that  an  indorsement  of  a  bill  of  lading,  created  such 
legal  title  ;  and  therefore,  that  the  claimant  under  the  one  first  in- 
dorsed, though  last  signed,  should  hold  the  property  in  preference  to 
the  other.  That  case  turned  merely  on  the  operation  of  an  indorse- 
ment of  a  bill  of  lading,  which  was  held  to  constitute  a  transfer  of  the 
property.  In  the  last  place,  all  the  other  citations  in  Lanfear  v.  Sum- 
ner are  from  the  civil  law  ;  and  the}*  undoubtedly  support  that  case. 
It  is  however  very  clear,  that  on  the  subject  of  a  sale  and  transfer  of 
personal  property,  there  is  a  fundamental  difference  between  the  common 
and  civil  law  as  to  the  necessity  of  a  delivery  of  the  thing  sold.  By  the 
latter,  the  contract  of  sale,  although  perfect  and  complete,  had  not  the 
effect  of  transferring  to  the  purchaser  the  property  or  dominium  in  the 
thing  sold,  without  a  delivery  of  it  to  him.  (1)  It  did  not  effect  a 
transmutation  of  the  property,  nor  give  to  the  purchaser  the  thing 
itself,  nor  a  right  in  it,  jus  in  re,  but  only  a  right  to  it,  jus  ad  rem, 
that  is.  the  right  of  demanding  it,  by  action  against  the  vendor.  It  was 
the  delivery  only,  which  operated  a  transfer  of  the  dominium,  or  the 
right  of  property.  Hence  the  property,  when  the  sale  of  it  was  per- 
fected, by  the  contract  or  consent  of  the  parties,  was  not  said  to  be 
alienated.  (2)  For  the  purpose  of  compelling  a  delivery  of  it,  the 
actio  empti  is  given  to  the  vendee.  (3)  The  principle  that  the  prop- 
erty or  dominium  could  only*  be  transferred  by  deliver}*,  and  not  by 
contract,  was  steadily  and  rigorously  adhered  to,  in  the  Roman  law.  It 
is  the  nature  of  contracts  or  obligations,  says  Paul,  to  bind  the  person, 
but  not  to  operate  a  transfer  of  property.  This  principle  w*as  adopted 
in  the  law  of  Holland,  (4)  of  Spain,  (5)  and  of  Scotland;  (6)  and 
also  in  the  law  of  France,  before  the  establishment  of  the  Code  Civil. 
(1)  As  a  necessary  consequence  of  that  principle,  it  was  held,  where 
it  prevailed,  that  the  vendor  may,  while  he  retains  possession,  sell  the 
thing  to  a  second  purchaser,  and  if  this  sale  is  followed  by  the  deliver}*, 
it  gives  the  latter  a  complete  and  indefeasible  title  to  the  property' ; 
(8  or  the  creditors  of  the  vendor  may  seize  the  thing  in  the  possession 
<>!'  the  vendor,  before  delivery  to  the  vendee,  although  the  price  has 
been  paid,  and  the  vendee,  not  having  acquired  any  property  or  inter- 
est in  the  thing  by  his  contract,  cannot  pursue  it  in  his  hands,  but  is 
left  solely  to  his  action  for  damages  against  the  vendor.  (9)  Sostrictly 
was  this  principle  adhered  to.  that  if  the  vendor  died  before  a  delivery 
of  the  thing  to  the  purchaser,  having  bequeathed  it  as  a  legacy,  the 


SECT.  IV.]  PATERSON    V.    TASII.  531 

legatee  was  entitled  to  receive  it,  and  the  only  remedy  of  the  purchaser 
\v:is  an  action  against  the  heir  of  the  vendor  for  the  recovery  of  dam- 
ages. (10)  liy  the  Code  Civil,  however,  the  Roman  law  is  so  far 
altered,  that  the  contract  of  sale  has  the  effect  of  transferring  to  the 
purchaser  the  property  in  the  thing  sold,  as  between  the  parties  to  the 
contract,  and  the  sale  is  perfected  by  the  consent  of  the  parties,  as 
evinced  by  that  contract ;  although  it  still  leaves  the  rights  of  the 
creditors  to  be  protected  by  the  old  ride.  (11)  (1)  Cod.  2,  3,  20; 
Dig.  44,  7,  3.  (2)  Dig.  50,  1G,  G7.  (3)  Dig.  19,  1.  (4)  Matth.  de 
Auct.  1,  18,  15;  Voet,  6,  1,  20.  (5)  Gomez,  Res.  c.  2,  n.  32,  1.  29, 
30;  tit.  5,  pt.  5,  Feb.  2,  4,  2,  32.  (G)  Stair,  b.  1,  tit.  14,  §  2;  Ersk. 
b.  1,  tit.  3,  §  2.  (7)  Poth.  Tr.  de  Vente,  n.  319.  (8)  Dig.  G,  2,  9  ;  Cod. 
3,32,  15.  (9)  Matth.  1,  18,  15.  (10)  Dig.  19,  2,  32.  (11)  Art.  1583, 
711,  1583,  2279;  Toull.  liv.  3,  t.  3,  n.  3G. 

We  are  of  opinion,  that  under  the  peculiar  circumstances  of  this  case, 
it  was  not  the  duty  of  the  court  below  to  exclude  the  evidence  offered 
by  the  plaintiff,  to  prove  a  conversion  by  the  defendant,  Smith.  After 
an  ineffectual  attempt  to  show  such  a  connection  between  him  and  the 
other  original  defendants  as  would  affect  him,  by  the  demand  and 
refusal  proved,  it  was  competent  for  the  plaintiff  to  waive  it  and  pro- 
ceed against  Smith  alone,  which  he  did,  on  the  first  opportunit}-.  Tin; 
rule  relied  on  by  the  defendant  is  mainly  one  of  practice,  and  in  order 
to  do  perfect  justice,  must  be  applied  under  the  discretion  of  the  court. 
While,  on  the  one  hand,  the  plaintiff  should  not  be  allowed  to  vary  his 
proof  capriciously,  in  order  to  speculate  on  the  evidence,  he  should  not, 
on  the  other,  be  too  strictly  held,  by  a  sudden  and  unexpected  failure 
in  his  proof,  to  support  the  whole  of  his  claim.  Without  detailing  the 
facts  on  this  part  of  the  case,  we  think,  that  the  ends  of  justice  were 
promoted  by  the  course  taken  on  the  trial. 

For  these  reasons,  a  new  trial  ought  not  to  be  granted. 

In  this  opinion  the  other  Judges  concurred. 

JVew  trial  not  to  be  granted. 


SECTION    IV. 

Factors  and  Factors    Acts. 

PATERSOX  v.  TASII. 

In  tiii:  King's  Bench,  Hilary  Term,  1743. 

[Reported  in  •>  Strange,  1178.] 

Tt  was  held  by  C.  J.  Lee,  that  though  a  factor  has  power  to  sell, 
and  thereby  bind  his  principal,  yet  he  cannot  bind  or  affect  the  prop- 
erty of  the  goods  by  pledging  them  as  a  security  for  his  own  debt, 
though  there  is  the  formality  of  a  bill  of  parcels  and  a  receipt. 

An'/  the  jury  found  i/ccordingly. 


i32  PICKERING    V.    BUSK.  [UHAP.  IV 


WILKINSON  v.  KING. 

At  Nisi  Prius,  December  21,  1809. 

[Reported  in  2  Campbell,  335.] 

Trover  for  a  quantity  of  lead. 

The  plaintiff  had  sent  the  lead  in  question  to  the  wharf  of  one  Ellil 
in  the  Borough  of  Southwark,  there  to  remain  till  it  should  be  sold. 
Ellil  was  accustomed  to  sell  lead  from  this  wharf;  but  had  no  author- 
ity whatever  to  sell  the  lead  in  question,  and  never  had  sold  any  for  the 
plaintiff  before.  However,  he  sold  this  lead  to  the  defendants,  who 
bought  it  bona  fide  as  his  property,  and  paid  him  for  it  by  a  bill  of 
exchange. 

Lord  Ellexborough  held  that  the  sale  by  Ellil  did  not  change  the 
property  in  the  lead,  and  observed  that  the  doctrine  contended  for  would 
give  wharfingers  the  dominion  over  all  the  goods  intrusted  to  them  ;  but 
that  a  wharf  could  not  be  considered,  even  in  London,  as  a  market 
overt  for  the  articles  brought  there.  Ellil  had  no  color  of  authority  to 
sell  the  lead,  and  no  one  could  derive  a  good  title  to  it  under  such  a 
tortious  conversion. 

Verdict  for  the  plaintiff. 

The  Attorney-  General,  Park,  and  Richardson,  for  the  plaintiff. 

Garroiv,  Gaselee,  and  Bamewall,  for  the  defendants. 


PICKERING  v.  BUSK. 
In  the  King's  Bench,  January  27,  1812. 

[Reported  in  15  East,  38.] 

Trover  for  hemp.  At  the  trial  before  Lord  Ellenborough,  C.  J., 
at  the  sittings  after  Trinity  Term  in  London,  it  appeared  that  Swallow, 
a  broker  in  London,  engaged  in  the  hemp  trade,  had  purchased  for  the 
plaintiff,  a  merchant  at  Hull,  a  parcel  of  hemp  then  lying  at  Symonds' 
wharf  in  Southwark.  The  hemp  was  delivered  to  Swallow,  at  the  desire 
of  the  plaintiff,  by  a  transfer  in  the  books  of  the  wharfinger  from  the 
name  of  the  seller  to  that  of  Swallow.  Shortly  afterwards  Swallow 
purchased  for  the  plaintiff  another  parcel  of  hemp,  lying  at  Brown's 
qua}',  Wapping,  which  latter  parcel  was  transferred  into  the  names  of 
Pickering  (the  plaintiff),  or  Swallow.  Both  these  parcels  of  hemp  were 
duly  paid  for  by  the  plaintiff.  Swallow,  however,  whilst  the  hemp  re- 
mained thus  in  his  name,  having  contracted  with  Hayward  &  Co..  as 
the  broker  of  Blackburn  &  Co..  for  the  sale  of  hemp,  and  having  none 
of  his  own  to  deliver,  transferred  into  the  names  of  Hayward  &  Co., 


SECT.  IV.]  PICKERING    V.    BUSK.  533 

the  above  parcels  in  satisfaction  of  that  contract,  for  which  the}-  paid 
him  the  value.  I  lay  ward  &  Co.  shortly  after  became  bankrupts;  and 
the  plaintiff,  discovering  these  circumstances,  demanded  the  hemp  of 
the  defendants  their  assignees,  and  upon  their  refusal  to  deliver  it  the 
present  action  was  brought.  His  Lordship  was  of  opinion  upon  this 
evidence,  that  the  transfer  of  the  hemp,  by  direction  of  the  plaintiff, 
into  Swallow's  name,  authorized  him  to  deal  with  it  as  owner,  with 
inspect  to  third  persons;  and  that  the  plaintiff,  who  had  thus  enabled 
him  to  assume  the  appearance  of  ownership  to  the  world,  must  abide 
the  consequence  of  his  own  act.  A  verdict  was  thereupon  found  for 
the  defendants,  with  liberty  to  the  plaintiff  to  move  to  set  it  aside. 

Garrow,   Topping,  and  Taddy,  now  showed  cause. 

The  Attorney- General,  Park,  and  Abbott,  contra. 

Lord  Ellenborough,  C.  J.  It  cannot  fairly  be  questioned  in  this 
case  but  that  Swallow  had  an  implied  authority  to  sell.  Strangers  can 
only  look  to  the  acts  of  the  parties,  and  to  the  external  indicia  of  prop- 
erty, and  not  to  the  private  communications  which  may  pass  between  a 
principal  and  his  broker ;  and  if  a  person  authorize  another  to  assume 
the  apparent  right  of  disposing  of  property  in  the  ordinary  course  of 
trade,  it  must  be  presumed  that  the  apparent  authority  is  the  real  au- 
thority.  I  cannot  subscribe  to  the  doctrine,  that  a  broker's  engage- 
ments are  necessarily  and  in  all  cases  limited  to  his  actual  authority, 
the  reality  of  which  is  afterwards  to  be  tried  by  the  fact.  It  is  clear 
that  he  may  bind  his  principal  within  the  limits  of  the  authority  with 
which  he  has  been  apparently  clothed  by  the  principal  in  respect  of  the 
subject-matter;  and  there  would  be  no  safety  in  mercantile  transactions 
if  he  could  not.  If  the  principal  send  his  commodity  to  a  place,  where 
it  is  the  ordinary  business  of  the  person  to  whom  it  is  confided  to  sell, 
it  must  be  intended  that  the  commodity  was  sent  thither  for  the  pur- 
pose of  sale.  If  the  owner  of  a  horse  send  it  to  a  repository  of  sale,  can 
it  be  implied  that  he  sent  it  thither  for  any  other  purpose  than  that  of 
sale?  Or  if  one  send  goods  to  an  auction-room,  can  it  be  supposed 
that  he  sent  them  thither  merely  for  safe  custody?  Where  the  com- 
modity is  sent  in  such  a  way  and  to  such  a  place  as  to  exhibit  an  ap- 
parent purpose  of  sale,  the  principal  will  be  bound,  and  the  purchaser 
safe.  The  case  of  a  factor  not  being  able  to  pledge  the  goods  of  his 
principal  confided  to  him  for  sale,  though  clothed  with  an  apparent 
ownership,  has  been  pressed  upon  us  in  the  argument,  and  consider- 
ably distressed  our  decision.  The  court,  however,  will  decide  that 
question  when  it  arises,  consistently  with  the  principle  on  which  the 
present  decision  is  founded.  It  was  a  hard  doctrine  when  the  pawnee 
was  told  that  the  pledger  of  the  goods  had  no  authority  to  pledge  them, 
being  a  mere  factor  for  sale  ;  and  yet  since  the  case  of  Paterson  v.  Tash, 
that  doctrine  has  never  been  overturned.  I  remember  Mr.  Wallace 
arguing  in  Campbell  w.  Wright,  4  Burr.  -2041";.  that  the  bills  of  lading  ought 
to  designate  the  consignee  as  factor,  otherwise  it  was  but  just  that  the 
consignors   should   abide   by   the   consequence   of  having  misled   the 


534  PICKERING   V.    BUSK.  [CHAP.  IV. 

pawnees.  The  present  case,  however,  is  not  the  case  of  a  pawn,  bat 
that  of  a  sale  by  a  broker  having  the  possession  for  the  purpose  of  sale. 
The  sale  was  made  by  a  person  who  hud  all  the  indicia  of  property  ; 
the  hemp  could  only  have  been  transferred  into  his  name  for  the  pur- 
pose of  sale  ;  and  the  party  who  has  so  transferred  it  cannot  now 
rescind  the  contract.  If  the  plaintiff  had  intended  to  retain  the  do- 
minion over  the  hemp,  he  should  have  placed  it  in  the  wharfinger's  books 
in  his  own  name. 

Gkose,  J.  The  question,  whether  the  plaintiff  is  bound  by  the  act  of 
Swallow,  depends  upon  the  authority  which  Swallow  had.  This  being 
a  mercantile  transaction,  the  jury  were  most  competent  to  decide  it; 
and  if  I  had  entertained  any  doubt,  I  should  rather  have  referred  the 
question  to  them  for  their  determination  ;  but  I  am  perfectly  satisfied  : 
I  think  Swallow  had  a  power  to  sell. 

Li:  Blaxc,  J.  The  law  is  clearly  laid  down,  that  the  mere  possession 
of  personal  property  does  not  convey  a  title  to  dispose  of  it ;  and, 
which  is  equally  clear,  that  the  possession  of  a  factor  or  broker  does 
not  authorize  him  to  pledge.  But  this  is  a  case  of  sale.  The  question 
then  is  whether  Swallow  had  an  authority  to  sell.  To  decide  this,  let 
us  look  at  the  situation  of  the  parties.  Swallow  was  a  general  seller  of 
hemp  ;  the  hemp  in  question  was  left  in  the  custody  of  the  wharfingers, 
part  in  the  name  of  Swallow,  and  part  in  the  name  of  the  plaintiff  or 
Swallow,  which  is  the  same  thing.  Now  for  what  purpose  could  the 
plaintiff  leave  it  in  the  name  of  Swallow,  but  that  Swallow  might  dis- 
pose of  it  in  his  ordinary  business  as  broker  ;  if  so,  the  broker  having 
sold  the  hemp,  the  principal  is  bound.  This  is  distinguishable  from  all 
the  cases  where  goods  are  left  in  the  custody  of  persons  whose  proper 
business  it  is  not  to  sell. 

Bayley,  J.  It  may  be  admitted  that  the  plaintiff  did  not  give  Swal- 
low any  express  authority  to  sell ;  but  an  implied  authority  may  be 
given  ;  and  if  a  person  put  goods  into  the  custody  of  another,  whose 
common  business  it  is  to  sell,  without  limiting  his  authority,  he  thereby 
confers  an  implied  authority  upon  him  to  sell  them.  Swallow  was  in 
the  habit  of  buying  and  selling  hemp  for  others,  concealing  their  names. 
And  now  the  plaintiff  claims  a  liberty  to  rescind  the  contract,  because 
no  express  authority  was  given  to  Swallow  to  sell.  But  is  it  competent 
to  him  so  to  do?  If  the  servant  of  a  horse-dealer  with  express  direc- 
tions not  to  warrant,  do  warrant,  the  master  is  bound  ;  because  the  ser- 
vant, having  a  general  authority  to  sell,  is  in  a  condition  to  warrant, 
and  the  master  has  not  notified  to  the  world  that  the  general  authority 
is  circumscribed.  This  case  does  not  proceed  on  the  ground  of  a  sale 
in  market  overt,  but  it  proceeds  on  the  principle  that,  the  plaintiff 
having  given  Swallow  an  authority  to  sell,  he  is  not  at  liberty  after- 
wards, when  there  has  been  a  sale,  to  deny  the  authority. 

Bide  discharged. 


SECT.  IV.]  ENGLISH    STATUTES.  535 


4  GEORGE  IV.,  Cap.  83. 

An  Act  for  the  better  Protection  of  the  Property  of  Merchants  and  others,  who  may  here- 
a  ft,  r  t  nit  /■  into  Contrails  or  Agreemi  ids  in  relation  to  Goods,  Warts  or  Merchandizes 
intrusted  to  Factors  or  Agents. 

"  Whereas  it  has  been  fouud  that  the  Law,  as  it  now  stands,  relating  to  Goods 
Bhipped  in  the  Names  of  Persons  who  are  not  the  actual  Proprietors  thereof,  and  to 

the  Deposit  or  Pledge  of  Goods,  affords  great  Facility  to  Fraud,  produces  frequent 
Litigation,  and  proves,  in  its  Effects,  highly  injurious  to  the  Interests  of  Commerce  in 
general";  Be  it  therefore  enacted  .  .  .  That  from  and  after  the  passing  of  this  Act, 
'anv  1  'erson  or  Persons  intrusted,  for  the  Purpose  of  Sale,  with  any  Goods,  Ware  or  Mer 
chandize,and  by  whom  such  Goods,  Wares  or  Merchandize  shall  he  shipped,  in  his,  her  or 
tin  irown  Name  or  Names,  or  in  whose  Name  or  Names  any  Goods,  Wares  or  Merchan- 
dize shall  be  shipped  by  any  other  Person  or  Persons,  shall  be  deemed  and  taken  to  he 
the  true  ( iwner  or  (  >wuers  thereof,  so  far  as  to  entitle  the  Consignee  or  Consignees  of 
such  Coeds,  Wares  and  Merchandize  to  a  Lien  thereon,  in  respect  of  any  Money  or 
uegociable  Security  or  Securities  advanced  or  given  by  such  Consignee  or  Consignees 
to  or  for  the  Use  of  the  Person  or  Persons  in  whose  Name  or  Names  such  Goods, 
Wares  or  Merchandize  shall  he  shipped,  or  in  respect  of  any  Money  or  uegociable 
Security  or  Securities  received  by  him,  her  or  them  to  the  Use  of  such  Consignee  or 
Consignees,  in  the  like  Manner  to  all  Intents  and  Purposes  as  if  such  Person  or 
Persons  was  or  were  the  true  Owner  or  Owners  of  such  Goods,  Wares  and  Merchandize  , 
provided  such  Consignee  or  Consignees  shall  not  have  Notice,  by  the  Bill  of  Lading 
fur  the  Delivery  of  such  Goods,  Wares  or  Merchandize  or  otherwise,  at  or  before  the 
Time  of  any  Advance  of  such  Money  or  negociahle  Security,  or  of  such  Receipt  of 
Money  or  negociahle  Security,  in  respect  of  which  such  Lien  is  claimed,  that  such  Per- 
son or  Persons  so  shipping  in  his,  her  or  their  own  Name  or  Names,  or  in  whose  Name 
or  Names  any  Goods,  Wares  or  Merchandize  shall  he  shipped  by  any  Person  or  Per- 
sons, is  or  are  not  the  actual  and  bona  fide  Owner  or  ( hvners,  Proprietor  or  Proprietors 
of  such  Goods,  Wares  and  Merchandize  so  shipped  as  aforesaid,  any  Law,  Usage  or  Cus- 
tom to  the  contrary  thereof  in  any  wise  notwithstanding  Provided  also,  that  the  Per- 
son or  Persons  in  whose  Name  or  Names  any  such  Goods,  Wares  or  Merchandize  are 
so  shipped  as  aforesaid,  shall  be  taken  for  the  Purposes  of  this  Act  to  have  been  in- 
trusted therewith,  unless  the  contrary  thereof  shall  appear  or  be  shown  in  Evidence  by 
anv  Person  disputing  such  Fact. 

II.  And  be  it  further  enacted,  That  it  shall  be  lawful  to  and  for  any  Person  or  Per- 
sons, Body  or  Bodies  Politic  or  Corporate,  to  accept  and  take  any  Goods,  Wares  or 
Merchandize,  or  the  Bill  or  Bills  of  Lading  for  the  Delivery  thereof,  in  Deposit  or 
Pledge,  from  anv  Consignee  or  Consignees  thereof;  but  then  and  in  that  Case  such 
Person  or  Persons,  Body  or  Bodies  Politic  or  Corporate,  shall  acquire  no  further  or 
other  Right,  Title  or  Interest,  in  or  upon  or  to  the  said  Goods,  Wares  or  Merchandize, 
or  any  Bill  of  Lading  for  the  Delivery  thereof,  than  was  possessed,  or  could  or  might 
have  been  enforced  by  the  said  Consignee  or  Consignees  at  the  Timeof  such  Depos 
Pledge  as  a  Security  as  aforesaid;  but  such  Person  or  Persons,  Body  or  Bodies  Politic 
or  Corporate,  shall  and  may  acquire,  possess  and  enforce  such  Right,  Title  or  Interest, 
as  was  possessed,  and  might  have  been  enforced,  by  such  Consignee  or  Consignees,  at 
the  rime  of  such  Deposit  or  Pledge  as  aforesaid  ;  any  Rule  of  Law,  Usage  or  Custom 
to  the  contrary  notwithstanding. 

[II.  Provided  always.  That  nothing  herein  contained  shall  lie  deemed,  construed  or 
taken  to  deprive  or  prevent  the  true  Owner  or  Owners,  Proprietor  or  Proprietors  of 
such  Goods,  Wans  or  Merchandize,  from  demanding  and  recovering  the  same  from 
his,  her  or  their  Factor  or  Factors,  Agent  or  Agents,  before  the  same  shall  have  1  een 
so  deposited  or  pledged,  or  from  the  Assignee  or  Assignees  of  such  Factor  or  Factors. 
Agent  or  Agents,  in  the  Event  of  his,  her  or  their  Bankruptcy;  nor  to  prevent  any 
such  Owner  or  Owners,  Proprietor  or  Proprietors,  from  demanding  or  recovering  of 


536  ENGLISH    STATUTES.  [CHAP.  IV. 

and  from  any  Person  or  Persons,  or  of  or  from  the  Assignees  of  any  Person  or  Per- 
sons in  case  of  Ins  or  her  Bankruptcy,  or  of  or  from  any  Body  or  Bodies  Politic  or 
Corporate,  such  Goods,  Wares  or  xMerchaudize,  so  consigned,  deposited  or  pledged, 
upon  Repayment  of  the  Money,  or  on  Restoration  of  the  uegociable  Security  or  Secur- 
ities, or  on  Payment  of  a  Sum  of  Money  equal  to  the  Amount  of  such  Security  or 
Securities,  for  "which  Money  or  uegociable  Security  or  Securities  such  Person  or  Per- 
sons, his,  her  or  their  Assignee  or  Assignees,  or  such  Body  or  Bodies  Politic  or  Cor- 
porate, may  be  entitled  to  any  Lien  upon  such  Goods,  Wares  or  Merchandize;  nor  to 
it  tiie  said  Owner  or  Owners,  Proprietor  or  Proprietors,  from  recovering  of  and 
from  such  Person  or  Persons,  Body  or  Bodies  Politic  or  Corporate,  any  Balance  or 
Sum  of  Money  remaining  in  his,  her  or  their  Hands,  as  the  Produce  of  the  Sale  of 
such  Goods,  Wares  or  Merchandize,  after  deducting  thereout  the  Amount  of  the 
Money  or  uegociable  Security  or  Securities  so  advanced  or  given  upou  the  Security 
thereof  as  aforesaid:  Provided  always,  that  in  case  of  the  Bankruptcy  of  such  Factor 
■  Agent,  the  Owner  of  the  Goods  so  pledged  aud  redeemed  as  aforesaid  shall  be  held 
to  have  discharged  pro  tanlo  the  Debt  due  by  him  to  the  Bankrupt's  Estate. 

6  GEORGE  IV.,  Cap.  94. 

An  Act  to  alter  and  amend  an  Act  for  the  better  Protection  of  the  Property  of  Merchants 
and  others,  who  may  hereafter  enter  into  Contracts  or  Agreements  in  relation  to  Goods, 
Wares  or  Merchandize  intrusted  to  Factors  or  Agents. 

"  Whereas  an  Act  passed  in  the  Fourth  Year  of  the  Reign  of  His  present  Majesty, 
intituled  An  Act  for  the  better  Protection  of  the  Property  of  Merchants  and  others,  who 
may  hereafter  enter  into  Contracts  or  Agreements  in  relation  to  Goods,  Wares  or  Mer- 
chandize intrusted  to  Factors  or  Agents :  And  Whereas  it  is  expedient  to  alter  and 
amend  the  said  Act,  and  to  make  further  Provisions  in  relation  to  such  Contracts  or 
Agreements,  as  hereinafter  provided":  Be  it  therefore  enacted  .  .  .  That  from  and 
alter  the  passing  of  this  Act,  any  Person  or  Persons  intrusted,  for  the  Purpose  of 
( lousignment  or  "of  Sale,  with  any  Goods,  Wares  or  Merchandize,  and  who  shall  have 
shipped  such  Goods,  Wares  or  Merchandize  in  his,  her  or  their  own  Name  or  Names, 
and  any  Person  or  Persons  in  whose  Name  or  Names  any  Goods,  Wares  or  Merchan- 
dize shall  be  shipped  by  any  other  Person  or  Persons,  shall  be  deemed  and  taken  to 
be  the  true  Owner  or  Owners  thereof,  so  far  as  to  entitle  the  Consignee  or  Consignees 
of  such  Goods,  Wares  and  Merchandize  to  a  Lien  thereon,  in  respect  of  any  Money 
■.r  negotiable  Security  or  Securities  advanced  or  given  by  such  Consignee  or  Con- 
signees to  or  for  theUse  of  the  Person  or  Persons  in  whose  Name  or  Names  such 
Goods,  Wares  or  Merchandize  shall  be  shipped,  or  in  respect  of  any  Money  or 
negotiable  Security  or  Securities  received  by  him,  her  or  them,  to  the  Use  of  such 
Consignee  or  Consignees,  in  the  like  Manner  to  all  Intents  and  Purposes  as  if  such 
Person  oi  Persons  was  or  were  the  true  Owner  or  Owners  of  such  Goods,  Wares  and 
Merchandize:  Provided  such  Consignee  or  Consignees  shall  not  have  Notice  by  the 
Bill  of  Lading  for  the  Delivery  of  such  Goods,  Wares  or  Merchandize  or  otherwise, at 
or  before  the  Time  of  any  Advance  of  such  Money  or  negotiable  Security,  or  of  such 
Receipt  of  Money  or  negotiable  Security  in  respect  of  which  such  Lien  is  claimed,  that 
such  Person  or  Persons  so  shipping  in  hi*,  her  or  their  own  Name  or  Names,  or  in  whose 
Name  or  Names  any  Goods,  Wares  or  Merchandize  shall  be  shipped  by  any  Person  or 
Persons,  is  or  are  not  the  actual  and  bona  Ji</r  Owner  or  Owners,  Proprietor  or  Pro- 
prietors of  such  Goods,  Wares  and  Merchandize  so  shipped  as  aforesaid,  any  Law, 
Usage  or  Custom  to  the  contrary  thereof  in  any  wise  notwithstanding:  Provided  also, 
that  the  Person  or  Persons  in  whose  Name  or  Names  any  such  Goods,  Wares  or  Mer- 
chandize are  so  shipped  as  aforesaid,  shall  be  taken,  for  the  Purposes  of  this  Act,  to 
have  been  intrusted  therewith  for  the  Purpose  of  Consignment  or  of  Sale,  unless  the 
contrary  thereof  shall  lie  made  to  appear  by  Bill  of  Discovery  or  otherwise,  or  be  made 
to  appear  oi  he  shown  in  Evidence  by  any  Person  disputing  such  Fact. 

II.    And   be  it  further  enacted,  That  from  ami  after  the  First  Day  of  October  One 


SECT.  IV.]  ENGLISH    STATUTES.  537 

thousand  eight  hundred  and  twenty  six,  any  Person  or  Persons  intrusted  with  and  in  Pos- 
session of  any  Bill  of  Lading,  India  Wan-ant,  Dock  Warrant,  Warehouse  Keepers'  ( !er- 
tincate,  Wharfinger's  Certificate,  Warrant  or  Order  for  Delivery  of  Goods,  shall  l»e 
deemed  and  taken  to  l>e  the  true  Owner  or  Owners  of  the  Goods,  Wares  and  Merchan- 
dize described  and  mentioned  in  the  said  several  Documents  hereinbefore  stated  respect- 
ively, or  either  of  them,  so  far  as  to  give  Validity  to  any  Contract  or  Agreement 
thereafter  to  be  made  or  entered  into  by  such  Person  or  Persons  so  intrusted  and  in  Pos- 
session as  aforesaid,  with  any  Person  or  Persons,  Body  or  Bodies  Politic  or  Corporate, 
for  the  Side  or  Disposition  of  the  said  Goods,  Wares  and  Merchandize,  or  any  l'art 
thereof,  or  for  the  Deposit  or  Pledge  thereof  or  any  Part  thereof, as  a  Security  for  any 
.Money  or  negotiable  Instrument  or  Instruments  advanced  or  given  by  such  Person  or 
Persons,  Body  or  Bodies  Politic  or  Corporate,  upon  the  Faith  of  such  Beveral  Docu- 
ments or  either  of  them  :  Provided  such  Person  or  Persons,  Body  or  Bodies  Politic  or 
Corporate,  shall  not  have  Notice  by  such  Documents  or  either  of  them  or  otherwise, 
that  stub  Person  or  Persons  so  intrusted  as  aforesaid  is  or  are  not  the  actual  and  bona 
fide  (  hvner  or  <  hvners,  Proprietor  or  Proprietors  of  such  Goods,  Wares  or  Merchandize 
so  sold  or  deposited  or  pledged  as  aforesaid  ;  any  Law,  Usage  or  Custom  to  the  contrary 
thereof  in  any  wise  notwithstanding. 

III.  Provided  always,  and  be  it  further  enacted,  That  in  case  any  Person  or  Per- 
sons, Body  or  Bodies  Politic  or  Corporate,  shall,  after  the  passing  of  this  Act,  accept 
and  take  any  such  Goods,  Wares,  or  Merchandize  iu  Deposit  or  Pledge  from  any  such 
Person  or  Persons  so  in  Possession  and  intrusted  as  aforesaid,  without  Notice  as  afore- 
said, as  a  Security  for  any  Debt  or  Demand  due  and  owing  from  such  Person  or 
Persons  so  intrusted  and  in  Possession  as  aforesaid,  to  such  Person  or  Persons,  Bodv  or 
Bodies  Politic  or  Corporate,  before  the  Time  of  such  Deposit  or  Pledge,  then  and  in 
that  Case  such  Person  or  Persons,  Body  or  Bodies  Politic  or  Corporate,  so  accepting 
or  taking  such  Goods,  Wares  or  Merchandize  in  Deposit  or  Pledge,  shall  acquire  no 
further  or  other  Bight,  Title  or  Interest  in  or  upon,  or  to  the  said  Goods,  Wares  or 
Merchandize,  or  any  such  Document  as  aforesaid,  than  was  possessed  or  could  or 
might  have  been  enforced  by  the  said  Person  or  Persons  so  possessed  and  intrusted  as 
aforesaid,  at  the  Time  of  such  Deposit  or  Pledge  as  a  Security  as  last  aforesaid  ;  but 
such  Person  or  Persons,  Body  or  Bodies  Politic  or  Corporate,  so  accepting  or  taking 
such  Goods,  Wares  or  Merchandize  in  Deposit  or  Pledge,  shall  and  may  acquire, 
possess  and  enforce  such  Right,  Title  or  Interest  as  was  possessed  and  might  have  been 
enforced  by  such  Person  or  Persons  so  possessed  and  intrusted  as  aforesaid;  anv  Rule 
of  Law,  Usage  or  Custom  to  the  contrary  notwithstanding. 

IV.  And  be  it  further  enacted,  That  from  and  after  the  First  Day  of  October  One 
thousand  eight  hundred  and  twenty  six,  it  shall  be  lawful  to  and  for  any  Person  or 
Persons,  Body  or  Bodies  Politic  or  Corporate,  to  contract  with  anv  Agent  or  Agents, 
intrusted  with  any  Goods,  Wares  or  Merchandize,  or  to  whom  the  same  may  be  con- 
signed, for  the  Purchase  of  auy  such  Goods,  Wares  and  Merchandize,  and  to  receive 
the  same  of  and  pay  for  the  same  to  such  Agent  or  Agents  :  and  such  Contract  and 
Payment  shall  be  binding  upon  and  good  against  the  Owner  of  such  Goods, 
Wares  and  Merchandize,  notwithstanding  such  Person  or  Persons,  Bodv  or  Bodies 
Politic  or  Corporate,  shall  have  Notice  that  the  Person  or  Persons  making  and  enter- 
ing into  such  Contract,  or  on  whose  Behalf  such  Contract  is  made  or  entered  into,  is 
an  Agent  or  Agents:  Provided  such  Contract  and  Payment  be  made  in  the  usual  and 
ordinary  Course  of  business,  and  that  such  Person  or  Persons,  Body  or  Bodies  Politic 
or  Corporate,  shall  not,  when  such  Contract  is  entered  into  or  Payment  made,  have 
Notice  that  such  Agent  or  Agents  is  or  are  not  anthorized  to  sell  the  said  Goods, 
Wares  and  Merchandize,  or  to  receive  the  said  Purchase  Money. 

V.  And  be  it  further  enacted.  That  from  and  after  the  passing  of  this  Act,  it 
shall  lie  lawful  to  and  for  any  Person  or  Persons,  Body  or  Bodies  Politic  or  Corporate, 
to  accept  and  take  any  such  Goods.  Wares  or  Merchandize,  or  any  such  Document  as 
aforesaid,  in  Deposit  or  Pledge  from  any  such  Factor  or  Factors,  Agent  or  Agents, 
notwithstanding  such  Person  or  Persons.  Body  or  Bodies  Politic  or  Corporate,  shall 
have  such  Notice  as  aforesaid,  that  the  Person  or  Persons  making  such  Deposit  or 


538  ENGLISH    STATUTES.  [CHAP.  IV. 

Pledge  is  or  area  Factor  or  Factors,  Agei.t  or  Agents;  but  then  and  in  that  Case  such 
Person  or  Persons,  Body  or  Bodies  Politic  or  Corporate,  shall  acquire  no  further  or 
other  Right,  Title  or  Interest  in  or  upon  or  to  the  said  Goods,  Wares  or  Merchandize,  or 
anv  such  Document  at  aforesaid,  for  the  delivery  thereof,  than  was  possessed  or  could 
or  might  have  been  enforced  by  the  said  Factor  or  Factors,  Agent  ur  Agents,  at  the 
Time  of  Buch  Deposit  or  Pledge  as  a  Security  as  last  aforesaid;  but  such  Person  or 
Persons,  Body  or  Bodies  Politic  or  Corporate,  shall  and  may  acquire,  possess  and  en- 
force such  Bight,  Title  or  Interest  as  was  possessed  and  might  have  been  enforced  by 
such  Factor  or  Factors,  Ageut  or  Agents,  at  the  Time  of  such  Deposit  or  Pledge  as 
aforesaid  ;  anv  Bale  or  Law,  Usage  or  Custom  to  the  contrary  notwithstanding. 

VI.  Provided  always,  and  be  it  enacted,  That  nothing  herein  contained  shall  be 
deemed,  construed  or  taken  to  deprive  or  prevent  the  true  Owner  or  Owners,  or  Pro- 
prietor or  Proprietors,  of  such  Goods,  Wares  or  Merchandize,  from  demanding  aud 
recovering  the  same  from  his,  her  or  their  Factor  or  Factors.  Ageut  or  Agents,  before 
the  same  shall  have  been  so  sold,  deposited  or  pledged,  or  from  the  Assignee  or 
Assignees  of  such  Factor  or  Factors,  Agent  or  Agents/in  the  Event  of  his,  her  or  their 
Bankruptcy ;  uor  to  prevent  such  Owner  or  Owners,  Proprietor  or  Proprietors,  from 
demanding  or  recovering  of  and  from  any  Person  or  Persons,  Body  or  Bodies  Politic 
or  Corporate,  the  Price  or  Sum  agreed  to  be  paid  for  the  Purchase  of  such  Goods, 
Wares  or  Merchandize,  subject  to  the  Right  of  Setoff  on  the  Part  of  such  Person  or 
Persons,  Body  or  Bodies  Politic  or  Corporate,  against  such  Factor  or  Factors,  Agent 
or  Agents;  nor  to  prevent  such  Owner  or  Owners,  Proprietor  or  Proprietors,  from  de- 
manding or  recovering  of  and  from  such  Person  or  Persons,  Body  or  Bodies  Politic  or 
Corporate,  such  Goods,  Wares  or  Merchandize  so  deposited  or  pledged,  upon  Repay- 
ment of  the  Money,  or  on  Restoration  of  the  negotiable  Instrument  or  Instruments  so 
advanced  or  given  on  the  Security  of  such  Goods,  Wares  or  Merchandize  as  aforesaid, 
by  such  Person  or  Persons,  Body  or  Bodies  Politic  or  Corporate,  to  such  Factor  or 
Farters,  Agent  or  Agents;  and  upon  Payment  of  such  further  Sum  of  Money,  or  on 
Restoration  of  such  other  negotiable  Instrument  or  Instruments  (if  any)  as  may  have 
been  advanced  or  given  by  such  Factor  or  Factors,  Agent  or  Agents,  to  such  Owner 
or  Owners,  Proprietor  or  Proprietors,  or  on  Payment  of  a  Sum  of  Money  equal  to  the 
Amount  of  such  Instrument  or  Instruments;  nor  to  prevent  the  said  Owner  or 
(  hvners,  Proprietor  or  Proprietors,  from  recovering  of  and  from  such  Person  or  Persons, 
Body  or  Bodies  Politic  or  Corporate,  any  Balance  or  Sum  of  Money  remaining  in  his, 
her  or  their  Hands,  as  the  Produce  of  the  Sale  of  such  Goods,  Wares  or  Merchandize, 
after  deducting  thereout  the  Amount  of  the  Money  or  negotiable  Instrument  or  Instru- 
ments so  advanced  or  given  upon  the  Security  thereof  as  aforesaid  :  Provided  always, 
that  in  case  of  the  Bankruptcy  of  any  such  Factor  or  Agent,  the  Owner  or  Owners, 
Proprietor  or  Proprietors  of  the  Goods,  Wares  and  Merchandize  so  pledged  and  re- 
deemed as  aforesaid,  shall  be  held  to  have  discharged  pro  tarda  the  Debt  due  by  him, 
her  or*  them  to  the  Estate  of  such  Bankrupt 

VII.  [This  section  provides  the  penalty  for  the  misdemeanor  of  agents  fraudulently 
pit  dging  goods  of  their  principals.] 

VIII.  Provided  always,  and  be  it  further  enacted,  That  nothing  herein  contained 
shall  extend  or  be  construed  to  extend  to  subject  any  Person  or  Persons  to  Prosecu- 
tion, for  having  deposited  or  pledged  any  Goods,  Wares  or  Merchandize  so  intrusted 
or  consigned  to  him,  her  or  them,  provided  the  same  shall  not  be  made  a  Security  for 

tot!  Payment  of  any  greater  Sum  or  Sums  of  money  than  at  the  Time  ot 
such  Deposit  or  Pledge  was  justly  due  and  owing  to  such  Person  or  Persons  from  his. 
her  or  their  Principal  or  Principals:  Provided  nevertheless,  that  the  Acceptance  of 
Bills  of  Exchange  by  such  Person  or  Persons  drawn  by  or  on  account  of  such  Principal 

or  Principals,  shall  nol  I nsidered  as  constituting  any  Part  of  such  Debt  so  due  and 

owing  from  such  Principal  or  Principals  within  the  true  Intent  and  Meaning  of  this 
Ai  *.  so  as  to  excuse  the  Consequence  of  such  a  Deposit  or  Pledge,  unless  such  Bills 
shall  be  paid  when  the  same  shall  respectively  become  due. 

IX.  Provided  also,  and  be  it  further  enacted, That  the  Penalty  by  this  Act  annexed 
to  the  Commission  of    any  Offence    intended    to    be  guarded  against  by  this  Act, 


SECT.  IV.]  ENGLISH   STATUTES.  539 

shall  Dot  extend  01  be  construed  to  extend  to  any  Partner  or  Partners,  or  other 
Person  or  Persons  of  or  belonging  to  any  Partnership,  Society  or  Firm,  except  only 
Buch  Partner  or  Partners,  Person  or  Persons,  as  shall  be  accessary  or  privy  to 
the  Commission  of  such  Offence,  any  Thing  herein  contained  to  the  contrary  in  any 
wise  notwithstanding. 

X.    [Tkia  section  provides  for  remedies  ut  Law  or  equity.] 


5  and  6  VICTORIA,  Cap.  39. 

An  Act  to  amend  the  Law  relating  to  Advances  bona  fide  made  to  Agents  intrusted  with 

Goods. 

Whereas  ....  He  it  therefore  enacted  ....  That  from  and  after  the  passing  of 
this  Act  any  Agent  who  shall  thereafter  be  intrusted  with  the  Possession  of  Goods,  or  of 
the  Documents  of  Title  to  Goods,  shall  he  deemed  and  taken  to  he  the  Owner  of  >n<-\i 
Goods  and  Documents,  so  far  as  to  give  Validity  to  any  Contract  or  Agreement  by 
way  of  Pledge,  Lien,  or  Security  bona  fide  made  by  any  Person  with  such  Agent  so 
intrusted  as  aforesaid,  as  well  for  any  original  Loan,  Advance,  or  Payment  made  upon 
the  Security  of  such  Goods  or  Documents,  as  also  for  any  further  or  continuing  Ad- 
vance in  respect  thereof,  and  such  Contract  or  Agreement  shall  be  binding  upon  and 
good  agaiust  the  Owner  of  such  Goods,  and  all  other  Persons  interested  therein,  not- 
withstanding the  Person  claiming  such  Pledge  or  Lien  may  have  had  Notice  that  the 
Person  with  whom  such  Contract  or  Agreement  is  made  is  only  an  Agent 

II.  And  be  it  enacted,  That  where  any  such  Contract  or  Agreement  for  Pledge, 
Lien,  or  Security  shall  be  made  in  consideration  of  the  Delivery  or  Transfer  to  such 
Agent  of  any  other  Goods  or  Merchandize,  or  Document  of  Title,  negotiable  Security 
upon  which  the  Person  so  delivering  up  the  same  had  at  the  Time  a  valid  and  avail- 
able Lien  and  Security  for  or  in  respect  of  a  previous  Advance  by  virtue  of  some  Con 
tract  or  Agreement  made  with  such  Agent,  such  Contract  and  Agreement,  if  bona  fide 
on  the  Part  of  the  Person  with  whom  the  same  may  he  made,  shall  be  deemed  to  be  a 
Contract  made  in  consideration  of  an  Advance  within  the  true  Intent  and  Meaning  of 
this  Act,  and  shall  be  as  valid  and  effectual,  to  all  Intents  and  Purposes,  and  to  the 
same  Extent,  as  if  the  Consideration  for  the  same  had  been  a  bona  fide  present  Ad- 
vance of  Money :  Provided  always,  that  the  Lien  acquired  under  such  last-mentioned 
Contract  or  Agreement  upon  the  Goods  or  Documents  deposited  in  exchange  shall  not 
exceed  the  Value  at  the  Time  of  the  Goods  and  Merchandize  which,  or  the  Docu- 
ments of  Title  to  which,  or  the  negotiable  Security  which  shall  be  delivered  up  and 
exchanged 

III  Provided  always,  and  be  it  enacted,  That  this  Act.  and  every  Matter  and 
Thing  herein  contained,  shall  be  deemed  and  construed  to  give  Validity  to  such  Con- 
tracts and  Agreements  only,  and  to  protect  only  such  Loans,  Advances,  and  Exchai  _  - 
as  shall  be  made  bona  fide,  and  without  Notice  that  the  Agent  making  such  Contracts 
or  Agreements  as  aforesaid  has  not  Authority  to  make  the  same,  oris  acting  mala 
in  respect  thereof  against  the  Owner  of  such  Goods  and  Merchandize;  and  nothing 
herein  contained  shall  be  construed  to  extend  to  or  protect  any  Lien  or  Pledge  for  or 
in  reaped  of  anj  antecedent  Debt,  owing  from  any  Agent  to  any  Person  with  or  to 
whom  such  Lien  or  Pledge  shall  he  given,  nor  to  authorize  any  Agent  intrusted  as 
aforesaid  in  deviating  from  any  express  (  infers  or  Authority  received  from  the  <  Iwner; 
but  that,  for  the  Purpose  and  to  the  Inteut  of  protecting  all  such  bona  fid*  Loans, 
Advances,  and  Exchanges  as  aforesaid  (though  made  with  Notice  of  such  Agent  not 
being  the  <  >wner,  but  without  Notice  of  the  Agent's  acting  without  Authority),  and  to 
no  further  or  other  Intent  or  Purpose,  such  Contract  or  Agreement  as  aforesaid  shall 
iding  on  the  Owner  and  all  other  Persons  interested  in  such  Goods 

IV.  And  be  it  enacted.  That  anv  Bill  of  Lading,  India  Warrant,  Dock  Warrant. 
Warehouse  Keeper's  Certificate.  Warrant,  or  Order  for  Delivery  of  Goods,  or  any 
other  Document  used  in  the  ordinary  Course  of  Business  as  Proof  of  the  Possession  or 


540  ENGLISH   STATUTES.  [CHAP.  IV. 

Control  of  Goods,  or  authorizing  or  purporting  to  authorize,  either  by  Indorsement  or 
by  Delivery,  the  Possessor  of  such  Document  to  transfer  or  receive  Goods  thereby 
represented,  shall  be  deemed  and  taken  to  be  a  Document  of  Title  within  the  Mean- 
ing of  this  Act;  and  any  Agent  intrusted  as  aforesaid,  and  possessed  of  any  such 
Document  of  Title,  whether  derived  immediately  from  the  Owner  of  such  Goods,  or 
obtained  by  reason  of  such  Agent's  having  been  intrusted  with  the  Possession  of  the 
Goods,  or  of  any  other  Document  of  Title  thereto,  shall  be  deemed  and  taken  to  have 
been  intrusted  with  the  Possession  of  the  Goods  represented  by  such  Document  of 
Title  as  aforesaid,  and  all  Contracts  pledging  or  giving  a  Lieu  upon  such  Document 
of  Title  as  aforesaid  shall  be  deemed  and  taken  to  be  respectively  Pledges  of  and 
Liens  upon  the  Goods  to  which  the  same  relates  ;  and  such  Agent  shall  be  deemed  to 
be  possessed  of  such  Goods  or  Documents,  whether  the  same  shall  be  in  his  actual 
Custody,  or  shall  be  held  by  any  other  Person  subject  to  his  Control  or  for  him  or  on 
his  Behalf  ;  and  where  any  Loan  or  Advance  shall  be  bona  fide  made  to  any  Agent  in- 
trusted with  and  in  possession  of  any  such  Goods  or  Documents  of  Title  as  aforesaid, 
on  the  Faith  of  any  Contract  or  Agreement  in  writing  to  consign,  deposit,  transfer,  or 
deliver  such  Goods  or  Documents  of  Title  as  aforesaid,  and  such  Goods  or  Documents 
of  Title  shall  actually  be  received  by  the  Person  making  such  Loan  or  Advance,  with- 
out Notice  that  such  Agent  was  not  authorized  to  make  such  Pledge  or  Security, 
every  such  Loan  or  Advance  shall  be  deemed  and  taken  to  be  a  Loan  or  Advance  on 
the  Security  of  such  Goods  or  Documents  of  Title  within  the  Meaning  of  this  Act, 
though  such  Goods  or  Documents  of  Title  shall  not  actually  be  received  by  the  Per- 
son making  such  Loan  or  Advance  till  the  Period  subsequent  thereto ,  and  any  Con- 
tract or  Agreement,  whether  made  direct  with  such  Agent  as  aforesaid,  or  with  any 
Clerk  or  other  Person  on  his  Behalf,  shall  be  deemed  a  Contract  or  Agreement  with 
such  Agent,  and  any  Payment  made,  whether  by  Money  or  Bills  of  Exchange,  or 
other  negotiable  Security,  shall  be  deemed  and  taken  to  be  an  Advance  within  the 
Meaning  of  this  Act ;  and  an  Agent  in  possession  as  aforesaid  of  such  Goods  or  Docu- 
ments shall  be  taken,  for  the  Purpose  of  this  Act.  to  have  been  intrusted  therewith  by 
the  '  >wner  thereof,  unless  the  contrary  can  be  shown  in  Evidence. 

V.  Provided  always,  and  lie  it  enacted,  That  nothing  herein  contained  shall  lessen, 
vary,  alter,  or  affect  the  civil  Responsibility  of  an  Agent  for  any  Breach  of  Duty  or 
Contract,  or  Xoufulfilment  of  his  Orders  or  Authority  in  respect  of  any  such  Contract, 
Agreement,  Lien,  or  Pledge  as  aforesaid. 

VI.  [This  section  declares  an  ayent  making  consignments  contrary  to  instruction  of 
principal,  guilty  of  misdemeanor.] 

VII.  Provided  also,  and  be  it  enacted,  That  nothing  herein  contained  shall  prevent 
such  Owner  as  aforesaid  from  having  the  Bight  to  redeem  such  Goods  or  Documents 
of  Title  pledged  as  aforesaid,  at  any  Time  before  such  Goods  shall  have  been  sold, 
upon  Repayment  of  the  Amount  of  the  Lien  thereon,  or  Restoration  of  the  Securities 
in  respect  of  which  such  Lieu  may  exist,  and  upon  Payment  or  Satisfaction  to  such 
Agent,  if  by  him  required,  of  any  Sum  of  Money  for  or  in  respect  of  which  such 
Agent  would  by  Law  be  entitled  to  retain  the  same  Goods  or  Documents,  or  any  of 
them,  by  way  of  Lien  as  against  such  Owner,  or  to  prevent  the  said  Owner  from  re- 
covering of  and  from  such  Person  with  whom  any  such  Goods  or  Documents  may  have 
been  pledged,  or  who  shall  have  any  such  Lien  thereon  as  aforesaid,  any  Balance  or 
Sum  of  .Money  remaining  in  his  Hands  as  the  Produce  of  the  Sale  of  such  Goods,  after 
deducting  the  Amount  of  the  Lien  of  such  Person  under  such  Contract  or  Agreement 
as  aforesaid  Provided  always,  that,  in  case  of  the  Bankruptcy  of  any  such  Agent  the 
Owner  of  the  Goods  which  shall  have  been  so  redeemed  by  such  Owner  as  aforesaid 
shall,  in  respect  of  the  Sum  paid  by  him  on  account  of  such  Agent  for  such  Redemp- 
tion, be  held  to  have  paid  such  Sum  for  the  Use  of  such  Agent  before  his  Bankruptcy, 
or  in  case  the  floods  shall  not  be  so  redeemed  the  Owner  shall  be  deemed  a  Creditor 

[or  the  Value  of  Goods  bo  pledged  at  the  Time  of  the  Pledge,  and  shall, 
if  he  s'n.ll  think  fit.  be  entitled  in  either  of  such  Gases  to  prove  for  or  set  off  the  Sum 
so  paid,  or  the  Value  of  such  Goods  as  the  Case  may  be. 


SECT.  IV.]  FUENTES   V.    MONTIS.  541 


FUENTES  v.  MONTIS. 

In  the  Common  Pleas,  February  10,  18G8. 

[Reported  in  Law  Reports,  ■'}  Common  Pleas,  268.] 

Willes,  J.  In  this  case,  the  plaintiffs,  Messrs.  Fuentes,  had  con- 
signed a  quantity  of  wine  to  a  person  named  De  Ponte,  for  sale.  When 
he  received  the  wines,  De  Ponte  was,  no  doubt,  and  for  some  time  after- 
wards continued  to  be,  an  agent  in  possession  of  and  intrusted  with  the 
wines,  so  as  to  come  within  the  provisions  of  the  Factors  Acts.  Messrs. 
Fuentes  became  dissatisfied  with  his  conduct  as  agent,  appointed  Messrs. 
Collier  to  act  for  them  in  that  capacity,  and  gave  De  Ponte  to  understand 
that  his  agency  was  at  an  end,  and  required  him  to  hand  over  the  wines 
remaining  in  his  hands  to  Messrs.  Collier.  De  Ponte  refused  to  comply 
with  this  request,  and  refused  without  any  good  reason,  because  he 
appears  to  have  had  no  claim  against  Messrs.  Fuentes  b}'  way  of  lien 
or  otherwise.  It  was  his  duty  as  agent  to  give  up  the  wines;  and,  in 
retaining  the  documents  of  title  (which  for  the  purposes  of  the  Factors 
Acts  are  the  same  as  the  goods  themselves),  he  was  guilty  of  a  wrong. 
That  state  of  wrongful  possession  by  De  Ponte  continued  for  some  time 
after  the  revocation  of  his  authority  and  the  demand  of  the  wines  and 
the  documents  of  title  on  behalf  of  Messrs.  Fuentes;  and  during  that 
wrongful  possession,  and  after  the  revocation  of  his  authority  as  agent, 
De  Ponte  obtained  an  advance  on  the  security  of  the  documents  of  title, 
which  advance  would  have  been  protected  by  the  Factors  Acts,  and 
effectual  to  give  the  lenders,  Messrs.  Montis,  a  valid  pledge  of  the 
documents  of  title  to  the  wines,  supposing  there  had  been  no  revocation 
of  De  Ponte's  authority.  The  question,  therefore,  is  neatly  raised, 
whether  an  agent  who  has  once  been  intrusted  with  and  remains  in 
possession  of  goods  or  the  documents  or  title  thereto,  continues  to  have 
authority  quoad  third  persons  who  bona  fide  make  an  advance,  so  as 
to  give  them  a  title  as  against  his  principal,  notwithstanding  that  before 
the  right  of  the  lender  arises  the  authority  which  the  agent  had  has  been 
revoked,  so  that,  as  between  himself  and  his  principal,  he  has  ceased 
to  be  an  agent,  and  has  become  a  person  occupying  the  relation  simply 
of  a  wrongdoer  in  detaining  the  goods  or  the  documents  of  title.  That 
question  has  been  argued  before  us  with  great  acumen,  and  we  are  much 
indebted  to  the  learned  counsel  on  both  sides  for  the  assistance  we  have 
received  from  them.  The  question  is  one  of  considerable  nicety.  But, 
as  we  have  had  an  opportunity  of  thinking  it  over,  we  consider  it  right 
to  pronounce  our  opinion  upon  it  at  once.  It  is  a  question  of  nicety, 
not  only  as  depending  on  the  construction  of  the  Acts  of  Parliament 
relating  to  factors,  but  also  because  it  belongs  to  a  class  of  questions 
upon  which  great  differences  of  opinion  have  existed  amongst  mercantile 
men.  though  not  amongst  lawyers  ;  that  is,  the  class  of  questions  which 
relate  to  how  far  a  person  who  is  not  the  real  owner  of  goods,  but  who 


542  FUEXTES   V.    MONTIS.  [CHAP.  IV. 

appears  to  the  world,  or  rather  to  those  who  deal  with  him,  as  owner, 
and  who  deal  with  him  on  the  faith  of  his  apparent  ownership,  should 
be  allowed  to  confer  upon  a  third  person  a  greater  title  than  he  himself 
has.  With  respect  to  certain  sorts  of  property,  everybody  is  agreed 
that  there  is  no  restriction  of  the  power  of  the  apparent  owner  to  trans- 
fer a  right  to  any  person  who  takes  it  from  him  bona  fide ;  as  in  the 
case  of  the  ordinary  currency  of  the  country,  or  that  which  has  for 
mercantile  convenience  been  put  upon  the  same  footing,  viz.,  bills  of 
exchange  and  other  negotiable  instruments,  including  bills  of  lading, 
as  against  stoppage  in  transitu  only.  Every  one  is  agreed  that,  with 
respect  to  the  ordinary  currency,  and  bills  of  exchange  whilst  running, 
a  person  who  receives  them  bona  fide  and  for  value  is  entitled  to  hold 
them  notwithstanding  any  infirmity  of  title  in  the  person  from  whom  he 
obtains  them.  That,  however,  is  far  from  being  so  as  to  ordinary  mer- 
chandise. The  only  cases  which  at  the  moment  occur  to  my  mind  in 
which  a  man  may  give  to  another  a  better  title  to  goods  than  he  himself 
has,  are,  the  case  of  a  sale  in  market  overt,  in  which  case  the  buyer 
acquires  a  title  to  the  goods  whatever  may  have  been  the  right  of  the 
seller,  _  probably  because  of  the  publicity  of  the  transaction  and  the 
inconvenience  which  would  result  from  the  adoption  of  any  other  rule. 
And  even  to  this  there  are  exceptions,  arising  out  of  the  statute  of 
restitution.  A  second  case  which  may  be  put  is  the  case  of  a  man  sell- 
ing goods  under  circumstances  in  which  he  might  rescind  the  contract 
on  the  ground  of  fraud  in  the  buyer:  if  the  buyer  has  obtained  posses- 
sion, that  possession  as  against  the  seller  is  wrongful ;  but  if  the  buyer, 
before  the  seller  has  exercised  his  option  of  rescinding  the  contract,  has 
sold  the  goods  to  a  bona  fide  purchaser,  such  bona  fide  purchaser  would 
be  entitled  to  retain  them  as  against  the  seller,  notwithstanding  the 
latter  has  been  defrauded.  A  third  case  in  which  a  man  may  convey  a 
better  title  to  goods  than  he  himself  had,  and  one  which  is  more  appo- 
site to  the  present,  is,  where  an  agent  who  carries  on  a  public  business 
deals  with  the  goods  in  the  ordinary  course  of  it,  though  he  has  received 
secret  instructions  from  his  principal  to  deal  with  them  contrary  to  the 
ordinary  course  of  that  trade.  In  that  case  he  has  what  has  been  some- 
times called  an  apparent  authority,  or,  as  my  brother  Byles  more 
accurately  calls  it,  an  ostensible  authority,  to  deal  in  such  a  way  with 
the  goods  as  agents  ordinarily  deal  with  them  ;  and,  if  he  deals  with 
them  in  the  ordinary  way  of  the  trade,  he  binds  his  principal.  These 
instances,  however,  are  exceptional  to  the  rule  that  no  man  can  give  a 
better  title  to  goods  than  he  has  himself,  and  that  the  real  owner  is  not 
bound  except  to  the  extent  of  an  interest  which  he  has  parted  with  or 
an  authority  which  he  has  given.  Now,  the  result  of  that  state  of  the 
law  with  respect  to  agents  employed  to  sell,  led  to  the  course  of  legisla- 
tion which  is  known  by  the  general  description  of  the  Factors  Acts; 
because  it  was  held  by  the  courts  of  law  that  the  case  of  a  pledge  of 
good9  by  a  factor  intrusted  with  the  possession  of  goods,  and  authorized 
to  sell  them,  fell  within  the  general  rule  to  which  the  instances  above 


SECT.  IV.]  FUENTES   V.    MONTIS.  543 

enumerated  are  exceptions,  and  that  it  did  not  fall  within  the  exceptions 
by  reason  of  a  pledge  being  an  ordinary  and  accustomed  transaction  to 
be  entered  into  by  a  person  intrusted  as  agent  to  sell,  or  perhaps  more 
properly  by  reason  of  the  courts  of  law  having  treated  a  pledge  as  being 
out  of  the  scope  of  an  authority  to  sell. 

The  legislature  seem  to  have  considered  that  to  be  too  narrow  a  view 
of  the  proper  scope  of  the  authority  of  an  agent  to  sell ;  and  they  were 
no  doubt  induced  to  think  so  by  reason  of  the  altered  mode  of  conduct- 
ing mercantile  transactions  in  modern  times,  and  because  it  had  become 
a  usual  and  accustomed  course  for  factors  intrusted  with  goods  for  sale, 
to  make  advances  to  their  principals  either  in  money  or  by  the  accept- 
ance of  bills  against  their  consignments,  and  to  keep  themselves  in 
funds  by  repledging  the  documents  of  title  with  bankers  or  other  money 
dealers.  But,  whatever  may  have  been  the  reason,  it  is  clear  that  that 
was  the  particular  evil  which  the  legislature  sought  to  remedy  by  the 
Factors  Acts.  And  if  it  be  proper,  in  construing  a  statute,  to  look  at 
the  mischief  intended  to  be  remedied,  —  which  Lord  Coke  says  is  one 
of  the  rules  for  construction  of  acts  of  Parliament,  —  one  would  con- 
strue such  a  statute  with  the  expectation  of  finding  that  the  legislature 
would  deal  with  the  class  to  which  persons  who  in  the  usual  course  of 
business  advance  mone}-  on  goods  coming  to  them  for  sale  belong,  and 
who  previously  could  not  pledge  beyond  their  own  advances,  because 
the  authority  of  the  agent,  as  between  himself  and  his  principal,  was 
limited  to  contracts  of  sale,  and  not  capable  of  being  extended  by  con- 
struction to  contracts  of  pledge.  That  anticipation  of  what  the  legisla- 
ture intended  by  the  Factors  Acts,  if  we  are  to  rely  upon  a  series  of 
decisions  upon  them,  to  some  of  which  reference  has  been  made,  and 
all  of  which  are  in  harmony,  would  turn  out  to  be  correct,  because  it 
has  from  time  to  time  been  held  that,  notwithstanding  general  terms 
used  here  and  there  throughout  those  acts,  which,  taken  by  themselves, 
might  be  held  to  include  all  agents  or  persons  intrusted,  those  general 
expressions  are  to  be  construed  with  reference  to  the  general  scope  and 
object  of  the  acts  as  well  as  to  the  particular  language  used,  so  as  to 
limit  their  operation  to  the  case,  first,  of  persons  intrusted  as  agents. 
Take  the  case  which  it  was  sought  at  one  time  to  bring  within  the 
operation  of  the  acts,  of  a  seller  handing  to  the  buyer  a  document  of 
title,  —  it  might  be  said  that  the  buyer  was  a  person  intrusted  with  and 
in  possession  of  the  document  of  title,  and,  if  he  dealt  with  it  in  the 
ordinary  course  of  business  under  the  first  or  second  of  the  Factors 
Acts  he  ought  to  give  a  complete  title  as  against  the  seller.  But  one 
of  the  earliest  decisions  upon  the  construction  of  the  6  Geo.  4,  c.  94.  ami 
a  decision  which  has  never  been  quarrelled  with,  is  Jenkins  v.  Usborne, 
7  M.  iV:  (1.  r>7.s.  where  it  was  held  that  the  buyer  in  such  a  case  is  not 
a  person  "intrusted"  or  "in  possession"  within  the  meaning  of  the 
act.  because  he  was  not  intrusted  as  an  agent,  and  therefore  a  person 
who  buys  from  him  a  dock-warrant  or  other  document  of  title,  is,  as 
against  the  seller,  in  no  better  position  than  the  buyer  himself,  and  so 


514  FUENTES   V.   MONTIS.  [CHAP.  IV. 

the  right  to  stop  in  transitu  is  not  excluded.  Next  it  was  held  that, 
not  only  must  the  person  be  intrusted  as  agent,  but  he  must  be  intrusted 
as  agent  in  a  mercantile  transaction  ;  and  therefore  a  mere  servant 
intrusted  with  a  document  of  title,  though  an  agent  in  one  sense,  is  not 
so  in  the  sense  of  the  act,  and  therefore  cannot,  as  against  his  master, 
give  to  another  a  right  which  he  himself  had  not.  Next,  it  appears 
that  not  only  must  the  person  intrusted  be  an  agent,  but  he  must  be  an 
agent  for  sale;  and  that  would  exclude  the  case  of  a  carrier  or  ware- 
houseman, who  is  in  some  sense  an  agent  and  intrusted  with  the  pos- 
session of  goods.  The  agents  contemplated  by  the  Factors  Acts  are 
agents  intrusted  for  sale.  I  do  not  mean  to  limit  the  operation  of  the 
statute  to  agents  intrusted  with  goods  for  future  sale,  either  generally 
or  in  the  particular  instance.  It  is  necessary  to  guard  oneself  in  that 
respect,  because  every  one  is  aware  of  the  case  of  the  commission-agent 
who  informed  the  owners  of  goods  that  he  had  an  opportunity  of  selling 
them,  and,  having  got  samples,  represented  that  he  had  sold  the  goods 
to  a  person  who  it  was  afterwards  discovered  had  no  existence,  and, 
having  by  that  fraud  got  possession  of  the  goods,  pledged  them  to  a 
third  person,  who  made  an  advance  bona  fide  and  without  notice  of  the 
fraud  ;  and  it  was  held  that  the  latter  acquired  a  good  title  to  the  goods 
under  the  Factors  Acts.  I  allude  to  the  case  of  Baines  v.  Swainson, 
4  B.  &  S.  270;  32  L.J.  (Q.  B.)  281,  which  Mr.  Channell  evidently  had 
in  his  mind  when  he  made  a  very  pertinent  observation,  which  I  shall 
refer  to  by-and-by.  The  court  in  that  case  labored  hard  to  show  that 
the  person  was  intrusted  with  and  in  the  possession  of  the  goods  as 
agent,  and  as  agent  for  sale,  though  he  was  not  when  first  intrusted  an 
agent  for  the  future  sale  of  the  goods,  was  still  within  the  operation  of 
the  Factors  Acts,  because  he  was  an  agent  for  sale,  and  his  employment 
was  connected  with  the  sale,  as  was  put  by  Crompton,  J.  The  court 
took  pains  to  show  that  the  judge  who  tried  the  cause,  and  who  at  first 
thought  that,  as  the  intrusting  was  not  for  sale  generally,  it  did  not 
come  within  the  Factors  Acts,  was  wrong.  That  case,  however,  is 
strong  to  show  the  extreme  limit  to  which  the  Factors  Acts  have  been 
pushed  ;  and  it  was  properly  referred  to  for  that  purpose.  But  it  is 
necessary  not  only  to  show  that  the  person  intrusted  is  an  agent  and  an 
agent  for  sale,  but  it  is  necessary  also,  as  Mr.  Channell  pointed  out, 
that  he  was  intrusted  with  the  particular  goods  as  an  agent  for  sale  or 
for  an  object  connected  with  the  sale,  —  to  avoid  coming  into  collision 
with  the  case  of  Baines  v.  Swainson,  4  B.  &  S.  270;  32  L.  J.  (Q.  B.) 
281,  to  which  I  entirely  assent. 

Here  it  is  necessary  to  consider  the  state  of  the  law  as  to  an  agent 
intrusted  with  goods,  but  not  for  the  purpose  of  sale,  because  it  differs 
from  that  which  relates  to  other  agents.  In  the  case  of  an  agent  whose 
general  business  it  is  to  sell,  being  intrusted  with  goods  for  a  purpose 
other  than  that  of  sale,  as  upon  a  pledge  for  an  advance  of  money,  with 
instructions  nol  to  sell;  or,  if  he  happen  to  have  a  warehouse,  though 
his  general  business  is  that  of  a  factor  and  not  of  a  warehouse-keeper, 


SECT.  IV.]  FUENTES   V.    MONTIS.  545 

and  goods  aro  placed  in  his  warehouse  at  a  rent :  in  either  of  these 
cases  he  would  be  a  person  who  prima  facie  would  appear  to  be  justi- 
fied in  dealing  with  the  goods  as  factor:  and  yet  there  is  an  express 
provision  as  to  such  a  person  (for  one  cannot  doubt  that  the  judges  in 
Baines  v.  Swainson,  siqora,  were  right  in  so  expounding  the  section), 
that  lie  shall  be  only  prima  facie  in  a  position  to  deal  with  his  princi- 
pal's goods  more  largely  than  as  agent  he  could  do,  and  that  his  princi- 
pal may  repel  the  presumption  of  his  more  enlarged  authority  under  the 
Factors  Acts,  and  show  the  real  nature  of  the  transaction  between  them. 
That  provision  is  (5  &  6  Vict.  c.  39,  §  4),  "an  agent  in  possession  of 
such  goods  or  documents  shall  be  taken,  for  the  purposes  of  this  act, 
to  have  been  intrusted  therewith  by  the  owner  thereof,  unless  the  con- 
trary can  be  shown  in  evidence."  That  provision  in  the  4th  section  of 
the  .">  iV  <»  Vict.  c.  39,  has  been  applied  to  the  extreme  by  Blackburn.  J., 
in  his  judgment  in  Baines  v.  Swainson,  4  B.  &  S.  270,  285  ;  32  L.  J. 
(Q.  B.)  281,  288,  where  he  says  :  "  I  do  not  agree  with  the  counsel  for 
the  defendants,  that  the  mere  fact  of  an  agent  being  found  in  possession 
of  goods,  although  they  have  been  handed  to  him  by  the  owner  knowing 
that  he  carries  on  such  a  business,  amounts  to  an  'intrusting'  him  as 
agent ;  though  I  think  that,  under  that  part  of  §  4  of  Statute  5  &  G  Vict. 
c.  39,  to  which  I  have  referred,  the  fact  of  a  person  being  put  into  pos- 
session of  goods  calls  upon  the  person  who  gave  him  possession  to 
explain  and  show  that  it  was  not  an  intrusting."  But  for  that  guidance. 
I  might  rather  have  inclined  to  read  that  last  clause  of  the  4th  section 
as  applicable  to  the  cases  provided  for  in  the  previous  part  of  it,  and  to 
be  satisfied  with  the  case  in  which  the  factor  has  been  held  to  be  intrusted 
with  the  possession  of  documents  of  title  which  he  has  been  enabled  to 
obtain  by  reason  of  his  having  been  intrusted  with  other  documents 
which  led  to  the  acquisition  of  the  former.  But  I  will  not  criticise  the 
opinion  there  thrown  out.  but  will  adopt  it  for  the  purpose  of  the  present 
case.  Here  is  the  case  of  an  agent  whose  general  business  brings  him 
within  the  scope  of  the  act.  who,  being  in  possession  of  goods  belonging 
to  a  principal,  has  pledged  them.  What  is  the  result?  Is  it  that  a 
person  who  has  innocently  dealt  with  the  agent  by  reason  of  his  general 
character  and  employment,  is  to  take  advantage  of  the  apparent  owner- 
ship of  the  agent,  as  a  buyer  in  market  overt  would?  or  is  he  to  be 
subjecl  to  some  afterclap,  some  proof  Ivy  the  owner  that  he  was  not  so 
intrusted  as  to  bring  him  within  the  acts?  Let  the  statute  speak  for 
itself.  Its  words  are:  "an  agent  in  possession  as  aforesaid  of  such 
goods  or  documents  shall  be  taken,  for  the  purposes  of  this  act,  to  have 
been  intrusted  therewith  by  the  owner  thereof,  unless  the  contrary  shall 
be  proved  in  evidence."  The  inevitable  conclusion  is,  that,  if  the  con- 
trary can  be  proved  in  evidence,  "an  agent  in  possession  as  aforesaid 
of  such  goods  or  documents,"  is  not  to  be  taken  to  be  "intrusted  there- 
with by  the  owner  thereof." 

That  introduces  the  argument  which  was  urged  on  the  part  of  the 
plaintiffs,  and  well  illustrated  by  the  case  put  by  Mr.  Channell,  in  which 

35 


546  FUENTES   V.    MONTIS.  [CHAP.  IV. 

the  claim  of  a  person  bona  fide  making  an  advance  to  the  factor  may 
be  defeated.  That  is  the  case  of  goods  pledged  with  a  factor,  but  not 
intrusted  to  him  in  his  business  of  a  factor.  I  draw  two  conclusions 
from  the  state  of  the  law  of  which  I  have  endeavored  to  give  a  sum- 
mary, not  dwelling  for  the  present  upon  the  precise  language  of  the 
acts,  but  upon  the  construction  which  has  been  put  upon  them,  with  a 
view  to  see  whether  that  construction  enables  us  to  come  to  a  decision 
upon  this  case.  The  conclusion  to  which  the  course  of  the  decisions 
compels  me  to  come  is  that  which  is  expressed  by  Blackburn,  J.,  in 
Baines  v.  Swainson,  supra,  viz.,  that  the  authority  given  by  the  Factors 
Acts  quoad  third  persons  is  an  authority  superadded  and  accessory  to 
the  ordinary  authority  given  by  a  principal  to  his  agent.  It  was  not 
intended  by  those  acts  to  provide  a  remedy  for  all  the  hardships  which 
may  occur  to  innocent  persons  by  dealing  with  one  in  the  apparent 
ownership  of  goods  as  if  he  were  the  real  owner ;  but  only  with  cases 
where  the  agent  is  intrusted  with  and  in  possession  of  the  goods  with 
the  assent  of  the  true  owner  of  them. 

Much  argument  has  been  urged  upon  the  words  "intrusted  and  in 
possession."  But  it  appears  to  me  that,  before  you  can  deal  with  the 
state  of  being  intrusted  or  in  possession,  you  must  get  your  substantive, 
viz.,  agent.  The  person  who  is  to  give  a  title  as  against  the  principal 
or  owner  of  the  goods  must  be  an  agent.  If  he  has  no  right  to  the 
possession  as  agent,  the  provisions  of  the  Factors  Acts  as  to  pledging 
do  not  apply  to  him. 

I  might  desire  that  it  was  in  the  power  of  the  judges  to  amend  the 
law  from  time  to  time  with  reference  to  mercantile  convenience.  And, 
if  there  were  a  large  preponderance  of  opinion  amongst  mercantile  men 
that  there  ought  to  be  a  free  power  of  transfer  of  goods  by  persons 
having  the  apparent  ownership,  I  might  feel  disposed  to  exercise  that 
power,  if  it  had  existed,  in  favor  of  the  opinion  of  such  majority.  But, 
were  I  to  do  this,  I  should  be  doing  an  unconstitutional  act.  And  I 
cannot  help  taking  warning  against  interfering  with  the  intentions  of 
the  legislature  from  any  notions  of  expediency,  when  I  recollect  what 
took  place  in  Kingsford  v.  Merry,  11  Exch.  577;  25  L.  J.  (Ex.)  166. 
There  one  Anderson  falsely  and  fraudulently  represented  to  the  plain- 
tiffs that  he  was  authorized  by  and  acting  on  behalf  of  Van  Nottin  & 
Co.  in  procuring  certain  goods,  and  the  plaintiffs,  in  consequence 
of  such  false  and  fraudulent  representation,  delivered  the  goods  to 
Anderson  with  intent  to  transfer  to  him  the  property  in  them,  and 
Anderson  pledged  the  goods  with  the  defendant  for  a  bona  fide  advance  ; 
and  the  Court  of  Exchequer  held  that  the  plaintiffs  could  not  maintain 
an  action  for  the  goods  without  tendering  or  paying  the  defendant  his 
advance,  upon  the  principle  that,  "when  a  vendee  obtains  possession 
of  a  chattel  with  the  intention  by  the  vendor  to  transfer  both  the  prop- 
erty and  possession,  although  the  vendee  has  committed  a  false  and 
fraudulent  misrepresentation  in  order  to  effect  the  contract  or  obtain 
the  possession,  the  property  vests  in  the  vendee  until  the  vendor  has 


SECT.  IV.]  FUENTES   V.    MONTIS.  547 

done  some  act  to  disaffirm  the  transaction."  But,  when  the  case 
came  before  the  Exchequer  Chamber,  the  (acts  as  they  were  stated  for 
the  opinion  of  the  Court  of  Error  not  sustaining  the  conclusion  of  fact 
upon  which  the  court  below  relied,  the  judgment  was  reversed.  The 
ground  of  the  decision  in  the  Exchequer  Chamber  was,  that  "the  plain- 
tiffs and  Anderson  never  did  stand  in  the  relation  of  vendor  and  vendee 
of  the  goods,  and  that  there  was  no  contract  between  them  which  the 
plaintiffs  might  either  affirm  or  disaffirm."  Thus,  the  man  who  inno- 
cently advanced  his  money  upon  the  faith  of  the  apparent  ownership  of 
the  goods  in  Anderson  was  held  to  have  no  title  to  the  goods.  Every  - 
body  is  aware  of  the  great  attention  which  that  case  excited  amongst 
mercantile  men,  and  what  a  large  amount  of  consideration  and  discus- 
sion ensued  by  men  of  great  ability  and  reflection,  especially  as  to  the 
expediency  of  expanding  the  principle  of  the  Factors  Acts  so  as  to 
meet  the  case  of  apparent  ownership  ;  and  one  cannot  but  remember 
that  all  that  consideration  and  discussion  failed  to  lead  to  any  practical 
result ;  the  law  remaining  as  it  was  before.  I  am  at  all  times  anxious 
to  give  full  effect  to  the  intention  of  the  legislature  as  expressed  in  the 
language  they  have  used.  But  I  do  not  feel  myself  at  liberty,  from  any 
notions  of  expediency  which  I  may  entertain,  to  go  beyond  that  which 
I  find  written.  1  therefore  feel  compelled  to  deal  with  the  acts  of  Par- 
liament in  question  according  to  the  expressions  I  find  there,  always 
bearing  in  mind  that  the  substantive  thing  that  is  being  dealt  with  is  an 
agent.  I  take  the  1st  section  of  the  5th  and  6th  of  the  Queen,  —  "From 
and  after  the  passing  of  this  act,  an}-  agent  who  shall  thereafter  be 
intrusted  with  the  possession  of  goods,  or  of  the  documents  of  title  to 
goods,  shall  be  deemed  and  taken  to  be  the  owner  of  such  goods  and 
documents,  so  as  to  give  validity  to  any  contract  or  agreement  by  way 
of  pledge,  lien,  or  security,  bona  fide  made  by  an}-  person  with  such 
agent  so  intrusted  as  aforesaid,  as  well  for  any  original  loan,  advance, 
or  payment  made  upon  the  security  of  such  goods  or  documents,  as  also 
for  any  further  or  continuing  advance  in  respect  thereof;  and  such 
contract  or  agreement  shall  be  binding  upon  and  good  against  the 
owner  of  the  goods  and  all  other  persons  interested  therein,  notwith- 
standing the  person  claiming  such  pledge  or  lien  may  have  had  notice 
that  the  person  with  whom  such  contract  or  agreement  is  made  is  only 
an  agent.''  Where  the  word  "agent"  is  not  repeated,  I  assume  that  it 
must  be  read  down.  I  therefore  come  to  the  conclusion  that  the  person 
who  is  to  create  a  valid  pledge  of  his  principal's  goods  must  be  an 
agent  who  is  intrusted  at  the  time  of  doing  the  act  which  is  to  have 
thai  effect,  That  being  so,  it  appears  to  me  that  an  agent  whose 
authority  has  been  revoked,  and  who  wrongfully  retains  possession  of 
goods  which  he  is  bound  to  give  up,  at  the  time  when  he  purports  to 
make  a  pledge,  is  not  an  agent  at  all.  but  a  wrongdoer,  and  is  not 
within  the  acts,  nor  is  the  pledge  a  transaction  within  their  protection. 
It  appears  to  me  that  the  Factors  Acts  will  be  fully  satisfied  by  holding 
the  effect  of  them  to  be,  that  a  man  who  places  goods,  or  the  documents 


548  COLE   V.   NORTHWESTERN   LANK.  [CHAP.  IV. 

of  title  to  goods,  in  the  hands  of  an  agent  for  sale,  or  for  a  purpose 
connected  with  sale,  shall  he  taken  to  have  given  the  agent  authority 
to  pledge,  and  such  authority  continues  so  long  as  the  agency  continues  ; 
and  that  the  authority  given  to  the  agent  quoad  third  persons  is  an 
authority, juris  et  dejure,  superadded  and  accessory  to  the  agency,  and 
ceases  when  his  possession  as  agent  ceases.  And  I  can  no  more  come 
to  the  conclusion  that  a  person  who  is  "in  possession,"  but  who  has 
ceased  to  be  "intrusted,"  and  ceased  to  be  agent,  can  have  a  right  to 
pledge  so  as  to  confer  upon  the  pledgee  the  rights  created  by  the  Fac- 
tors Acts,  than  I  can  come  to  the  conclusion  that  a  person  who  was 
"intrusted,"  but,  who  has  ceased  to  be  "in  possession,"  can  have  such 
right,  which  he  clearly  could  not. 

For  these  reasons,  I  am  of  opinion  that  Messrs.  Montis  had  no  right 
to  hold  the  wines  in  question  as  against  Messrs.  Fuentes  ;  and,  having 
considered  the  case  with  all  the  anxiety  which  its  novelty  and  nicety 
and  the  worth  of  the  arguments  which  have  been  addressed  to  us 
demanded,  I  feel  compelled  to  come  to  the  conclusion  that  the  verdict 
for  the  plaintiffs  ought  to  stand,  and  that  the  rule  should  be  discharged. 

Mule  discharged.1 


COLE  v.   NORTHWESTERN  BANK. 
In  the  Exchequer  Chamber,  February  12,  1875. 

[Reported  in  Law  Reports,  10  Common  Pleas,  354.] 

Blackburn,  J.  This  is  a  special  case  on  which  the  Court  of  Com- 
mon Pleas  gave  judgment  for  the  plaintiffs  for  the  sum  of  £6,601  Is.  ~<l 
The  defendants  brought  error  on  that  judgment,  and  the  case  was 
argued  in  the  Exchequer  Chamber  on  the  4th  and  5th  of  February 
last,  by  Mr.  Benjamin  for  the  defendants  (the  plaintiffs  in  error)  and 
Air.  Herschell  for  the  plaintiffs  (the  defendants  in  error),  before  my 
lirothers  Bramwell,  Mellor,  Lush,  Cleasby,  Pollock,  and  Amphlett.  and 
myself,  when  we  took  time  to  consider. 

The  case  was  stated  without  pleadings.  It  did  not  as  originally 
drawn  give  express  power  to  the  court  to  draw  inferences  of  fact:  but, 
on  that  being  pointed  out  during  the  argument,  it  was  agreed  that  it 
was  so  intended,  and  that,  if  necessary,  an  amendment  should  be  made, 
to  give  that  power. 

The  plaintiffs,  merchants  in  London,  were  the  owners  of  two  parcels 
of  sheep's  wool,  and  two  parcels  of  mohair  of  goats'  wool.  All  four 
parcels  were  received  for  the  plaintiffs  by  one  Slee,  a  warehouseman 
and  sheep's  wool-broker  at  Liverpool,  and  were  by  him  deposited  in 
his  warehouse  at  Liverpool.  From  thence  they  were  taken  on  the 
13th  of  April,   1872,   by  the  defendants,  who  claimed  right  so  to  do 

1    Ki  ITINO  and   MOKTAOl  E  Smith,  J  J.,  delivered  brief  concurring  opinions. 


SECT.  IV.]  COLE   V.    NORTH  WESTERN1    BANK.  5-1  (J 

under  a  contract  made  by  Slee  on  the  5th  of  April,  1872,  by  which 
be  pledged,  or  agreed  to  pledge,  the  whole  lour  parcels  to  the  defendants 
for  £7,000  then  advanced  to  him  by  the  defendants  on  that  security. 

At  the  time  when  this  contract  was  made,  the  two  parcels  of  goats' 
wool  and  one  of  the  parcels  of  sheep's  wool  were  in  Slee's  warehouse. 
The  other  parcel  of  sheep's  wool  was  still  on  board  the  vessel  (the 
"Grecian")  by  which  it  had  come:  but  Slee  held  the  bill  of  lading, 
which  had  been  sent  to  him  by  the  plaintiffs  to  enable  him  to  land  and 
deposit  the  wool  in  his  warehouse  ;  and  (after  the  making  of  the  con- 
tract of  the  5th  of  April)  on  the  9th  of  April  this  sheep's  wool  also 
was  actually  deposited   in  the   warehouse. 

Slee  absconded  with  the  £7,000  thus  obtained,  and  then  the  defend- 
ants, having  notice  that  Slee  had  committed  this  act  of  bankruptcy, 
but  not  having  any  further  notice  that  he  had  not  been  so  intrusted 
with  the  possession  of  the  goods  as  to  be  able  to  pledge  them,  took 
forcible  possession  of  the  whole  goods  against  the;  will  of  Slee's  clerks. 

The  great  question  was  whether  Slee  was,  under  the  circumstances,  so 
intrusted  with  the  possession  of  the  goods  as  to  have  been  able  on  the 
5th  of  April  (supposing  he  had  then  delivered  actual  possession  to  the 
defendants)  to  make  a  pledge  to  the  defendants  good  against  the  plain- 
tiffs. As  to  this,  there  is  a  distinction  between  the  sheep's  wool  and 
the  goats'  wool  ;  for  Slee  never  sold  goats'  wool  at  all,  and  was  clearly 
intrusted  with  the  goats'  wool  as  warehouseman,  and  as  warehouseman 
only.     But  he  did  sell  sheep's  wool  as  a  broker. 

A  broker,  who,  without  being  intrusted  with  the  goods,  makes  a  con- 
tract between  two  principals,  has  no  opportunity  .to  pledge  the  goods 
at  all.  But  we  know  (though  it  is  not  stated  in  the  case)  that  brokers 
often  are  capitalists  who  make  advances  on  the  goods  and  have  them 
transferred  into  their  names  as  a  security  for  such  advances.  And  some- 
times, especially  where  the  principal  is  resident  at  a  distance,  the  goods 
are  transferred  into  the  broker's  name  for  the  purpose  of  facilitating 
a  sale  by  him,  although  there  has  been  no  advance  made  by  him  upon 
them.     The  agent  thus  intrusted  is  something  more  than  a  mere  bicker. 

A  pledge  by  a  person  thus  intrusted  with  the  possession  of  goods  as 
broker  would  no  doubt  be  good.  And  if,  as  is  sometimes  the  case,  the 
broker  had  warehouses  of  his  own  in  which  the  goods  so  intrusted  to 
him  were  stored,  they  would  be  equally  in  his  possession  as  broker  as  if 
they  had  been  stored  in  the  warehouse  of  another  in  his  name.  But  we 
are  all  agreed  that  we  must  understand  from  the  statement  in  the  case 
that  Slee  had  not  warehouses  as  merely  ancillary  to  his  business  as  broker, 
but  that  he  carried  on  two  distinct  and  independent  businesses,  the  one 
being  that  of  a  warehouseman,  the  other  thai  of  a  sheep's  wool-broker: 
and  this  raises  the  first  question  of  fact.  viz.  whether  the  goods  in  ques- 
tion were  intrusted  to  him  merely  as  warehouseman,  or  also  as  broker. 

It  is  stated  in  the  case  that  the  bills  of  lading  of  the  plaintiffs'  wool 
(whether  goats'  wool  or  sheep's  wool)  were  in  the  ordinary  course  of 
business  sent  down  to  Slee  for  the  purpose  of  his  receiving  the  wool 


550  COLE   V.    NORTHWESTERN    BANK.  [CHAP.  IV. 

from  the  ship  and  warehousing  it.  Slee,  after  the  wool  had  been  so 
received  and  warehoused,  sent  up  a  report  and  valuation  thereon,  and 
then  awaited  the  plaintiffs'  further  instructions  as  to  disposal.  Two 
sample  letters  are  set  out  in  the  appendix,  one  relating  to  goats'  wool, 
the  other  to  sheep's  wool ;  and  they  bear  out  the  statement  in  the  case 
that  both  kinds  of  wool  were  treated  in  exactly  the  same  way. 

But  there  is  the  further  statement  that,  ki  as  to  the  sheep's  wool,  Slee 
had  no  general  authority  from  the  plaintiffs  to  sell,  but  always  awaited 
instructions,  and  acted  only  under  specific  authority  given  to  him  from 
time  to  time  in  each  case  ;  and  when  such  last-mentioned  sales  were 
effected,  Slee  received  the  proceeds. 

We  draw  the  inference  of  fact  that,  as  between  the  plaintiffs  and  Slee, 
Slee  was  intrusted  with  the  sheep's  wool  and  goats'  wool  alike,  solely 
for  the  purpose  of  warehousing  them.  But  as  it  appears  that  he  was 
sometimes  authorized  by  the  plaintiffs  to  sell  and  receive  payment  for 
sheep's  wool  deposited  in  his  warehouse,  the  question  arises  whether 
he  could  make  to  the  defendants  a  good  pledge  of  any  wool  (either 
goats'  wool  and  sheep's  wool,  or  of  sheep's  wool  only,  or  of  neither),  de- 
posited by  the  plaintiffs  in  his  warehouse,  though  not  intended  to  be  sold. 
The  Court  of  Common  Pleas  decided  that  the  pledge  (even  suppos- 
ing it  to  have  been  executed  by  delivery  on  the  5th  of  April)  would  not 
have  been  good  either  as  to  the  sheep's  wool  or  the  goats'  wool :  and 
we  are  of  opinion  that  they  were  right,  and  that  their  judgment  should 
be  affirmed. 

This  renders  it  unnecessary  for  us  to  express  any  opinion  on  two  sub- 
sidiary points  raised  by  Mr.  Herschell,  —  first,  that  the  taking  forcible 
and  (as  he  argued)  wrongful  possession  on  the  13th  of  April  could  not 
better  the  defendants'  position,  who  therefore  remained  in  the  position 
(provided  for  in  the  4th  section  of  5  &  6  Vict.  c.  39)  of  a  person  who 
has  made  a  contract  for  a  pledge  with  an  agent,  but  has  not  actually 
received  the  goods  contracted  to  be  pledged,  —  and,  secondly,  as  to 
the  parcel  per  "  Grecian,"  that  Slee  on  the  5th  of  April,  when  the  con- 
tract was  made,  was  not  in  possession  of  these  wools,  though  he  had 
the  bill  of  lading  under  which  he  subsequently  obtained  them.  We 
merely  mention  these  two  points,  to  show  that  we  have  not  overlooked 
them  ;  but  express  no  opinion  on  either. 

The  decision  of  this  case  depends,  in  our  opinion,  entirely  on  the 
true  construction  of  the  last  of  the  Factors  Acts,  5  &  6  Vict.  c.  39,  which 
was  passed  to  amend  and  extend  the  earlier  Factors  Acts,  4  Geo.  4,  c.  83, 
and  6  Geo.  4,  c.  94.  "We  think,  however,  that,  in  order  to  understand 
."»  c^  G  Vict.  c.  39,  it  is  necessary  to  consider  wdiat  was  the  common  law 
before  any  legislation  on  the  subject,  what  were  the  provisions  of  the 
two  earlier  acts,  and  what  had  been  the  judicial  decisions  upon  them. 

The  amount  at  stake  in  the  present  action  is  large,  and  renders  our 
decision  of  importance  to  the  parties.  But  the  general  importance  of 
the  question  as  regards  the  commerce  of  this  country  is  even  greater. 
It  was  for  this  reason,  and  not  from  any  doubt  as  to  what  the  decision 


SECT.  IV.]  COLE   V.   NORTHWESTERN   BANK.  551 

should  be,  that  the  court  took  time  to  consider  their  judgment.     And 
for  the  same  reason  we  now  proceed  to  give  our  reasons  at  some  length. 

The  1th  edit,  of  Abbott  on  Shipping  was  published  before  the  passing 
of  either  of  the  Factors  Acts.  The  5th  edit,  the  last  published  in  the 
lifetime  of  the  author,  was  published  before  the  passing  of  5  tv  fi  Vict, 
c.  39  ;  but  it  contains  a  valuable  abstraet  of  the  two  earlier  Factors 
Acts,  indieating  what  Lord  Tenterden  thought  was  their  effect.  The 
passage  containing  his  opinion  has  been  suppressed  in  the  sixth  and 
subsequent  editions  of  Abbott  on  Shipping.  The  5th  edition,  in  which 
alone  it  is  to  be  found,  is  now  out  of  print:  it  is  worth  while,  therefore, 
to  quote  the  whole  passage  at  length  ;  it  will  be  found  in  part  3,  ch.  9, 
s.  1G,  p.  381  :  — 

"  Lastly  we  are  to  consider  by  what  acts  the  right  of  the  consignor 
may  be  taken  away  before  the  end  of  the  transit.  Since  the  publica- 
tion of  the  former  editions  of  this  book,  this  subject  has  received  the 
attention  of  the  Legislature,  and  Acts  of  Parliament  have  passed  by 
which  the  matter  will  in  many  cases  be  governed  in  future.  The  legis- 
lative enactments  are  in  part  confirmatory  of  the  common  law,  and  in 
part  important  alterations  of  it.  The  following  abstract  of  them  will, 
it  is  hoped,  be  found  correct  and  useful. 

"  The  person  in  whose  name  goods  are  shipped  is  to  be  deemed  the 
true  owner  thereof,  so  far  as  to  entitle  the  consignee  to  a  lien  thereon 
in  respect  of  any  money  or  negotiable  security  advanced  by  him  to 
such  person,  or  received  by  such  person  to  his  use,  if  he  has  not  notice 
by  the  bill  of  lading  or  otherwise,  at  or  before  the  advance  or  receipt, 
that  such  person  is  not  the  actual  and  bona  fide  owner  of  the  goods; 
and  such  person  shall  be  taken  for  the  purposes  of  the  act  to  have  been 
intrusted  with  the  goods  for  the  purpose  of  consignment  or  of  sale, 
unless  the  contrary  be  made  to  appear.  So,  also,  a  person  intrusted 
with  and  in  possession  of  a  bill  of  lading,  or  of  any  of  the  warrants, 
certificates,  or  orders  mentioned  in  the  act,  is  to  be  deemed  the  true 
owner  of  the  goods  described  therein,  so  far  as  to  give  validity  to 
any  contract  or  agreement  made  by  him  for  the  sale  or  disposition  of 
the  goods  or  the  deposit  or  pledge  thereof,  if  the  buyer,  disponer,  or 
pawnee  has  not  notice,  by  the  document  or  otherwise,  that  such  person 
is  not  the  actual  and  bona  fide  owner  of  the  goods.  But,  if  such  person 
deposit  or  pledge  the  goods  as  security  for  a  pre-existing  debt  or 
demand,  he  who  so  takes  the  deposit  or  pledge  without  notice  shall 
acquire  such  right,  title,  or  interest,  and  no  further  or  other,  than  was 
possessed  by  the  person  making  the  deposit  or  pledge.  And.  further. 
any  person  may  contract  for  the  purchase  of  goods  with  any  agent 
intrusted  with  the  goods,  or  to  whom  they  may  be  consigned,  and 
receive  and  pay  for  the  same  to  the  agent,  notwithstanding  he  shall  have 
notice  that  the  party  with  whom  he  contracts  is  an  agent,  if  such  con- 
tract and  payment  be  made  in  the  ordinary  ami  usual  course  of  business, 
and  he  lias  not  at  the  time  of  the  contract  or  payment  notice  that  the 
agent  is  not  authorized  to  sell  or  to  receive  the  price.     Also,  any  person 


552  COLE   V.   NORTHWESTERN   BANK.  [CHAP.  IV. 

may  accept  any  goods,  or  any  such  document  as  aforesaid,  on  deposit 
or  pledge  from  any  factor  or  agent,  notwithstanding  he  shall  have 
notice  that  the  part}'  is  a  factor  or  agent ;  but,  in  such  case,  he  shall 
acquire  such  right,  title,  or  interest,  and  no  further  or  other  than  was  pos- 
sessed by  the  factor  or  agent  at  the  time  of  the  deposit  or  pledge. 

"  It  is,  however,  provided  that  the  act  shall  not  prevent  the  true 
owner  of  the  goods  from  recovering  them  from  his  factor  or  agent 
before  a  sale,  deposit,  or  pledge,  or  from  the  assignees  of  such  factor 
or  agent,  in  the  event  of  his  bankruptcy  ;  nor  from  the  buyer  the  price 
of  the  goods,  subject  to  any  right  of  set-off  on  the  part  of  the  buyer 
against  the  factor  or  agent ;  nor  from  recovering  the  goods  deposited 
or  pledged,  upon  repayment  of  the  money  or  restoration  of  the  negoti- 
able instrument  advanced  on  the  security  thereof  to  the  factor  or 
agent;  and  upon  payment  of  such  further  money  or  restoration  of  such 
other  negotiable  instrument  (if  any)  as  may  have  been  advanced  by  the 
factor  or  agent  to  the  owner,  or  on  payment  of  money  equal  to  the 
amount  of  such  instrument;  nor  from  recovering  from  any  person  any 
balance  remaining  in  his  hands  as  the  produce  of  a  sale  of  the  goods 
after  deducting  the  money  or  negotiable  instrument  advanced  on  the 
security  thereof.  And,  in  the  case  of  the  bankruptcy  of  the  factor  or 
agent,  the  owner  of  the  goods  so  pledged  and  redeemed  shall  be  held 
to  have  discharged  pro  tanto  his  debt  to  the  estate  of  the  bankrupt. 

"I  am  not  aware  that  airy  case  has  hitherto  been  decided  upon  the 
construction  of  these  enactments.  The}'  appear,  as  I  have  before  ob- 
served, to  be  partly  a  confirmation  and  partly  an  alteration  of  the  law  ; 
and,  as  a  knowledge  of  the  former  state  of  the  law  is  often  very  useful, 
even  after  an  alteration  has  been  made,  it  has  been  thought  advisable 
to  retain  the  contents  of  the  last  edition  on  this  subject,  with  a  reference 
to  some  subsequent  decisions." 

We  agree  witli  Lord  Tenterden  in  thinking  that  these  acts  were 
partly  a  confirmation  and  partly  an  alteration  of  the  law,  and  that,  to 
understand  them,  it  is  necessary  to  see  what  the  law  was  before  they 
were  passed. 

At  common  law,  a  person  in  possession  of  goods  could  not  confer  on 
another,  either  by  sale  or  by  pledge,  an}*  better  title  to  the  goods  than 
he  himself  had.  To  this  general  rule?  there  was  an  exception  of  sales 
in  market  overt,  and  an  apparent  exception  where  the  person  in  pos- 
session had  a  title  defeasible  on  account  of  fraud.  But  the  general  rule 
was  that,  to  make  either  a  sale  or  a  pledge  valid  against  the  owner  of 
the  goods  sold  or  pledged,  it  must  be  shown  that  the  seller  or  pledgor 
hail  authority  from  the  owner  to  sell  or  pledge,  as  the  case  might  be. 
If  the  owner  of  the  goods  had  so  acted  as  to  clothe  the  seller  or  pledgor 
witli  apparent  authority  to  sell  or  pledge,  he  was  at  common  law  pre- 
cluded, as  against  those  who  were  induced  bonajide  to  act  on  the  faith 
of  that  apparent  authority,  from  denying  that  he  had  given  such  an 
authority,  and  the  result  as  to  them  was  the  same  as  if  he  had  really 
given  it.  But  then;  was  no  such  preclusion  as  against  those  who  had 
notice  that  the  real  authority  was  limited. 


SECT.    IV.]  COLE   V.    NORTHWESTERN    BANK.  553 

And  the  possession  of  bills  of  lading  or  other  documents  of  title  to 
goods  did  not  at  common  law  confer  on  the  holder  of  them  any  greater 
power  than  the  possession  of  the  goods  themselves.  The  transfer  of  a 
bill  of  lading  for  goods  in  transitu  had  the  same  effect  in  defeating  the 
unpaid  vendor's  right  to  stop  in  transitu  that  an  actual  delivery  of  the 
goods  themselves  under  the  same  circumstances  would  have  had.  But 
the  transfer  of  the  document  of  title  by  means  of  which  actual  posses- 
sion of  the  goods  could  be  obtained,  had  no  greater  effect  at  common 
law  than  the  transfer  of  the  actual  possession. 

Lord  Tenterden  thus  states  the  law:  "  If  the  goods  were  sent  to  the 
consignee  as  a  factor,  it  was  thought  that  his  possession  of  the  bill  of 
lading  could  not  in  reason  give  him  any  greater  power  over  the  goods 
before  their  arrival  than  his  actual  possession  of  them  afterwards  would 
do:  and  as,  in  the  case  of  actual  possession,  although  a  factor  might 
sell  the  goods  and  thereby  bind  his  principal  because  his  employment 
and  authority  are  to  sell,  but  could  not  pawn  or  pledge  them  because 
he  is  not  by  his  employment  authorized  so  to  do,  so,  before  the  arrival 
of  the  goods,  it  was  held  that  he  could  not  divest  the  consignor's  right 
to  stop  them  by  indorsing  or  delivering  over  the  bill  of  lading  as  a 
pledge/' 

The  proposition  that  a  factor  is  not  by  his  employment  authorized  to 
pawn  or  pledge  goods  intrusted  to  him,  was  for  many  years  much  con- 
troverted in  point  of  fact.  But  it  having  once  been  decided  as  a  matter 
of  law  that  he  was  not  so  authorized,  the  courts  adhered  to  what  had 
been  decided. 

The  law  in  this  respect  has  been  altered  by  5  &  6  Vict.  c.  39,  as  will  be 
shown  hereafter ;  but  the  Legislature  did  not  alter  it  in  the  first  Factors 
Act,  4  Geo.  4,  c.  83,  except  in  the  case  of  consignments  by  sea.  In 
M'Combie  v.  Davies,  7  East,  o,  the  decision  went  so  far  as  to  hold  that 
a  pledge  by  a  factor  was  so  totally  tortious  as  not  even  to  transfer  the 
lien  which  the  pledgor  himself  had.  This  decision  is  made  no  longer 
law  by  the  earlier  Factors  Acts. 

The  general  principle  of  law,  that,  where  the  true  owner  has  clothed 
any  one  with  apparent  authority  to  act  as  his  agent,  he  is  bound  to 
those  who  deal  with  the  apparent  agent  on  the  assumption  that  he  really 
is  an  agent  witli  that  authority,  to  the  same  extent  as  if  the  apparent 
authority  was  real,  is  illustrated  by  two  decisions  which  probably  were 
present  to  the  minds  of  those  who  framed  G  Geo.  4,  c.  94.  In  Wilkin- 
son v.  King,  2  Camp.  335,  it  appeared  that  one  Ellit  was  a  wharfinger, 
and  was  accustomed  to  sell  lead  from  his  wharf.  It  is  not  distinctly 
stated  in  the  report  whether  these  sales  were  solely  of  his  own  lead  or 
also  of  had  sent  to  him  by  others  to  sell  as  their  factor;  but,  as  it  is 
expressly  mentioned  that  he  had  never  sold  any  lead  for  the  plaintiff, 
it  appears  probable  that  he  sold  for  others  as  factor.  The  defendant 
bona  fide  bought  from  Edit  lead  belonging  to  the  plaintiff  which  had 
been  scut  to  him  as  wharfinger  only.  Lord  EHenborough  ruled  that 
"Ellit  had   no  color  of  authority  to  sell  the  lead,  and  no  one  could 


554  COLE   V.    NORTHWESTERN    BANK.  [CHAP.  IV. 

derive  title  from  such  a  tortious  conversion."  And  several  other  cases 
depending  on  similar  sales  by  Ellit  were  decided  in  1809  and  1810  in  the 
same  way-  In  none  of  these  does  there  appear  to  have  been  any  attempt 
to  review  in  banc  the  decisions  at  nisi  prius.  In  Pickering  v.  Busk,  15 
East,  38,  in  1812,  the  plaintiff,  the  true  owner,  had  purchased  the  goods 
through  Swallow,  who  pursued  the  public  business  of  broker  and  an 
agent  for  sale,  and  the  goods  were  at  the  plaintiff's  desire  transferred 
into  the  name  of  Swallow.  It  was  held  that  this  proved  that  Swallow 
had  an  implied  authority  to  sell,  and  consequently  that  the  defendants 
wire  justified  in  buying  of  Swallow  and  paying  him  the  price.  Lord 
Ellenborough  goes  somewhat  further.  He  says  :  "  If  a  person  authorize 
another  to  assume  the  apparent  right  of  disposing  of  property  in  the 
ordinary  course  of  trade,  it  must  be  presumed  that  the  apparent  author- 
ity is  the  real  authority.  I  cannot  subscribe  to  the  doctrine  that  a 
broker's  engagements  are  necessarily  and  in  all  cases  limited  to  his 
actual  authority,  the  reality  of  which  is  afterwards  to  be  tried  by  the 
fact.  It  is  clear  that  he  may  bind  his  principal  within  the  limits  of  the 
authority  with  which  he  has  been  apparently  clothed  by  his  principals 
in  respect  of  the  subject-matter  ;  and  there  would  be  no  safety  in  mer- 
cantile transactions  if  he  could  not."  It  is  to  be  observed,  however, 
that  the  other  judges  base  their  judgment  on  the  ground  that  the  cir- 
cumstances proved  in  fact  an  implied  authority  to  Swallow  to  sell ;  and 
that  Lord  Ellenborough  limits  his  more  extensive  doctrine  to  the  case 
of  a  person  "  authorizing  another  to  assume  the  apparent  right  of  dis- 
posing of  property  in  the  ordinary  course  of  trade,"  or,  in  other  words, 
intrusting  it  to  an  agent  whose  business  it  is  to  sell :  and,  on  Wilkinson 
v.  King  being  cited  on  the  argument,  he  says :  "  That  was  the  case  of 
a  wharfinger  whose  proper  business  it  was  not  to  sell,  and  to  whom 
the  goods  were  sent  for  the  mere  purpose  of  custod}' :  "  from  whence 
it  may  be  inferred  that  he  limited  his  general  doctrine  to  cases  in  which, 
as  in  that  before  him,  the  goods  were  intrusted  to  an  agent  whose  ordi- 
nary business  it  was  to  sell,  in  the  course  of  his  business  as  such  agent, 
and  because  he  was  such  agent.  And  Le  Blanc,  J.,  expressly  says: 
"This  is  distinguishable  from  all  the  cases  where  goods  are  left  in  the 
custody  of  persons  whose  proper  business  it  is  not  to  sell." 

Perhaps,  however,  the  case  of  Dyer  v.  Pearson,  3  B.  &  C.  38,  which 
was  decided  in  1824,  the  3-ear  before  the  passing  of  6  Geo.  4,  c.  94,  is 
that  which  throws  most  light  on  the  intention  of  the  legislature.  That 
was  trover  for  wool.  Smith,  who  had  sold  the  wool  to  the  defendant, 
had  been  intrusted  by  the  plaintiffs  with  the  bill  of  lading,  for  the  pur- 
pose of  warehousing  the  goods,  which  he  did  in  his  own  name.  There 
was  no  distinct  evidence  that  Smith  was  in  the  habit  of  buying  or 
selling  wool  for  others;  and  this  was  relied  on  in  the  argument  as 
distinguishing  the  case  from  Pickering  v.  Busk,  supra,  which  was 
nol  questioned;  and  it  was  not  contended  that  he  in  fact  had  any 
authority  from  the  plaintiffs  to  sell.  Abbott,  C.  J.,  had  at  the  trial 
left  the  question  to  the  jury  whether  the  defendant  had  purchased  the 


SECT.  IV.]  COLE   V.    NORTHWESTERN    BANK.  555 

wool  under  circumstances  which  would  have  induced  a  cautions  man 
to  believe  that  Smith  had  authority  to  sell.  The  jury  found  for  the 
defendant.  A  new  trial  was  granted  ;  and  Abbott,  C.  J.,  delivering  the 
judgment  of  the  court,  says  :  "The  general  rule  of  the  law  of  England 
is,  that  a  man  who  has  no  authority  to  sell  cannot  by  making  a  sale 
transfer  the  property  to  another.  There  is  one  exception  to  that  rule, 
viz.  the  case  of  sides  in  market  overt.  Now,  this  being  the  rule  of  law, 
1  ought  either  to  have  told  the  jury,  that  even  if  there  was  an  unsuspi- 
cious purchase  by  the  defendant,  yet,  as  Smith  had  no  authority  to  sell, 
they  should  find  their  verdict  for  the  plaintiffs,  or  I  should  have  left  it 
to  the  jury  to  say  whether  the  plaintiffs  had  b}'  their  own  conduct 
enabled  Smith  to  hold  himself  forth  to  the  world  as  having,  not  the 
possession  only,  but  the  property  ;  for,  if  the  real  owner  of  goods  suffer 
another  to  have  possession  of  his  propert}'  and  of  those  documents 
which  are  the  indicia  of  property,  then  perhaps  a  sale  by  such  a  person 
would  bind  the  true  owner.  That  would  be  the  most  favorable  way  of 
putting  the  case  for  the  defendant ;  and  that  question,  if  it  arises  upon 
the  evidence,  ought  to  have  been  submitted  to  the  jury."  The  legis- 
lature seem  to  have  intended  to  declare  the  law  in  future  on  the  two 
points  on  which  in  that  judgment  doubt  was  expressed,  and  which  I 
have  indicated  by  putting  them  in  italics. 

"When  we  look  at  the  language  used  in  the  two  earlier  Factors  Acts 
with  reference  to  this  state  of  the  law,  it  seems  to  us  clear  that  the 
legislature  intended  by  4  Geo.  4,  c.  83,  to  alter  the  law  in  favor  of  con- 
signees, so  far  as  to  enact  that,  where  goods  were  shipped  in  the  names 
of  persons  "  intrusted  for  the  purposes  of  sale"  with  goods,  the  con- 
signees might  advance  money  on  the  security  of  the  goods  as  if  the 
consignors  were  the  true  owners,  unless  they  had  notice  to  the  contrary  ; 
with  a  proviso  (which  may  have  some  bearing  on  the  construction  of 
s.  4  of  5  &  6  Vict.  c.  39)  that  the  persons  in  whose  names  such  goods 
are  so  shipped  shall  be  taken  to  have  been  intrusted  therewith,  unless 
the  contrary  'w  appear  or  be  shown  in  evidence  by  any  person  disputing 
the  fact."  And  by  the  2d  section  of  that  act,  the  legislature  repealed 
M'Combie  v.  Davies,  supra,  in  so  far  as  it  was  applicable  to  those 
taking  pledges  from  consignees  ;  but  that  act  did  not  alter  the  estab- 
lished law  as  to  pledging,  with  regard  to  others  than  consignors  and 
consignees.  The  6  Geo.  4,  c.  94,  s.  1,  re-enacted  the  1st  section  of  4 
Geo.  4,  c.  83. 

We  are  not  in  the  present  case  concerned  with  the  rights  of  con- 
signees, except  in  so  far  as  the  provisions  respecting  them  throw 
light  on  the  other  sections  of  the  Acts.  The  2d  section  of  6  Geo.  4. 
c.  94.  made  an  important  alteration  in  the  law.  as  by  it  the  possession 
of  bills  of  lading  or  other  documents  of  title  gave  a  power  of  selling 
or  pledging  the  goods  to  those  dealing  bo)t<t  fid\  with  the  possessor, 
beyond  any  which  either  by  common  law  or  by  any  provision  of  that 
statute  the  possession  of  the  goods  themselves  gave.  This  solved  one 
of  the  doubts  expressed  in  Dyer  v.  Pearson,  supra,  by  enacting  that 


556  COLE   V.    NORTHWESTERN    BANK.  [CHAP.  IV. 

the  possession  of  the  documents  of  title  might  enable  the  person  so 
possessed  to  deal  with  others  as  if  he  were  the  owner  of  the  goods.  It 
was  confined,  however,  to  the  possession  by  ''persons  intrusted  with" 
these  documents  of  title  ;  on  which  words  a  construction  was  put  by 
the  courts  in  the  two  cases  of  Phillips  v.  Huth,  6  M.  &  W.  572,  and 
Hatfield  v.  Phillips,  9  M.  &  W.  G47  ;  12  CI.  &  F.  343. 

The  5  &  6  Vict.  c.  39,  in  consequence  of  these  decisions,  altered 
the  law  as  to  what  should  constitute  intrusting.  The  2d  section 
of  G  Geo.  4,  c.  94,  also  contained  a  proviso  that  the  purchaser  or 
pledgee  had  not  notice,  by  the  documents  or  otherwise,  that  the  seller 
or  pledgor  was  not  "the  actual  and  bona  fide"  owner  of  the  goods  sold 
or  pledged, —  a  proviso  which,  especially  after  the  decision  of  Fletcher 
v.  Heath,  7  B.  &  C.  517,  rendered  it  unsafe  to  make  advances  on 
goods  or  documents  to  persons  known  to  have  possession  thereof  as 
agents  only.  This  also  has  been  altered  by  5  &  6  Vict.  c.  39.  But,  in 
the  4th  section  of  6  Geo.  4,  c.  94,  the  language  used  by  the  legis- 
lature is  completely  changed.  It  does  not  in  this  section  give  any 
power  to  pledge  at  all ;  nor  does  it  use  the  language  of  the  2d  section, 
and  authorize  "  any  person  intrusted  with  the  possession  of  the  goods" 
to  sell  them  to  any  one  not  having  notice  that  this  person  is  not  the 
true  owner ;  but  it  enacts  that  it  shall  be  lawful  to  contract  with  "  any 
agent"  intrusted  with  any  goods,  or  to  whom  they  may  be  consigned, 
for  the  purchase  of  such  goods,  and  to  pay  for  the  same  to  "such 
agent ;  "  and  such  sale  and  payment  is  to  be  good,  notwithstanding  the 
purchaser  has  notice  that  the  party  selling  or  receiving  payment  is  only 
an  agent;  provided  such  contract  or  payment  is  made  in  the  usual 
course  of  business,  —  a  proviso  which  by  itself  alone  shows  that  the 
legislature  meant  by  the  word  ".agent"  only  such  agents  as  in  the 
usual  course  of  business  sell  goods  for  their  principals  and  receive  pay- 
ments, such  as  factors,  brokers,  &c,  and  did  not  mean  to  include 
bailees,  warehousemen,  carriers,  and  others  who  may  in  one  sense  no 
doubt  be  called  agents,  but  who  do  not  sell  or  receive  payment  for 
goods  intrusted  to  them  by  those  employing  them.  It  therefore  solves 
the  second  doubt  in  Dyer  v.  Pearson,  supra,  by  declaring  that,  if  the 
evidence  should  be  such  as  to  show  that  the  person  in  possession  of  the 
goods  was  intrusted  as  "  an  agent,"  a  sale  by  him  should  bind  the  true 
owner. 

Then  follows  a  further  proviso,  that  the  person  dealing  with  the  agent 
lias  not  notice  that  the  agent  is  not  authorized  to  sell  or  receive  pay- 
ment. This  latter  proviso  shows  that  the  framer  of  the  act  remembered 
that  a  factor  might,  as  between  him  and  his  principal,  be  restrained 
from  selling  except  on  particular  terms,  or  possibly  forbidden  to  sell  at 
all,  and  yet  that  the  sale;  on  the  usual  terms,  though  in  contravention  of* 
those  secret  instructions,  would  be  good  as  regards  those  who  had  not 
notice  of  this  restriction,  but  bad  as  regards  those  who  had. 

It  seems  to  us.  therefore,  that  the  legislature  by  this  section  intended 
to  confirm    (to  use  Lord  Tenterden's  expression)  the  common  law  as 


SECT.  IV. J  COLE   v.    NORTHWESTERN    BANK.  557 

laid  down  in  Pickering  v.  Busk,  supra,  but  did  not  mean  to  extend  it 
to  all  cases  in  which  any  person  is  intrusted  with  the  custody  of  goods, 
though  that  person  may  in  one  sense  be  an  agent  for  the  intnister. 
And  it  seems  to  ns  that,  on  the  construction  of  the  act,  and  without 
reference  to  authority,  it  must  he  intended  to  apply  only  to  cases  in 
which  the  intrusting  is  in  the  course  of  that  kind  of  agency,  so  as  to 
create  the  relation  of  principal  and  agent  between  the  intnister  and  the 
intrusted.  In  effect,  that  the  decision  in  Wilkinson  v.  King,  supra,  was 
not  overruled  or  shaken  in  Pickering  v.  Busk,  supra,  and  was  not  in- 
tended to  be  affected  by  the  legislature.  For  example,  if  a  furnished 
house  be  let  to  one  who  carries  on  the  business  of  an  auctioneer,  he  is 
intrusted  as  tenant  with  the  furniture,  being  in  fact  an  auctioneer:  but 
it  never  was  the  common  law,  and  could  not  he  intended  to  he  enacted, 
that  if  he  carried  the  furniture  to  his  auction  room  and  there  sold  it,  he 
could  confer  any  better  title  on  the  purchaser  than  if  he  had  as  auc- 
tioneer acted  for  some  other  tenant  who  committed  a  similar  larceny, 
as  a  fraudulent  bailee :  nor,  to  come  nearer  to  the  present  case,  that  a 
warehouseman  or  wharfinger  who  as  such  is  intrusted  with  the  custody 
of  goods,  if  he  happens  also  to  pursue  the  trade  of  a  factor,  can  give 
a  better  title  by  the  sale  of  the  goods  than  he  could  if  the}-  had  been 
intrusted  to  some  other  warehouseman  who  employed  him  to  sell. 

This  was  the  construction  put  upon  the  act  in  Monk  v.  Whittenbury, 
2  B.  &  Ad.  484,  decided  in  1831  :  and  that  decision  has  never  been 
questioned.  That  decision  was  before  5  &  6  Vict.  c.  39  :  and  the  legis- 
lature might  easih'  have  altered  the  enactments,  if  they  had  been  so 
minded,  so  as  to  avoid  the  effect  of  that  'decision,  as  the}-  did  alter  them 
so  as  to  avoid  the  effect  of  other  decisions. 

The  5  &  6  Vict.  c.  39,  commences  with  a  preamble  ;  and  though,  of 
course,  the  enacting  part  may  either  go  further  than  or  fall  short  of 
effecting  what  is  recited  in  that  preamble  as  being  the  object  of  the 
legislature,  that  preamble  is  of  great  importance.  It  first  recites  that, 
under  6  Geo.  4,  c.  94,  "and  the  present  state  of  the  law,  advances 
cannot  safely  be  made  upon  goods  or  documents  of  title  to  persons 
known  to  have  possession  as  agents  only."  This  points  to  Fletcher  v. 
Heath,  supra,  and  shows  an  intention  to  alter  the  law  as  there  decided. 
It  then  recites  that  "  advances  on  the  securit}'  of  goods  and  merchan- 
dise have  become  an  usual  and  ordinary  course  of  business,  and  it  is 
expedient  and  necessary  that  reasonable  and  safe  facilities  should  be 
afforded  thereto,  and  that  the  same  protection  and  validity  should  be 
extended  to  bona  fide  advances  upon  goods  and  merchandise  as  by  the 
said  recited  act  is  given  to  sales,  and  that  owners  intrusting  agents 
with  the  possession  of  goods  and  merchandise,  or  of  documents  of  title 
thereto,  should  in  all  cases  where  such  owners  by  the  said  recited  act 
or  otherwise  would  be  bound  by  a  contract  or  agreement  of  sale,  be  in 
like  manner  bound  by  any  contract  or  agreement  of  pledge  or  lien  for 
any  advances  bona  fide  made  on  the  security  thereof." 

This  recital  shows  a  plain  intention  to  enact  that  what  had,  ever 


55S  COLE   V.    NORTHWESTERN    BANK.  [CHAP.  IV. 

since  the  case  of  Paterson  v.  Tash,  2  Str.  1178,  been  the  law,  should  no 
longer  be  so  ;  and  that  an  agent  having  power  to  sell  should  be  also 
enabled  to  pledge.  But  there  is  no  indication  of  any  intention  to  give 
a  power  to  pledge  where  there  is  not  power  to  sell ;  nor  to  extend  the 
power  to  sell  beyond  that  which  by  the  common  law  and  6  Geo.  4, 
C.  9  1,  s.  1,  was  given  ;  nor  to  alter  the  construction  put  upon  that  enact- 
ment by  the  decision  in  Monk  v.  Whittenbury,  supra. 

There  is  a  further  recital,  that  the  act  does  not  extend  to  protect 
exchanges  of  securities  bona  fide  made.  This  refers  to  Taylor  v.  Kymer, 
3  15.  &  Ad.  320,  and  perhaps  Bonzi  v.  Stewart,  4  M.  &  G.  295,  though 
that  latter  case  (after  very  protracted  litigation)  was  not  decided  till  a 
few  weeks  before  5  &  6  Vict.  c.  39  received  the  Royal  assent,  and  this 
recital  shows  an  intention  to  alter  the  law  as  there  decided. 

There  is  no  express  recital  pointing  to  the  decision  in  Phillips  v. 
lluth.  supra,  and  the  case  of  Hatfield  v.  Phillips,  supra,  which  had  then 
been  decided  in  the  Exchequer  Chamber  and  was  still  pending  in  the 
House  of  Lords  ;  but,  from  the  enactment  in  the  4th  section,  it  is  plain 
that  these  cases  were  in  contemplation,  and  that  it  was  intended  to  alter 
the  law  as  laid  down  in  those  cases. 

The  legislature  then  proceed  in  the  first  section  to  enact  that  "  any 
agent"  who  shall  thereafter  be  intrusted  with  the  possession  of  goods, 
or  of  the  documents  of  title  to  goods,  may  pledge  the  same.  The  legis- 
lature, it  is  to  be  observed,  does  not  use  the  words  "  person  intrusted," 
which  are  those  used  in  the  2d  section  of  6  Geo.  4,  c.  94,  but  "  agent 
intrusted,"  being  the  words  used  in  the  4th  section  of  the  act,  on 
which  words  a  judicial  construction  had  been  put  in  Monk  v.  Whitten- 
bury, supra. 

The  2d  section  alters  the  law  as  declared  in  Taylor  v.  Kymer,  supra. 
The  4th  section  alters  the  law  as  laid  down  in  Phillips  v.  Huth,  supra, 
by  enacting  "  that  any  agent  intrusted  as  aforesaid  and  in  possession 
of  any  such  documents  of  title,  whether  derived  immediately  from  the 
owner  of  such  goods  or  obtained  by  reason  of  such  agent's  having  been 
intrusted  with  the  possession  of  the  goods  or  of  any  other  document  of 
title,  shall  be  deemed  and  taken  to  be  intrusted  with  the  possession  of 
the  goods:  .  .  .  and  an  agent  in  possession  as  aforesaid  of  such 
goods  or  documents  shall  be  taken,  for  the  purposes  of  this  act,  to 
have  been  intrusted  therewith  by  the  owner  thereof,  unless  the  contrary 
can  be  shown  in  evidence."  It  is  not  necessary  to  notice  any  other 
parts  of  the  act. 

Mr.  Benjamin  argued  that  the  object  of  the  legislature  was,  to  afford 
facilities  for  safely  making  advances  ;  and  that  this  object  was  only 
imperfectly  carried  out  if  an  advance  made  under  such  circumstances 
as  the  present  was  not  protected.  He  argued  that  the  defendants  had 
no  means  of  knowing  whether  Slee  was  possessed  as  a  warehouseman 
or  as  a  broker.  As  far  as  regards  the  mohair,  this  argument  fails  in 
Pact;  for  a  very  little  inquiry  would  have  made  the  defendants  aware 
that  Slee  was  not  a  broker  for  mohair  at  all.     As  regards  the  sheep's 


SECT.  I  V.J         COLE  V.    NORTHWESTERN  BANK.  559 

wool,  however,  there  is  force  in  the  argument  that  the  defendants 
might,  without  much  negligence,  be  led  by  Slee  to  believe  that  he  was 
intrusted  with  the  sheep's  wool  as  a  broker.  But,  if  the  plaintiffs  knew 
that  the  warehouseman  whom  they  trusted  was  also  a  wool-broker, 
the  defendants  were  aware  that  the  wool-broker  whom  they  trusted  was 
also  a  warehouseman  ;  and  there  seems  no  reason  why  without  inquiry 
they  should  think  he  was  intrusted  in  one  capacity  rather  than  the 
other. 

Probably  5  &  6  Vict.  c.  39,  s.  4,  requires  us  to  treat  him  as  being  so 
intrusted,  unless  the  contrary  is  shown  in  evidence.  But  we  are  all  of 
opinion  that  in  this  case  the  plaintiffs  have  shown  in  evidence  thai  Slee 
was  not  intrusted  as  broker,  but  solely  as  warehouseman.  We  do  not 
think  that  the  legislature  wished  to  give  to  all  sales  and  pledges  in  the 
ordinary  course  of  business  the  effect  which  the  common  law  gives  to 
sales  in  market  overt.  If  such  had  been  their  object,  it  could  easily 
have  been  so  enacted  in  terms  ;  which  certainly  has  not  been  done. 

The  general  rule  of  law  is,  that,  where  a  person  is  deceived  by 
another  into  believing  he  may  safely  deal  with  property,  he  bears  the 
loss,  unless  he  can  show  that  he  was  misled  by  the  act  of  the  true 
owner.  The  legislature  seem  to  us  to  have  wished  to  make  it  the  law, 
that,  where  a  third  person  has  intrusted  goods  or  the  documents  of 
title  to  goods  to  an  agent  who  in  the  course  of  such  agency  sells  or 
pledges  the  goods,  he  should  be  deemed  by  that  act  to  have  misled  any 
one  who  bona  fide  deals  with  the  agent  and  makes  a  purchase  from  or 
an  advance  to  him  without  notice  that  he  was  not  authorized  to  sell  or 
to  procure  the  advance.  And  we  think  that,  if  this  was  the  intention, 
it  is  carried  out  by  the  enactments.  "We  do  not  think  that  it  was 
wished  to  make  the  owner  of  goods  lose  his  property  if  he  trusted  the 
possession  to  a  person  who  in  some  other  capacity  made  sales,  in  case 
that  person  sold  them.  If  such  was  the  wish  of  those  who  framed  the 
act.  we  think  they  have  not  used  language  sufficient  to  express  an  inten- 
tion so  to  enact. 

Hitherto  we  have  been  considering  the  Statute  5  &  6  Vict.  c.  39 
as  if  we  had  to  construe  its  language  for  the  first  time,  without  the 
assistance  of  any  decided  cases.  We  think,  however,  that  every  case 
that  has  been  decided  since  the  passing  of  the  statute  confirms  our 
view.  In  Wood  v.  Rowcliffe,  6  Hare,  183,  Wigram,  V.  C,  held  that  a 
person  intrusted  to  keep  in  her  own  house  furniture  belonging  to  the 
plaintiff,  though  in  one  sense  an  agent  for  the  owner,  was  not  an  agent 
within  the  meaning  of  the  act,  and  consequently  could  not  make  a 
good  pledge.  In  Lamb  r.  Attenborough,  1  B.  &  S.  831  ;  31  L.  J. 
(Q.  B.)  41,  it  was  held  that  a  clerk,  who  as  such  was  possessed  of 
delivery  orders,  was  not  an  agent  intrusted  within  the  meaning  of  the 
act.  and  could  not  make  a  good  pledge.  In  Ileyman  v.  Flewker.  13 
C.  B.  (N.  S.)  519  ;  32  L.  J.  (C.  P.)  132,  Willes.  J.,  in  delivering  judg- 
ment, says  that  what  the  cases  decide  "may  be  stated  thus.  —  that  the 
te*rni  '  agent'  does  not  include  a  mere  servant  or  care-taker,  or  one  who 


560  C0LE    v-    NORTHWESTERN   BANK.  [CHAP.  IV. 

has  possession  of  goods  for  carriage,  safe  custody,  or  otherwise  as  an 
independent  contracting  party;  but  only  persons  whose  employment 
corresponds  to  that  of  some  known  kind  of  commercial  agent  like  that 
class  (factors)  from  which  the  act  has  taken  its  name."  So,  it  has 
been  repeatedly  decided  that  a  sale  or  pledge  of  a  delivery  order  or 
other  document  of  title  (not  being  a  bill  of  lading)  by  the  vendee  does 
not  defeat  the  unpaid  vendor's  rights,  because  the  vendee  is  not  in- 
trusted as  an  agent:  Jenkyns  v.  Usborne,  7  M.  &  G.  678;  M'Ewan  v. 
Smith,  2  H.  L.  C.  309.  And  it  may  be  observed  that,  in  many  of  such 
cases,  in  which  money  has  been  advanced  to  the  buyer  on  the  faith  of 
the  document  of  title,  the  buyer  must  have  been  a  person  who  carried 
on  business  as  a  commission-merchant;  yet  it  never  seems  to  have 
occurred  to  any  one  that  that  fact  made  any  difference.  So,  it  has 
been  repeatedly  held  that,  where  either  the  goods  or  documents  of  title 
are  obtained  from  the  owner  (not  on  a  contract  of  sale  good  till  defeated, 
though  defeasible  on  account  of  fraud,  but  by  some  trick),  a  purchaser 
or  pledgee  acquires  no  title,  for  the  trickster  is  not  "  an  agent  intrusted" 
with  the  possession  :  Kingsford  v.  Merry,  1  II.  &  N.  503  ;  26  L.  J. 
(Ex.)  83  ;  Hardman  v.  Booth,  1  H.  &  0.^803  ;  32  L.  J.  (Ex.)  105. 

Quite  consistently  with  these  latter  decisions  it  was  held,  first  b\-  the 
Exchequer,  on  demurrer,  in  Sheppard  v.  Union  Bank  of  London,  7  H. 
&  X.  661  ;  31  L.  J.  (Ex.)  154,  and  afterwards  by  the  Court  of  Queen's 
Bench,  on  the  facts,  in  Baines  v.  Swainson,  4  B.  &  S.  270  ;  32  L.  J. 
(Q.  B.)  281,  that,  if  the  true  owner  did  in  fact  intrust  the  agent  as  an 
agent,  though  he  was  induced  to  do  so  by  fraud,  a  pledge  by  the  agent 
-would  be  good. 

In  Fuentes  v.  Montis,  Law  Rep.  3  C.  P.  268  ;  Law  Rep.  4  C.  P.  93, 
it  was  decided,  first  by  the  Common  Pleas,  and  afterwards  by  the 
Exchequer  Chamber,  that,  after  the  true  owner  had  demanded  back  his 
goods  from  the  factor,  who  wrongfully  refused  to  give  them  up,  the 
factor  ceased  to  be  lt  intrusted,"  and  a  pledge  subsequently  made  by 
him  was  not  good.  In  delivering  judgment,  Willes,  J.,  speaks  of  Baines 
/•.  Swainson,  supra,  as  going  to  the  extreme  of  the  law,  but  does  not 
express  dissent  from  it. 

Against  this  great  mass  of  authority,  Mr.  Benjamin  could  produce 
nothing  but  some  observations  of  Lord  Westbury  in  Vickers  v.  Hertz, 
Law  Rep.  2  H.  L.  Sc.  113;  but  we  think,  when  those  are  rightly  under- 
stood, they  are  not  in  conflict  with  the  other  decisions.  The  facts  in 
Vickers  v.  Hertz  bear  a  very  close  resemblance  to  those  in  Baines  v. 
Swainson,  supra.  Campbell,  who  was  a  Glasgow  broker,  had  repre- 
sented to  Vickers  that  he  had  made  for  him  a  sale  to  a  principal  of  a 
large  quantity  of  iron.  This,  it  seems,  was  a  falsehood.  Vickers  was 
induced  by  the  falsehood  to  send  a  delivery-order  to  Campbell.  He  did 
not  intrust  him  with  the  deliveiy-order  with  a  view  to  his  making  a 
sale,  for  he  thought  it  was  already  made  ;  but  he  did  intrust  him  in  the 
course  of  his  business  as  agent  with  the  document  of  title,  that  he 
might  as  such  agent  deliver  the  goods.     The  decision  of  the  House  t>f 


SECT.  IV.]  JOHNSON   V.    CREDIT   LYONNAIS   CO.  561 

Lords  was,  that  a  pledge  by  Campbell  was  good  under  the  Factors 
Acts.  Lord  Westbury  seems  to  have  understood  Willes,  .J.,  in  Pdentes 
v.  Montis,  supra,  as  expressing  an  opinion  that  the  act  did  not  embrace 
the  ease  of  any  hut  a  factor  who  was  intrusted  for  the  purpose  of  effect- 
ing a  sale  not  yet  made.  Had  Willes,  .J.,  expressed  such  an  opinion, 
it  would,  no  doubt,  have  been  inconsistent  with  Baines  v.  Swainson, 
supra,  and  been  overruled  by  the  House  of  Lords  in  Vickers  v.  Hertz. 
We  think,  however,  that  he  expressed  no  such  opinion,  and,  conse- 
quently, that  all  the  authorities  are  in  unison  with  the  decision  of  the 
Common  Pleas  in  this  case,  which  we  therefore  affirm. 

Judgment  affirmed} 


JOHNSON  v.   CREDIT  LYONNAIS   COMPANY. 

In  the  Common  Pleas  Division,  Court  of  Appeal,  December  1, 

1877. 

[Reported  in  3  Common  Pleas  Division,  32.] 

Cockburn,  C.  J.  These  cases  come  before  us  on  appeal :  the  first 
from  a  judgment  of  Mr.  Justice  Denman,  after  a  trial  before  himself 
without  a  jury  ;  the  second  from  a  judgment  of  Mr.  Justice  Field,  after 
a  trial  with  a  jury. 

The  facts,  as  well  as  the  questions  of  law  arising  thereupon,  were  the 
same  in  both  actions.     The  facts  were  as  follows :  — 

One  Hoffmann,  a  broker  in  the  tobacco  trade,  but  who  also  dealt  in 
tobacco  as  an  importing  merchant,  having  imported  a  quantity  of  that 
article,  left  it  in  bond  in  the  warehouses  of  the  St.  Katharine's  Dock  Com- 
pany, receiving  the  usual  dock  warrants  ;  and  the  tobacco  was  entered 
in  the  books  of  the  compan}'  as  that  of  Hoffmann. 

This  tobacco  Hoffmann  sold  to  the  plaintiff,  who  carried  on  the  busi- 
ness of  a  tobacco  manufacturer  at  Bolton,  in  Lancashire  ;  but  it  not 
suiting  the  plaintiff's  purpose  to  take  the  tobacco  out  of  bond,  which 
would  have  involved  the  necessity  of  paying  the  duty  before  he  wanted 
the  tobacco,  he  did  what  it  appears  is  frequently,  but  not  always,  done  in 
the  tobacco  trade  by  purchasers,  in  order  to  avoid  the  immediate  pay- 
ment of  the  duty  :  he  left  the  tobacco  in  bond  in  the  name  of  Hoffmann, 
and  left  the  dock  warrants  in  Hoffmann's  hands,  and  took  no  steps  to 
have  any  change  made  in  the  books  of  the  dock  company  as  to  the 
ownership  of  the  goods. 

According  to  the  plaintiff's  statement,  he  was  ignorant  of  the  fact 
that,  when  goods  are  thus  deposited  in  the  warehouses  of  the  dock 
company,  dock  warrants  are  issued  to  the  party  depositing,  which  rep- 
resent the  goods,  and  are  capable  of  being  transferred,  so  as  to  enable 
the  transferee  to  obtain  possession  of  the  goods. 

1  Bramwell,  B.,  delivered  a  brief  concurring  opinion. 
36 


562  JOHNSON   V.    CREDIT    LYONNAIS    CO.  [CHAP.  IV. 

Being  thus  the  ostensible  owner  of  the  tobacco,  Hoffmann  fraudu- 
lently obtained  advances,  on  the  pledge  of  a  portion  of  it,  from  the 
Credit  Lyonnais  Company,  the  defendants  in  one  of  these  actions,  and 
from  Blumenthalj  the  defendant  in  the  other  ;  both  these  parties  acting  in 
perfect  good  faith,  under  the  belief,  induced  by  his  being  in  possession  of 
the  goods  and  of  the  indicia  of  ownership,  that  Hoffmann  was  the  owner 
of  the  tobacco.  Each  of  the  defendants,  on  the  completion  of  the 
transaction,  proceeded  to  do  that  which,  as  it  seems  to  me,  the  plaintiff, 
as  a  matter  of  common  prudence,  should  have  done.  They  caused  the 
entry  of  the  goods  to  be  transferred  from  the  name  of  Hoffmann  to 
their  own  in  the  books  of  the  dock  company,  and  took  fresh  dock-war- 
rants from  the  company,  giving  up  the  former  ones.  The  transactions 
between  Hoffmann  and  the  defendants  were  wholly  unknown  to  the 
plaintiff.  He  further  stated,  as  I  have  already  mentioned,  and  the  state- 
ment does  not  appear  to  have  been  questioned,  that  he  was  unaware  of 
the  practice  of  giving  dock-warrants  as  evidence  of  the  title  of  the  party 
to  whom  they  are  given,  or  of  the  transfer  of  such  warrants  on  alienation 
of  the  property. 

Upon  this  state  of  facts,  Mr.  Justice  Denman,  in  the  action  against 
the  Credit  Lyonnais  Company,  gave  judgment  in  favor  of  the  plaintiff 
for  the  value  of  the  tobacco  pledged  to  the  defendants.  In  the  action 
against  Blumenthal  —  the  defence  on  the  ground  of  estoppel  or  negli: 
gence  having  been  abandoned  by  the  counsel  for  the  defendants—  Mr. 
Justice  Field  put  the  question  to  the  jury  whether  authority,  or  osten- 
sible authority,  had  been  given  by  the  plaintiff  to  Hoffmann  to  deal 
with  the  goods  as  owner,  or  to  pledge  them  as  agent ;  and  on  the  jury 
answering  in  the  negative,  gave  judgment  in  like  manner  for  the 
plaintiff. 

Two  questions  are  raised  by  the  defendants :  the  first,  whether  the 
case  comes  within  the  Factors  Acts;  the  second,  whether  the  conduct 
of  the  plaintiff  in  leaving  the  indicia  of  title  in  Hoffmann's  hands,  and 
thus  enabling  him  to  obtain  money  on  the  security  of  this  tobacco,  has 
been  such  as  to  disentitle  him  to  recover  its  value  from  the  defendants. 

Upon  the  first  question,  namely,  whether  the  case  comes  within  the 
Factors  Acts,  I  entertain  no  doubt.  I  consider  it  to  be  settled  by  the 
authority  of  decided  cases  ;  but  I  may  add  that  if  the  question  had  pre- 
sented itself  now  for  the  first  time,  it  being  clear  to  my  mind  that  Hoff- 
mann was  not  "  intrusted  "  with  these  goods,  or  with  the  documents  of 
title  relating  to  them,  as  agent  to  sell  or  consign,  or  indeed  as  agent  in 
any  sense,  but  stood  only  in  the  position  of  a  paid  vendor  remaining 
ii/possession  of  the  thing  sold  till  it  suited  the  convenience  of  the 
buyer  to  accept  delivery,  I  should  have  had  no  hesitation  in  arriving  at 
the  same  conclusion. 

The  other  question,  namely,  whether  the  plaintiff,  having  not  only  by 
leaving  the  goods  in  the  possession  of  Hoffmann,  but  also  by  leaving 
with  him  the  indicia  of  ownership,  enabled  him  to  dispose  of  the  goods, 
as  apparent  owner,  to  the  defendants,  can  recover  the  value  from  them, 


SECT.  IV.]  JOHNSON   V.    CREDIT   LYONNAIS    CO.  563 

is  a  far  more  difficult  question,  and  one  on  which  I  have  entertained 
considerable  doubt. 

That  Hoffmann  having  thus,  by  being  left  in  undisturbed  possession 
of  the  goods  and  the  indicia  of  ownership,  —  there  having  been  nothing 
to  raise  a  doubt  as  to  the  latter,  or  any  means  open  to  the  defendants 
to  ascertain  the  fact,  —  been  enabled  to  defraud  one  of  two  innocent 
parlies,  when  the  question  arises  as  to  which  of  them  the  loss  should 
fall  upon,  in  reason  and  justice  the  loss  ought  to  fall  on  him  who  might 
have  prevented,  and  as  a  matter  of  common  prudence  ought  to  have 
prevented,  the  possibility  of  the  fraud,  is  what  I  cannot  bring  myself  to 
doubt.  And  1  am  strongly  fortified  in  this  view  by  the  fact  that,  as 
soon  as  the  decisions  here  appealed  from  had  been  made  public,  the 
legislature  by  statute  (40  &  41  Vict.  c.  39)  at  once  proceeded  to  settle 
the  question  in  that  view  in  the  future  b}r  applying  the  protection  given 
by  the  Factors  Acts  to  persons  acquiring  title  from  agents,  to  innocent 
parties  purchasing  or  making  advances  in  such  cases  as  the  present. 
Whether,  prior  to  and  independently  of  such  legislation,  the  law  as  it 
stood  would  have  afforded  protection,  is  a  different  matter.  I  have 
come,  though,  I  confess,  with  reluctance,  to  the  conclusion  that,  as  the 
law  stood,  this  action  could  not  be  resisted,  and  consequently  that  this 
appeal  must  be  dismissed. 

The  case  for  the  plaintiff  rests  on  the  general  proposition  of  law  — 
which  as  a  general  proposition  cannot  be  contested  —  that  the  mere 
possession  of  the  property  of  another,  without  authoritj"  to  deal  with 
the  thing  in  question  otherwise  than  for  the  purpose  of  safe  custody,  as 
was  the  case  here,  will  not,  if  the  person  so  in  possession  takes  upon 
himself  to  sell  or  pledge  to  a  third  part}-,  divest  the  owner  of  his  rights 
as  against  the  third  party,  however  innocent  in  the  transaction  the  latter 
party  may  have  been. 

The  defendants,  on  the  other  hand,  insisted  on  two  grounds  as  tak- 
ing the  case  out  of  the  general  rule  :  first,  that  the  plaintiff,  by  leaving 
the  possession  of  the  goods  and  the  indicia  of  propert}'  in  the  hands  of 
Hoffmann,  had  enabled  the  latter  to  pledge  the  goods  to  them,  and  was 
therefore  estopped  from  denying  the  right  of  Hoffmann  so  to  deal  with 
them  ;  secondly,  that,  even  if  the  property  in  the  tobacco  still  remained 
in  the  plaintiff,  so  as  to  entitle  him  to  recover  its  value  ;  on  the  other 
hand,  the  plaintiff  had,  in  the  conduct  in  question,  been  guilty  of  neg- 
ligence by  which  the  defendants  had  been  induced  to  deal  with  Hoff- 
mann as  the  owner  of  the  tobacco,  and  to  pay  him  for  it ;  by  reason  of 
which  they  were  entitled  to  recover  back  the  amount  by  way  of  counter- 
claim, or  what  would  come  to  the  same  thing,  to  set  it  off  in  the  preseut 
action. 

There  have  been,  no  doubt,  decisions  which  would  at  fust  sight 
appear  to  favor  the  first  of  these  contentions,  but  they  are,  I  think, 
distinguishable  from  the  case  before  us.  In  Pickering  v.  Busk,  15  East, 
38,  the  purchaser  of  hemp  lying  at  a  wharf  had  himself  directed 
the  hemp  to  be  transferred  in  the  wharfinger's  books   into  the  name 


504  JOHNSON    V.    CREDIT   LYONNAIS    CO.  [CHAP.  IV. 

of  the  broker  who  had  bought  it  for  him.  It  was  held  that  from  this 
an  authority  to  the  broker  to  sell  might  be  implied,  though  no  such 
authority  had  in  fact  been  given,  and  that  his  sale  and  receipt  of  the 
money,  though  fraudulent  as  to  his  principal,  nevertheless  bound  the 
latter.  "  The  sale,"  said  Lord  Ellenborough,  "  was  made  by  a  person 
who  had  all  the  indicia  of  property  ;  the  hemp  could  only  have  been 
transferred  into  his  name  for  the  purpose  of  sale  ;  and  the  party  who 
has  so  transferred  it  cannot  now  rescind  the  contract.  If  the  plaintiff 
had  intended  to  retain  the  dominion  over  the  hemp,  he  should  have 
placed  it  in  the  wharfinger's  books  in  his  own  name."  And  Bayley,  J., 
says:  "  It  may  be  admitted  that  the  plaintiff  did  not  give  the  broker 
any  authority  to  sell.  But  an  implied  authority  may  be  given  ;  and  if 
a  person  puts  goods  into  the  custody  of  a  vendor,  whose  common  busi- 
ness it  is  to  sell,  without  limiting  his  authority,  he  thereby  confers  an 
implied  authority  upon  him  to  sell  them."  This  language  might  ap- 
pear to  be  applicable  to  the  present  case;  but  there  is  a  material  dif- 
ference between  the  two  cases.  In  Pickering  v.  Busk,  supra,  the 
purchaser  had  himself  expressly  directed  that  the  goods  should  be 
entered  in  the  broker's  name.  In  the  present  case  the  plaintiff  has  sim- 
ply remained  passive.  He  has  left  things  as  he  found  them  at  the  time 
of  his  purchase. 

The  same  observation  will  apply  to  the  case  of  Boyson  v.  Coles,  6 
M.  &  S.  14,  a  case  which  arose  prior  to  the  passing  of  6  Geo.  4,  c.  94, 
and  in  which  goods  had  been  pledged  by  a  person  alleged  to  have 
been  a  factor,  but  in  which  the  defence  was  that  the  plaintiffs  had  dealt 
with  the  broker  as  purchaser,  or,  at  all  events,  by  the  documents  which 
had  passed  between  them  had  enabled  him  to  appear  as  such  to  others, 
Lord  Ellenborough  left  to  the  jury  whether  the  plaintiffs  had  dealt  with 
the  parties  pledging  as  purchasers  of  the  goods,  or  as  brokers,  directing 
them  that,  "if  as  brokers,  the  latter  had  no  right  to  pledge  the  goods 
to  the  defendant,  unless  the  jury  considered  that  the  plaintiffs  had 
armed  them  with  such  indicia  of  property  as  to  enable  them  to  deal 
with  it,  to  others  as  their  own?"  A  new  trial  was  applied  for,  but  this 
ruling  was  not  quarrelled  with.  On  the  argument  on  the  rule,  Abbott, 
J.,  approves  of  the  questions  left  to  the  jury,  one  of  them,  he  says, 
beinn;  »  whether  the  plaintiffs  had  by  their  own  acts  enabled  Coles 
Brothers  (the  brokers)  to  hold  themselves  out  as  the  purchasers,  and 
tin  is  to  induce  the  defendant  to  advance  his  money  on  the  credit  of  the 
goods." 

In  Dyer  v.  Pearson,  3  B.  &  C.  38,  where  a  similar  question  arose, 
Abbott,  C.  J.,  told  the  jury  "  that  if  a  man  takes  upon  himself  to  pur- 
chase  from  another  under  circumstances  which  ought  to  have  excited 
his  suspicion,  and  induced  him  to  distrust  the  authority  of  the  person 
selling,  such  a  purchaser  could  not  hold  the  property  if  it  afterwards 
turned  out  that  the  person  from  whom  he  bought  had  no  authority  to 
sell  :  and  he  left  it  to  the  jury  to  say,  whether  the  defendant  had  pur- 
chased under  circumstances  which  would  have  induced  a  reasonable, 


SECT.  IV.]  JOHNSON    V.    CREDIT    LYONNAIS    CO.  565 

prudent,  and  cautious  man  to  believe  that  Smith,  of  whom  he  pur- 
chased, had  authority  to  sell.  If  they  thought  that  he  had  purchased 
under  such  circumstances,  they  were  to  find  for  the  plaintiffs."  This 
ruling  was  held  to  amount  to  misdirection,  and  a  new  trial  was  granted. 
"The  question,"  says  the  Chief  Justice,  "which  I  left  to  the  consid- 
eration of  the  jury  does  not  appear  to  me  to  have  embraced  the  whole 
case.  The  general  rule  of  the  law  of  England  is  that  a  man  who  has 
no  authority  to  sell  cannot,  by  making  a  sale,  transfer  the  property  to 
another.  There  is  one  exception  to  that  rule,  viz.,  the  case  of  sales 
in  market  overt.  This  was  not  a  sale  in  market  overt,  and  therefore 
dots  not  fall  within  the  exception.  Now,  this  being  the  rule  of  law,  I 
ought  either  to  have  told  the  jury  that  even  if  there  was  an  unsuspicious 
purchase  by  the  defendants,  yet  as  Smith  had  no  authority  to  sell,  they 
should  find  their  verdict  for  the  plaintiffs  ;  or  I  should  have  left  it  to 
the  jury  to  say  whether  the  plaintiffs  had,  by  their  own  conduct,  enabled 
Smith  to  hold  himself  forth  to  the  world  as  having,  not  the  possession 
only,  but  the  property  ;  for  if  the  real  owner  of  goods  suffer  another  to 
have  possession  of  his  property,  and  of  those  documents  which  are  the 
indicia  of  property,  then  perhaps  a  sale  by  such  a  person  would  bind 
the  true  owner.  That  would  be  the  most  favorable  way  of  putting  the 
case  for  the  defendants,  and  that  question,  if  it  arises  upon  the  evidence, 
ought  to  have  been  submitted  to  the  jury." 

It  is  to  be  observed  that  the  Chief  Justice  here  states  the  proposition 
in  anything  but  positive  terms.  No  further  mention  of  the  case  appears 
in  the  reports,  and  we  are  consequently  not  informed  what  became  of  it 
on  the  new  trial,  the  rule  for  which  was  made  absolute.  Mr.  Chitty, 
however,  in  his  work  on  Contracts  (10th  ed.  p.  355),  referring  to  these 
cases,  writes  thus:  "  It  is  said  that  if  the  real  owner  of  goods  suffers 
another  to  have  possession  thereof,  or  of  those  documents  which  are 
the  indicia  of  property  therein,  thereby  enabling  him  to  hold  himself 
forth  to  the  world  as  having,  not  the  possession  only,  but  the  property, 
a  sale  by  such  a  person  without  notice  will  bind  the  true  owner.''  But 
he  adds  this  qualification  :  "  But  probably  this  proposition  ought  to  be 
limited  to  cases  where  the  person  who  had  the  possession  of  the  goods  was 
one  who.  from  the  nature  of  his  employment,  might  be  taken  prima  facie 
to  have  had  the  right  to  sell/'  The  law,  as  thus  stated,  was  approved 
by  the  Court  of  Exchequer  in  Iliggins  v.  Burton,  26  L.  J.  (Ex.)  342. 
But  the  present  question  was  not  before  the  court  in  the  latter  case, 
the  question  there  being  whether  a  person  who  had  bought  goods  m 
the  name  of  A.,  fraudulently  representing  himself  as  A. 's  agent,  and 
had  thus  obtained  possession  of  the  goods,  could  pledge  them  so  as  to 
wive  a  title  to  the  pledgee  as  against  the  real  owner.  And  it  was  held, 
following  Kingsford  v.  Merry,  11  Ex.  577.  that  he  could  not. 

Sitting  here  in  a  Court  of  Appeal  I  feel  myself  at  liberty  to  say  that 
these  authorities  fail  to  satisfy  me  that  at  common  law  the  leaving  by  a 
vendee  goods  bought,  or  the  documents  of  title,  in  the  hands  of  the 
vendor  till  it  suited  the  convenience  of  the  former  to  take  possession 


56 G  JOHNSON    V.    CREDIT   LYONNAIS    CO.  [CHAP.  IV. 

of  them,  would,  on  a  fraudulent  sale  or  pledge  b}7  the  part}7  so  pos- 
sessed, divest  the  owner  of  his  property,  or  estop  him  from  asserting 
his  right  to  it.  If  this  had  been  so,  there  would  have  been,  as  it  seems 
to  me,  no  necessity  for  giving  effect  by  statute  to  the  unauthorized  sale 
of  goods  by  a  factor. 

The  doctrine  established  in  Pickard  v.  Sears,  6  A.  &  E.  469,  and 
Freeman  v.  Cooke,  2  Ex.  654,  18  L.  J.  (Ex.)  114,  and  the  subsequent 
cases  which  have  proceeded  on  the  same  principle,  carry  the  case  no 
further.  In  all  the  cases  decided  on  this  principle,  in  order  that  a  party 
shall  be  estopped  from  denying  his  assent  to  an  act  prejudicial  to  his 
rights,  and  which  he  might  have  resisted,  but  has  suffered  to  be  done, 
it  is  essential  that  knowledge  of  the  thing  done  shall  be  brought  home 
to  him.  Here  it  is  clear  that  the  plaintiff  had  no  knowledge  whatever 
of  the  advances  obtained  by  Hoffmann  on  the  security  of  the  goods,  or 
even  of  the  existence  of  the  dock- warrants  which  made  Hoffmann 
appear  to  be  the  owner.  It  would  be  to  carry  this  doctrine  much  too 
far  to  apply  it  where  advantage  has  been  taken  of  a  man's  remissness 
in  looking  after  his  own  interests  to  invade  or  encroach  upon  his  rights, 
in  the  absence  of  knowledge  on  his  part  of  the  thing  done,  from  which 
his  assent  to  it  could  reasonably  be  implied. 

The  defence,  founded  on  the  allegation  of  negligence,  remains  to  be 
considered. 

That  the  plaintiff,  in  omitting  to  have  the  goods  transferred  to  his 
own  name,  and  to  have  the  dock-warrants  delivered  over  to  him,  was 
wanting  in  common  prudence,  in  other  words,  was  guilty  of  negligence, 
I  cannot  bring  myself  to  doubt,  and  I  am  strongly  confirmed  in  this 
view  by  the  passing  of  the  recent  statute,  as  the  legislature  must 
have  proceeded  on  the  view  that  there  is  default  in  the  owner  in  such  a 
case. 

It  appears  to  me  no  answer  to  say  that  he  was  ignorant  of  dock- 
warrants  being  issued  in  respect  of  goods  warehoused  in  the  docks.  A 
man  who  deals  in  a  given  market  should  make  himself  acquainted  with 
the  course  of  business  prevailing  there.  Moreover,  he  knew  that  the 
tobacco  was  warehoused  in  the  bonded  warehouses  of  the  company. 
He  must  have  known  that  the  goods  would  stand  in  the  books  of  the 
company  as  the  goods  of  Hoffmann.  He  should  at  least  have  taken 
care  to  have  them  transferred  into  his  own  name.  It  is  no  answer,  as 
it  seems  to  me,  to  say  that  it  is  common  in  the  trade  for  buyers  of 
tobacco  to  leave  the  goods  and  the  indicia  of  title  in  the  hands  of  the 
seller,  and  that  hitherto  no  dishonest  advantage  has  been  taken  of  the 
opportunity  thus  afforded  for  fraud.  The  mercantile  community  are  as 
a  body  honorable  men ;  but  experience  unfortunately  tells  us  that 
frauds  occasionally  happen  where  they  might  least  be  expected.  The 
case  of  Goodwin  v.  Robarts,  Law  Rep.  10  Ex.  337,  which  was  recently 
before  (he  courts,  affords  an  example,  and  other  instances  of  a  similar 
character  occur  in  the  books.  In  the  majority  of  instances  this  occurs, 
as  in  this  case,  from  the  carelessness  of  those  concerned,  and  the  omis- 


SECT.  IV.]  JOHNSON    V.    CREDIT   LYONNAIS    CO.  567 

sion  to  take  the  precautionary  measures  which  the  regular  course  of 
business  would  prescribe.  This  manner  of  proceeding  is  not  the  less 
imprudent  and  negligent  because  a  number  of  persons,  confiding  in  the 
honesty  of  those  with  whom  they  have  dealings,  think  proper,  in  order 
to  save  themselves  trouble,  to  expose  themselves  to  a  like  risk. 

Evidence  was  gone  into  at  the  trial  of  what  was  called  the  "  prac- 
tice "  in  the  tobacco  trade  of  following  the  course  pursued  in  the  present 
instance  by  the  plaintiff,  namely,  that  of  leaving,  on  the  purchase  of 
tobacco  in  bond,  the  tobacco  and  the  dock-warrants  in  the  hands  of  the 
seller,  — whether,  with  the  view  of  meeting  the  allegation  of  negligence, 
or  as  a  substantive  answer  in  point  of  law  to  the  defendant's  claim,  as 
amounting  to  a  usage  of  trade,  it  may  be  difficult  to  say.  If  the  former, 
I  have  given  the  answer  which  occurs  to  me,  namely,  that  that  which 
would  be  negligence  in  one  does  not  become  the  less  so  because  others 
are  equally  negligent.  If  the  latter,  two  answers  present  themselves. 
First,  a  practice,  to  amount  to  a  usage  of  trade,  must  be  general  and 
uniform.  But  of  this  the  evidence  falls  altogether  short.  The  plain- 
tiff's witnesses,  called  to  prove  the  practice,  while  they  asserted  that 
the  practice  was  common,  fully  admitted  that  there  were  many  houses 
in  the  trade  who,  when  they  bought  tobacco  under  similar  circum- 
stances, insisted  on  having  the  indicia  of  title  made  over  to  them.  Nor 
did  these  witnesses  for  a  moment  deny  that  a  purchaser  was  entitled  to 
have  such  a  demand  complied  with.  This  being  so,  any  assertion  of 
usage  of  trade  necessarily  fails. 

But,  besides  this,  a  usage  of  trade,  like  any  other  custom,  to  be  valid 
must  be  reasonable.  But  a  usage  cannot  be  said  to  be  reasonable 
which  enables  a  dishonest  vendor,  through  the  negligence  of  his  ven- 
dee, to  defraud  a  second  purchaser,  or  a  pledgee,  by  a  pretended  sale 
or  pledge. 

But  whether  this  negligence  of  the  plaintiff  will,  under  the  circum- 
stances, give  to  the  defendants  any  ground  of  complaint  which  can  be 
enforced  in  point  of  law,  is  a  very  different  question.  Negligence,  to 
afford  a  ground  of  action  to  one  who  has  suffered  from  it,  must  have 
reference  to  some  duty  which  the  party  guilty  of  the  negligence  owed  to 
him.  The  law  is,  in  my  opinion,  correctly  stated  by  Blackburn,  J.,  in 
Swan  v.  North  British  Australian  Company,  2  H.  &  C.  175,  at  p.  181  ;  32 
L.  J.  (Ex.)  273,  at  p.  27G,  where,  after  referring  to  what  was  said  by 
Parke,  B.,  in  Freeman  v.  Cooke,  2  Ex.  654,  18  L.  J.  (Ex.)  114, 
namely,  that  "  negligence  to  have  the  effect  of  estopping  the  party 
must  be  the  neglect  of  some  duty  cast  upon  the  person  guilty  of  it,"  he 
goes  on  to  sa}' :  "  This,  I  apprehend,  is  a  true  and  sound  principle.  A 
person  who  does  not  lock  up  his  goods,  which  are  consequently  stolen, 
may  be  said  to  be  negligent  as  regards  himself;  but,  inasmuch  as  he 
neglects  no  duty  which  the  law  casts  upon  him,  he  is  not  in  conse- 
quence estopped  from  denying  the  title  of  those  who  may  have,  how- 
ever innocentby,  purchased  those  goods  from  the  thief,  except  in  market 
overt."     The   same   principle   would   obviously   apply  to  the   case  of 


568  ENGLISH    STATUTES.  [CHAP.  IV. 

goods  fraudulently  sold  or  pledged  by  a  person  left  in  possession  of 
them.  The  rule  thus  laid  down  is  applicable  here.  The  plaintiff  may 
have  been  negligent,  ami  his  negligence  may  have  brought  on  the  de- 
fendants the  loss  of  the  money  they  have  advanced.  But  the  plaintiff 
owed  no  duty  to  the  defendants,  — at  least  no  duty  which  the  law  can 
recognize,  —  either  as  individuals  or  as  members  of  the  general  public. 

The  case  of  Young  v.  Grote,  4  Bing.  253,  is,  as  was  pointed  out  in 
the  case  just  referred  to,  plainly  distinguishable.  For,  there,  there  was 
a  duty  on  the  part  of  the  customer  to  use  due  care  in  drawing  the 
check,  so  as  to  protect  the  banker  against  the  risk  of  forgery  in  the 
amount  for  which  the  check  was  drawn. 

This  being  so,  I  am  of  opinion  that  the  negligence  of  the  plaintiff 
neither  estops  him  from  claiming  the  goods  in  question  from  the  defend- 
ants, nor  gives  the  latter  a  counter-claim  for  the  money  which  they 
have  advanced  to  Hoffmann  on  the  security  of  the  goods. 

I  am  therefore  of  opinion  that  the  judgment  of  Mr.  Justice  Denman 
in  the  case  of  Johnson  v.  Credit  Lyonnais  Company,  2  C.  P.  D.  22-i, 
should  be  affirmed. 

With  regard  to  the  judgment  of  Mr.  Justice  Field  in  Johnson  v.  Blu- 
menthal,  I  feel  bound  to  say  that  the  question  put -to  the  jury,  as  I 
understand  at  the  instance  of  counsel,  and  the  answer  given  to  it  do 
not  appear  to  me  to  be  conclusive  of  the  case  or  sufficient  to  found  the 
judgment;  and  if  there  were  any  material  fact  in  dispute,  I  should 
think  it  necessary  to  send  the  case  back  to  a  new  trial.  But  as,  upon 
the  admitted  facts,  the  plaintiff  is,  for  the  reasons  I  have  given,  in  my 
opinion,  entitled  to  judgment,  a  new  trial  would  be  useless  and  un- 
necessary. In  this  action  also,  therefore,  I  think  that  the  appeal  should 
be  dismissed  and  the  judgment  affirmed. 

Judgments  affirmed. 


40   and  41    VICTORIA,    Cap.   39. 
An  Act  to  amend  the  Factors  Acts. 

II.  Where  any  agent  or  person  has  been  intrusted  with  and  continues  in  the  pos- 
session >>f  any  goods,  or  documents  of  title  to  goods,  within  the  meaning  of  the  prin- 
cipal Acts  as  amended  by  this  Act,  any  revocation  of  his  infrustment  or  agency  shall 
nut  prejudice  or  affect  the  title  or  rights  of  any  other  person  who,  without  notice  of 
such  revocation,  purchases  such  goods,  or  makes  advances  upon  the  faith  or  security 
of  such  goods  or  documents. 

II  I.  Where  any  goods  have  been  sold,  and  the  vendor  or  any  person  on  his  behalf 
continues  or  is  in  possession  of  the  documents  of  the  title  thereto,  any  sale,  pledge,  or 
other  disposition  of  the  goods  or  documents  made  by  such  vendor  or  any  person  or 
agenl  inl  rusted  by  the  vendor  with  the  goods  or  documents  within  the  meaning  of  the 
principal  Acts  as  amended  by  this  Act  so  continuing  or  being  in  possession,  shall  he 
did  and  effectual  as  if  such  vendor  or  person  were  an  agent  or  person  intrusted 
by  the  vendee  with  the  goods  or  documents  wit Inn  the  meaning  of  the  principal  Acts  as 
amended  by  this  Act,  provided  tin-  person  to  whom  the  sale,  pledge,  orother  disposition 
is  made  has  not  notice  that  the  goods  have  been  previously  sold. 


SECT.  IV.]  THE    FACTOKS   ACT.  569 

IV.  Where  any  goods  have  been  sold  or  contracted  to  be  sold,  and  the  vendee,  or 
any  person  on  his  behalf,  obtains  the  possession  of  the  documents  of  title  thereto  from 
the  vendor  or  his  agents,  any  sale,  pledge,  or  disposition  of  such  goods  or  documents  by 
such  vendee  bo  in  possession  or  by  any  other  person  or  agent  intrusted  by  the  vendee 
with  the  documents  within  the  meaning  of  the  principal  Acts  as  amended  by  this  Act 
shall  be  as  valid  and  effectual  as  if  such  vendee  or  other  person  were  an  agent  or  per- 
son intrusted  by  the  vendor  with  the  documents  within  the  meaning  of  the  principal 
Aits  as  amended  by  this  Act,  provided  the  person  to  whom  the  sale,  pledge,  or  other 
disposition  is  made  has  not  notice  of  any  lieu  or  other  right  of  the  vendor  in  respect  of 
the  floods. 

V.  Where  any  document  of  title  to  goods  has  been  lawfully  indorsed  or  otherwise 
transferred  to  any  person  as  a  vendee  or  owner  of  the  goods, and  such  person  transfers 
such  document  by  indorsement  (or  by  delivery  where  the  document  is  by  custom,  or 
by  its  express  terms  transferable  by  delivery,  or  makes  the  goods  deliverabli 
the  bearer)  to  a  person  who  takes  the  same  bona  fide  and  for  valuable  consideration 
the  last-mentioned  transfer  shall  have  the  same  effect  for  defeating  any  vendor's  lien 
or  right  of  stoppage  in  transitu  as  the  transfer  of  a  bill  of  lading  has  for  defeating  the 
right  of  stoppage  in  transitu. 


THE   FACTORS   ACT,   1889. 

(52  <j-  53  Victoria,  C.  45.) 

An  Act  to  Amend  and  Consolidate  the  Factors  Acts. 

Be  it  enacted  by  the  Queen's  most  Excellent  Majesty,  by  and  with  the  advice  and 
consent  of  the  Lords  Spiritual  and  Temporal  and  Commons  in  this  present  Parliament 
assembled,  and  by  the  authority  of  the  same,  as  follows  :  — 

1.  For  the  purposes  of  this  Act.  (1 )  The  expression  "  mercantile  agent  "  shall  mean 
a  mercantile  agent  having  iu  the  customary  course  of  his  business  as  such  agent 
authority  cither  to  sell  goods  or  to  consign  goods  for  the  purpose  of  sale,  or  to  buy 
goods  or  to  raise  money  ou  the  security  of  goods:  (2)  A  person  shall  be  deemed  to 
be  in  possession  of  goods  or  of  the  documents  of  title  to  goods,  where  the  goods  or 
documents  are  in  his  actual  custody  or  are  held  by  any  other  person  subject  to  his 
control  or  for  him  or  on  his  behalf  :  (3)  The  expression  "  goods  "  shall  include  wares 
and  merchandise :  (4)  The  expression  "  document  of  title  "  shall  include  any  bill  of 
lading,  dock-warrant,  warehouse-keeper's  certificate,  and  warrant  or  order  for  the 
delivery  of  goods,  and  any  other  document  used  in  the  ordinary  course  of  business  as 
proof  of  the  possession  or  control  of  goods,  or  authorizing  or  purporting  to  authorize, 
either  by  indorsement  or  by  delivery,  the  possessor  of  the  document  to  transfer  or 
receive  goods  thereby  represented  :  (5)  The  expression  "  pledge "  shall  include  any 
contract  pledging,  or  giving  a  lien  or  security  on,  goods,  whether  in  consideration  of 
an  original  advance  or  of  any  further  or  continuing  advance  or  of  any  pecuniary  lia- 
bility (f>)  The  expression  "  person  "  shall  include  any  body  of  persons  corporate  or 
unincorporate. 

2.  (1)   Where  a  mercantile  agent  is,  with  the  consent  of  the  owner,  in  ; sion  of 

goods  or  of  the  document  of  title  to  goods,  any  sale,  pledge  or  other  disposition  of  the 
goods  made  by  him,  when  acting  in  the  ordinary  course  of  business  id'  a  mercantile 
agent,  shall,  subject  to  the  provisions  of  this  Act,  be  as  valid  as  if  he  were  expressly 
authorized  bj  the  owner  of  the  goods  to  make  the  same;  provided  that  the  person 
taking  under  the  disposition  acts  in  good  faith,  and  has  not  at  the  time  of  the  disposi- 
tion notice  that  the  person  making  the  disposition  has  not  authority  to  make  the  same. 
(2)  Where  a  mercantile  agent  has,  with  the  consent  of  the  owner,  been  iu  possession 
of  goods  or  of  the  documents  of  title  to  goods,  any  sale,  pledge,  or  other  disposition, 
which  would  have  been  valid  if  the  consent   had  continued,  shall  lie  notwithstac 

the  determination  of  the  consent  provided  that  the  person  taking  under  the  dispo- 
sition has  not    at    the   time    thereof    notice    that   the    consent    has   been    determined 


570  THE   FACTORS    ACT.  [CHAP.  IV. 

(3)  Where  a  mercantile  agent  has  obtained  possession  of  any  documents  of  title  to  goods 
by  reason  of  his  being  or  having  been,  with  the  consent  of  the  owner,  in  possession  of 
the  goods  represented  thereby,  or  of  any  other  documents  of  title  to  the  goods,  his  pos- 
session of  the  first  mentioned  documents  shall,  for  the  purposes  of  this  Act,  be  deemed 
to  be  with  the  consent  of  the  owner.  (4)  For  the  purposes  of  this  Act  the  consent 
of  the  owner  shall  be  presumed  in  the  absence  of  evidence  to  the  contrary. 

.3.  A  pledge  of  the  documents  of  title  to  goods  shall  be  deemed  to  be  a  pledge  of 

the  goods. 

4.  Where  a  mercantile  agent  pledges  goods  as  security  for  a  debt  or  liability  due 
from  the  pledgor  to  the  pledgee  before  the  time  of  the  pledge,  the  pledgee  shall  ac- 
quire no  further  right  to  the  goods  than  could  have  been  enforced  by  the  pledgor 
at  the  time  of  the  pledge. 

5.  The  consideration  necessary  for  the  validity  of  a  sale,  pledge,  or  other  disposition, 
of  goods,  in  pursuance  of  this  Act,  may  be  either  a  payment  in  cash,  or  the  delivery 
or  transfer  of  other  goods,  or  of  a  document  of  title  to  goods,  or  of  a  negotiable 
security,  or  any  other  valuable  consideration ;  but  where  goods  are  pledged  by  a  mer- 
cantile agent  in  consideration  of  the  delivery  or  transfer  of  other  goods,  or  of  a  docu- 
ment of  title  to  goods,  or  of  a  negotiable  security,  the  pledgee  shall  acquire  no  right 
or  interest  in  the  goods  so  pledged  in  excess  of  the  value  of  the  goods,  documents,  or 
security  when  so  delivered  or  transferred  in  exchange. 

6.  For  the  purposes  of  this  Act  an  agreement  made  with  a  mercantile  agent  through 
a  clerk  or  other  person  in  the  ordinary  course  of  business  to  make  contracts  of  sale  or 
pledge  on  his  behalf  shall  be  deemed  to  be  an  agreement  with  the  agent. 

7.  (1)  Where  the  owner  of  goods  has  given  possession  of  the  goods  to  another  per- 
son for  the  purpose  of  consignment  or  sale,  or  has  shipped  the  goods  in  the  name  of 
another  person,  and  the  consignee  of  the  goods  has  not  had  notice  that  such  person  is 
not  the  owner  of  the  goods,  the  consignee  shall,  in  respect  of  advances  made  to  or  for 
the  use  of  such  person,  have  the  same  lien  on  the  goods  as  if  such  person  were  the 
owner  of  the  goods,  and  may  transfer  any  such  lien  to  another  person.  (2)  Nothing 
in  this  section  shall  limit  or  affect  the  validity  of  any  sale,  pledge,  or  disposition, 
by  a  mercantile  agent. 

8.  Where  a  person,  having  sold  goods,  continues,  or  is,  in  possession  of  the  goods 
or  of  the  documents  of  title  to  the  goods,  the  delivery  or  transfer  by  that  person,  or 
bv  a  mercantile  agent  acting  for  him,  of  the  goods  or  documents  of  title  under  any 
sale,  pledge,  or  other  disposition  thereof,  or  under  any  agreement  for  sale,  pledge,  or 
other  disposition  thereof,  to  any  person  receiving  the  same  in  good  faith,  and  without 
notice  of  the  previous  sale,  shall  have  the  same  effect  as  if  the  person  making  the  de- 
livery or  transfer  were  expressly  authorized  by  the  owner  of  the  goods  to  make  the  same. 

9.  Where  a  person,  having  bought  or  agreed  to  buy  goods,  obtains  with  the  con- 
sent of  the  seller  possession  of  the  goods  or  the  documents  of  title  to  the  goods,  the 
delivery  or  transfer,  by  that  person  or  by  a  mercantile  agent  acting  for  him,  of  the 
goods  or  documents  of  title,  under  any  sale,  pledge,  or  other  disposition  thereof ,  or 
under  any  agreement  for  sale,  pledge,  orother  disposition  thereof ,  to  any  person  receiv- 
ing the  same  in  good  faith,  and  without  notice  of  any  lien  or  other  right  of  the  origi- 
nal seller  in  respect  of  the  goods,  shall  have  the  same  effect  as  if  the  person  making 
the  delivery  or  transfer  were  a  mercantile  agent  in  possession  of  the  goods  or  docu- 
ments of  title  with  the  consent  of  the  owner. 

10.  Where  a  document  of  title  to  goods  has  been  lawfully  transferred  to  a  person  as  a 
Inner  or  owner  of  the  goods,  and  that  person  transfers  the  document  to  a  person  who 
takes  bhe  document  in  good  faith  and  for  valuable  consideration,  the  last  mentioned 
transfer  shall  have  the  same  effect  for  defeating  any  vendor's  lien  or  right  of  stoppage  (Vi 
transitu  as  the  transfer  of  a  bill  of  lading  has  for  defeating  the  right  of  stoppage  in 
transitu. 

11.  For  the  purposes  of  this  Act,  the  transfer  of  a  document  may  be  by  indorse- 
ment, or,  where  the  document  is  by  custom  or  by  its  express  terms  transferable  by 
delivery,  or  makes  the  g Is  deliverable  to  the  bearer,  then  by  delivery. 

1-2.  (1)   Nothing  in  this  Act  shall  authorize  an  agent  to  exceed  or  depart  from  his 


SECT.  IV.]  LEE    V.    BUTLER.  571 

authority  as  between  himself  and  his  principal,  or  exempt  him  from  any  liability, 
civil  or  criminal,  lor  so  doing.  (2)  Nothing  in  this  Act  shall  prevent  the  owner  of 
goods  from  recovering  the  goods  from  an  agent  or  his  trustee  in  bankruptcy  at  any 
time  before  the  sale  or  pledge  thereof,  or  shall  prevent  the  owner  of  goods  pledged  by 
an  agent,  from  having  the  right  to  redeem  the  goods  at  any  time  before  the  sale 
thereof,  on  satisfying  the  claim  for  which  the  goods  were  pledged,  and  paying  to  the 
agent,  if  by  him  required,  any  money  in  respect  of  which  the  agent  would  be  by  law  en- 
titled to  retain  the  goods  or  the  documents  of  title  thereto,  or  any  of  them,  by  way  of 
lien  as  against  the  owner,  or  from  recovering  from  any  person  with  whom  the  goods 
have  been  pledged  any  balance  of  money  remaining  in  his  hands  as  the  produce  of  the 
Bale  of  the  j.hmIs  after  deducting  the  amount  of  his  lien.  (3)  Nothing  in  this  Act 
shall  prevent  the  owner  of  goods  sold  by  an  agent  from  recovering  from  the  buyer  the 
price  agreed  to  be  paid  lor  the  same,  or  any  part  of  that  price,  subject  to  any  right  of 
set-off  on  the  part  of  the  buyer  against  the  agent. 

13.  The  provisions  of  this  Act  shall  be  construed  in  amplification  and  not  in  deroga- 
tion of  the  powers  exercisable  by  an  agent  independently  of  this  Act, 

14.  The  enactments  mentioned  in  the  schedule  to  this  Act  are  hereby  repealed  as 
from  the  commencement  of  this  Act,  but  this  repeal  shall  not  affect  any  right  accmired 
or  liability  incurred  before  the  commencement  of  this  Act. 

15.  This  Act  shall  commence  and  come  into  operation  on  the  first  day  of  January 
one  thousand  eight  hundred  and  ninety. 

16.  This  Act  shall  not  extend  to  Scotland. 

17.  This  Act  may  be  cited  as  the  Factors  Act,  1889. 


LEE  v.  BUTLER. 
In  the  Queen's  Bench  Division,  Court  of  Appeal,  August  2,  1893. 

[Reported  i?i  [1893]  2  Queen's  Bench,  318.] 

Appeal  from  the  judgment  of  Wright,  J.,  at  the  trial,  without  a 
a  jury,  in  Middlesex. 

The  plaintiff's  claim  in  the  action  was  for  the  return  of  certain 
goods  alleged  to  be  detained  by  the  defendant,  or  the  value  of  such 
goods,  and  damages  for  their  detention. 

The  following  facts  were  proved  in  evidence  or  admitted  at  the 
trial:  On  May  5,  1892,  a  hire  and  purchase  agreement  in  writing  was 
entered  into  between  W.  E.  Hardy,  furniture  dealer,  and  Helen  Caro- 
line Lloyd,  of  Thistle  Grove  Lane,  South  Kensington,  the  terms  of 
which  (so  far  as  is  material)  were  as  follows  : — 

"First:  The  said  W.  E.  Hardy  agrees  to  let  on  hire  unto  the  said 
H.  C.  Lloyd,  hereinafter  called  the  hirer,  who  agrees  to  take  on  hire 
upon  the  terms  hereinafter  expressed,  the  furniture,  goods,  and  chat- 
tels mentioned  and  specified  in  the  schedule  hereunder  written. 

"  Second:  The  said  hirer  for  herself  agrees,  subject  as  hereinafter 
provided,  to  pay  to  the  said  W.  E.  Hardy,  as  and  by  way  of  rent  for  the 
hire  and  use  of  the  said  furniture,  goods,  and  chattels,  the  respective 
sums  and  at  the  periods  following  :  that  is  to  say,  the  sum  of  £1  on 
May  6,  and  the  further  sum  of  £96  4s.  on  August  1.  1892. 

"  Third  :    The  said  hirer  further  agrees  that  she  will  not,  during 


572  LEE   V.   BUTLER.  [CHAP.  IV. 

the  continuance  of  this  agreement,  remove  the  said  furniture,  goods, 
and  chattels  from  5  Thistle  Grove  Lane  aforesaid  to  any  other  prem- 
ises without  the  consent  in  writing  of  the  said  W.  E.  Hardy  .  .  ." 

The  fifth  clause  provided  that  if  at  any  time  thereafter  during  the 
continuance  of  the  agreement  any  payment  of  rent  thereby  reserved 
should  be  in  arrear  and  unpaid  for  the  space  of  one  week  after  the 
specified  days  or  times  whereon  the  same  should  become  due,  or  if  the 
hirer  should  remove  the  said  furniture,  goods,  and  chattels  from  5 
Thistle  Grove  Lane,  or  from  any  place  to  which  they  should  have  been 
removed  with  the  consent  of  W.  E.  Hardy,  then  it  should  be  law- 
ful for  W.  E.  Hardy  or  his  agent  forthwith  to  take  possession  of 
and  recover  the  said  furniture,  goods,  and  chattels  without  notice  to 
the  hirer  of  his  intention  so  to  do,  and  for  that  purpose  if  necessary  to 
enter  by  force  into  any  premises  where  the  said  furniture,  goods,  and 
chattels  might  then  be,  and  search  for  and  remove  the  same.  And  in 
such  case  the  hirer  agreed  that  all  moneys  paid  by  her  before  such  de- 
fault should  be  applied  by  W.  E.  Hardy  as  payment  on  account  of 
hire  and  not  as  part  payment  of  the  said  furniture,  goods,  and 
chattels. 

The  fifth  clause  concluded  :  — 

"The  said  W.  E.  Hardy  for  himself  hereby  agrees  that  when  and 
as  soon  as  the  said  hirer  shall  have  well  aud  truly  made  all  payments 
of  rents  hereinbefore  reserved  and  performed  all  the  stipulations  and 
agreements  hereinbefore  on  her  part  contained,  the  rent  or  payments 
hereinbefore  mentioned  and  reserved  for  the  said  furniture,  goods,  and 
chattels,  shall  thereupon  cease,  and  the  aforesaid  furniture,  goods, 
and  chattels  shall  thenceforth  be  and  become  the  sole  and  absolute 
property  of  the  said  hirer.  But  it  is  expressly  declared  and  agreed 
that  no  property  or  interest  in  the  said  furniture,  goods,  and  chattels 
other  than  as  tenant  as  aforesaid  shall  vest  in  the  said  hirer  until  the 
whole  of  the  said  payments  of  rent  hereby  reserved,  amounting 
together  to  the  sum  of  £97  4s.,  shall  have  been  actually  made  by  her 
as  hereinbefore  provided." 

A  schedule  of  the  articles  of  furniture  followed. 

W.  E.  Hardy  duly  assigned  the  agreement  and  all  his  interest 
thereunder  to  the  plaintiff,  and  subsequently  Mrs.  Lloyd,  before  all 
the  instalments  were  paid  under  the  agreement,  sold  and  delivered  the 
goods  to  the  defendant,  in  whose  possession  they  were  when  the  action 
was  brought. 

Wright,  J.,  gave  judgment  for  the  defendant,  holding  that  the 
case  came  within  s.  9  of  the  Factors  Act,  1889  (52  &  53  Vict.  c.  45), 
which  section  afforded  a  good  defence  to  the  action. 

The  plaintiff  appealed. 

Lynch,  for  the  appellant. 

C.  L.  Attenborough,  for  the  respondent,  was  not  heard. 

Lord  Esher,  M.  R.  This  is  a  very  plain  case,  and  the  construction 
of  the  statute  is  very  clear.     It  deals  with  "  Dispositions  by  mercan- 


SECT.  IV.]  .MASS.    PUBLIC    STATUTES.  673 

tile  agents  "  in  one  set  of  sections,  nnrl  with  "  Dispositions  by  sellers 
and  buyers  of  goods"  in  another  set  of  sections,  in  which  s.  !J  is  in- 
cluded. The  case  is  clearly  within  that  section.  [His  Lordship  read 
s.  9.]  Mrs.  Lloyd  had  agreed  by  this  hire  and  purchase  agreement  to 
buy  the  goods,  and  they  were  put  into  her  possession  with  the  consent 
of  the  owner.  Mrs.  Lloyd  sold  the  goods  to  the  defendant  without 
notice  that  they  were  not  hers,  and  he,  acting  in  good  faith  and  with 
no  notice  of  the  plaintiff's  right,  received  them.  Sect.  9  was  passed 
to  meet  this  very  kind  of  case.  I  am  of  opinion  that  the  judgment  of 
Wright,  J.,  was  right,  and  this  appeal  should  be  dismissed. 

Ajipeal  dismissed.1 


MASSACHUSETTS   PUBLIC   STATUTES,  Cap.   71. 

Section  1.  Every  factor  or  other  agent  intrusted  with  the  possession  of  merchan- 
dise or  of  a  hill  of  lading,  consigning  merchandise  to  him  for  the  purpose  of  sale,  shall 
he  deemed  to  be  the  true  owner  of  such  merchandise,  so  far  as  to  give  validity  to  any 
bona  fide  contract  made  by  him  with  any  other  person  for  the  sale  of  the  whole  or  a 
part  thereof. 

Sect.  2.  Every  person  in  whose  name  merchandise  is  shipped  for  sale  by  a  person 
in  the  lawful  possession  thereof  at  the  time  of  the  shipment  shall  he  deemed  to  be  the 
true  owner  thereof  so  far  as  to  entitle  the  consignee  to  a  lien  thereon  for  money  ad- 
vanced or  securities  given  to  the  shipper  for  or  on  account  of  such  consignment,  unless 
the  consignee,  at  or  before  the  time  when  he  made  the  advances  or  gave  the  securities, 
had  notice  by  the  bill  of  lading  or  otherwise  that  the  shipper  was  not  the  actual  and 
bona  fide  owner. 

Sect.  3.  When  a  person  intrusted  with  merchandise,  and  having  authority  to  sell 
or  consign  the  same,  ships  or  otherwise  transmits  or  delivers  it  to  any  other  person, 
such  other  person  shall  have  a  lien  thereon  for  any  money  or  merchandise  advanced  or 
for  any  negotiable  security  given  by  him,  on  the  faith  of  such  consignment,  to  or  for 
the  use  of  the  person  in  whose  name  the  consignment  or  delivery  was  made,  and  for  any 
money,  negotiable  security,  or  merchandise  received  for  the  use  of  such  consignee  by 
the  person  in  whose  name  the  consignment  or  delivery  was  made,  if  such  consignee  had, 
at  the  time  of  such  advance  or  receipt,  probable  cause  to  believe  that  the  person  in 
whose  name  the  merchandise  was  shipped,  transmitted,  or  delivered,  was  the  actual 
owner  thereof,  or  had  a  legal  interest  therein  to  the  amount  of  said  lien. 

Sect.  4.  When  a  consignee  or  factor,  having  possession  of  merchandise  with 
authority  to  sell  the  same,  or  having  with  such  authority  possession  of  a  bill  of  lading, 
permit,  certificate,  or  order  for  the  delivery  of  merchandise,  deposits  or  pledges  such 
merchandise  or  a  part  thereof  or  such  document  with  any  other  person  as  a  securitv  for 
money  or  merchandise  advanced  or  for  a  negotiable  instrument  given  by  him  upon  the 
credit  thereof,  such  other  person  (if  he  makes  such  loan,  advance,  or  exchange  in  good 
faith  and  with  probable  cause  to  believe  that  the  agent  making  the  deposit  or  pledge 
had  authority  so  to  do  and  was  not  acting  fraudulently  against  the  owner  of  such  mer- 
chandise) shall,  notwithstanding  he  has  notice  of  such  agency,  acquire  the  same  interest 
in  and  authority  over  such  merchandise  and  documents  as  he  would  have  acquired  if 
the  agent  had  been  the  actual  owner  thereof. 

Sect.  5.  When  such  merchandise  or  document  is  accepted  in  deposit  or  pledge  for 
an  antecedent  debt  due  from  such  consignee  or  factor,  the  person  receiving  the  same 
shall  thereby  acquire  no  other  or  further  right  or  interest  in  or  authority  over  or  lien 
upon  the  same  than  the  consignee  or  factor  might  have  enforced  against  the  actual 
owner. 

i  Bowen  and  Kat,  L.  JJ.,  concurred. 


574  THACHER  V.    MOORS.  [CHAP.  IV. 

Sect.  6.  The  provisions  of  the  three  preceding  sections  shall  not  affect  the  lien  of 
a  consignee  or  factor  for  the  expenses  and  charges  attending  the  shipment,  transporta- 
tion, and  care  of  merchandise  intrusted  to  him  ;  nor  prevent  the  actual  owner  of  mer- 
chandise from  recovering  it,  previous  to  any  pledge  thereof,  from  the  consignee  or 
factor  or  from  his  assignee  in  case  of  his  insolvency ,  nor  prevent  such  owner  from  re- 
covering any  merchandise  or  document  so  deposited  or  pledged,  upon  tender  of  the 
money  and  restoration  of  the  negotiable  security  or  property  so  advanced  to  such  con- 
signee or  factor,  and  upon  tender  of  such  further  sum  of  money  and  restoration  of  such 
negotiable  instrument  or  property  as  may  have  been  advanced  or  given  by  the  consignee 
or  factor  to  the  owner,  or  upon  tender  of  a  sum  of  money  equal  to  the  amount  or  value 
of  such  merchandise ;  nor  prevent  him  from  recovering  from  a  person  with  whom  such 
merchandise  has  been  so  deposited  or  pledged  any  balance  of  money  remaining  in  his 
hands  as  the  proceeds  of  the  sales  thereof,  after  deducting  the  amount  or  value  of  the 
money  or  negotiable  security  so  advanced  thereon.1 


THACHER  v.   MOORS. 

Supreme  Judicial  Court  op  Massachusetts,  March  19,  1880  — 
January  20,  1883. 

[Reported  in  134  Massachusetts,  156.] 

Tort  for  the  conversion  of  184  bags  of  wool.  Writ  dated  January 
12,  1878.  Trial  in  this  court,  without  a  jury,  at  September  term  1879, 
before  Ames,  J.,  who  reported  the  case  for  the  consideration  of  the 
full  court,  in  substance  as  follows  :  — 

At  the  time  of  the  transactions  hereinafter  stated,  the  plaintiff  was 
a  merchant,  doing  business  in  Boston  under  the  name  of  H.  C. 
Thacher  and  Company,  and  was  engaged  in  buying,  selling,  and  receiv- 
ing consignments  of  wool  for  sale  on  commission,  and  making  advances 
upon  said  consignments ;  and  the  defendant  was  a  banker,  doing  busi- 
ness in  Boston  under  the  name  of  J.  B.  Moors  and  Company. 

One  Isaac  H.  Jones,  Jr.,  up  to  about  Nov.  15,  1877,  when  he 
absconded,  carried  on  business  in  Boston,  having  his  office  in  Federal 
Street.  Upon  the  sign  on  his  office  door  were  the  words  "  AVool 
Broker ;  "  at  the  entrance  of  the  building  in  which  he  had  his  office 
was  painted  the  word  "Wool;"  upon  some  of  his  business  cards  he 
was  styled  "  Wool  Broker,"  upon  others,  "  Wool  Broker  and  Com- 
mission Merchant,"  and  upon  his  bill-heads,  "  AVool  Commission  Mer- 
chant." It  appeared  that  he  did  business  in  wool,  partly  as  a  broker, 
to  a  considerable  extent  on  his  own  account,  and  sometimes  as  a  com- 
mission merchant.  He  had  two  large  lofts  suitable  for  the  storage  and 
exhibition  of  wool,  in  which,  in  addition  to  his  other  business,  he  was 
accustomed  to  store  wool  as  a  warehouseman  for  other  persons,  and 
also  wool  belonging  or  consigned  to  himself.  Jones  had  a  price  on, 
ami  offered  for  sale  as  a  broker,  all  wools  in  his  stores,  but  there  was 

i  Sections  1  and  2  are  made  up  from  c.  193  of  the  Acts  of  1S45:  Sections  4,  5,  and 
6  from  <■.  216  of  the  Acts  of  1849.  In  tin'  General  Statutes,  chap.  :>i.  the  sections  arc 
identical  with  those  above  printed,  but  Sections  1  and  2  are  transposed. 


SECT.  IV.]  THA.CHER   V.    MOORS.  575 

no  evidence  that  the  plaintiff  knew  this.     Jones  had  had  large  transac- 
tions with  the  plaintiff,  both  as  a  broker  and  on  his  own  account. 

The  defendant  had  known  Jones  for  about  four  years  and  a  half  ; 
had  visited  his  otlice  in  Federal  Street :  had  on  one  occasion  stored 
wool  with  him  as  a  warehouseman,  and  upon  all  the  evidence  must  be 
assumed  to  have  known  hie  general  course  of  business,  and  that  he 
acted  in  the  different  capacities  of  broker  and  merchant  and  ware- 
houseman. 

Before  July,  1877,  Jones  applied  to  the  plaintiff  to  tako  consignments 
of  wool  to  be  made  to  him  by  George  B.  Fessenden,  of  Wells  River, 
Vermont.  The  plaintiff  agreed  to  accept  such  consignments,  and  to 
advance  about  three-fourths  of  their  value.  No  agreement  was  made 
by  the  plaintiff  with  Jones  at  the  time  as  to  warehousing  or  selling 
said  wool,  or  as  to  Jones's  acting  as  a  broker  in  the  sale  of  the  same. 

On  July  9,  1877,  the  first  consignment  was  made.  A  railroad  re- 
ceipt and  an  invoice  were  enclosed  in  a  letter  to  Jones,  and  were 
brought  and  delivered  by  him  to  the  plaintiff,  in  whose  possession  they 
have  since  remained.  The  receipt  was  signed  by  the  agent  of  a  rail- 
road company  in  New  Hampshire,  and  stated  that  a  certain  number  of 
sacks  of  wool  were  "received  of  G.  B.  Fessenden,"  and  were  "con- 
signed to  H.  C.  Thacher  &  Co.,  Boston."  The  invoice  was  headed, 
"  Invoice  of  forty-five  bags  wool  consigned  to  H.  C.  Thacher  &  Co. 
for  sale  for  my  account,"  and  was  signed  "  Geo.  B.  Fessenden." 
Upon  the  arrival  of  the  wool  in  Boston,  the  plaintiff  gave  orders  to  the 
carrier  to  deliver  it  to  a  truckman  who  acted  frequently  for  Jones,  to 
be  stored  in  Jones's  lofts,  and  received  from  Jones  the  following 
receipt:  "Boston,  July  12,  1877.  Received  in  store  102  Federal 
Street,  for  ac.  H.  C.  Thacher  &  Co.  45  bags  fleece  wool,  Fessenden 
consgt.  ac.  I.  H.  Jones,  Jr."  All  the  subsequent  consignments  were 
made  in  the  same  way,  and  similar  receipts  for  all  the  consignments 
were  given  by  Jones  to  the  plaintiff.  The  plaintiff  paid  drafts  upon 
him  for  three-fourths  of  the  value  of  the  parcels  of  wool  as  consigned, 
and  also  paid  freight  to  the  carrier.  The  wool  in  controvers}'  is  part 
of  said  consignments.  Some  of  the  drafts  on  the  plaintiff  were  pay- 
able to  the  order  of  Jones. 

The  wool  was  bought  by  Fessenden  upon  joint  account  with  Jones, 
under  an  arrangement  between  them,  by  which  Fessenden  was  to  buy 
the  wool  of  the  farmers  in  Vermont,  and  Jones  was  to  find  the  money 
(either  furnishing  it  himself  or  procuring  some  one  else  to  advance 
upon  the  wool)  and  have  control  of  the  sale  of  it  in  Boston,  and  the 
profits  were  to  be  divided  between  them.  The  plaintiff  had  no  knowl- 
edge  of  this  arrangement  until  after  Jones  absconded  ;  ami  had  no 
reason  to  suppose  or  suspect  that  Jones  had  any  interest  in  the  wool, 
or  was  a  partner  with  Fessenden  in  the  transaction.  The  plaintiff  did 
not  intentionally  give  up  the  control  of  the  wool,  or  intend  to  part  with 
his  rights  in  delivering  the  same  to  Jones,  as  before  stated.  Jones 
advanced  money  in  excess  of  that  advanced  by  the  plaintiff. 


576  THACHER  V.    MOORS.  [CHAP.  IV. 

The  wool  after  being  received  in  Jones's  lofts  was  sorted,  by  an 
order  of  the  plaintiff  given  to  Jones,  by  cutting  open  each  bag  and 
separating  the  different  kinds  of  fleeces,  one  from  the  others.  The 
different  kinds  were  then  put  into  new  and  separate  bags.  This  sort- 
ing is  customary,  and  is  necessary  to  put  the  wool  into  a  condition  to 
be  exhibited  to  buyers.  While  the  wool  was  lying  open,  it  was  seen 
by  the  plaintiff  in  Jones's  lofts. 

Jones  had  no  authority  from  the  plaintiff  to  sell  said  wool  as  a  factor 
or  consignee,  but  said  wool  was  intrusted  by  the  plaintiff  to  Jones  as 
a  warehouseman,  for  the  purposes  of  sale,  and  with  authority  as  broker 
to  receive  offers  for  and  to  negotiate  sales  of  the  same,  to  be  reported 
to  and  settled  b}*  the  plaintiff,  in  whose  name  the  bills  of  sale  were 
made,  and  who  collected  the  price.  Jones,  as  such  broker,  showed  the 
wool  to  his  customers,  for  the  purpose  of  getting  offers  to  purchase  it ; 
and,  in  two  cases,  reported  to  the  plaintiff  offers  for  two  several  lots, 
which  were  accepted  by  the  plaintiff.  Jones  then  made  a  broker's 
memorandum  or  bonght-and-sold  note,  which  he  rendered  to  the  plain- 
tiff. The  plaintiff  then  ordered  the  wool  weighed,  and  sent  a  bill  of 
parcels,  with  a  certificate  of  weights,  to  the  buyer,  from  whom  he  re- 
ceived the  price,  or  a  negotiable  security  in  payment  thereof,  without 
previous  direct  communication  between  himself  and  the  buyer.  Jones 
received  a  broker's  commission  on  the  sales,  and  also  warehouse 
charges.  Jones  did  not  (before  the  transactions  with  the  defendant) 
sell  any  of  the  wool  in  his  own  name,  or  receive  the  proceeds  himself, 
as  a  consignee  or  factor  usualty  does,  and  had  no  authority  from  the 
plaintiff  to  dispose  of  the  wool  as  if  he  were  a  consignee  or  factor. 
Jones  entered  this  wool  in  the  books  in  which  he  kept  account  of  wool 
stored  by  him  as  a  warehouseman,  including  all  wools  consigned  to 
him  ;  and  also  entered  it  in  a  separate  book  under  head  of  "  Fessenden 
Joint  Account."  These  were  the  only  sales  of  this  wool  in  which 
Jones  took  any  part,  and  in  both  of  these  cases  Jones  consulted  the 
plaintiff  as  to  the  price. 

Jones,  while  said  wool,  with  other  wool  belonging  to  the  plaintiff 
and  for  which  the  plaintiff  held  his  receipts,  was  in  his  lofts,  applied 
to  the  defendant  at  various  times  for  loans  of  mone}'  upon  pledges  of 
different  parcels  of  wool,  of  which  he  produced  a  memorandum  and  of 
which  he  said  he  was  the  owner,  which  statements  were  afterwards 
incorporated  into  contracts  of  pledge  made  with  the  defendant.  The 
defendant  examined  samples  of  the  wool,  and  agreed  to  make  Jones 
loans  on  it,  upon  his  having  the  wool  put  in  store  in  the  lofts  of 
George  B.  Drake  &  Co.,  wool  commission  merchants,  whose  store  was 
next  to  that  of  Jones,  and  bringing  him  a  warehouse  receipt  therefor 
in  each  instance.  The  warehouse  receipts  were  signed  by  George  B. 
Drake  &  Co.  upon  printed  blanks  furnished  by  the  defendant.  At 
different  times,  from  July  27  to  Nov.  10,  1877,  Jones  pledged  to 
the  defendant  the  different  parcels  making  up  the  wool  in  controversy. 
The  defendant  acted  in  good  faith,  but  did  not  ask  Jones  to  exhibit 


SECT.  IV.]  #     T1IAGIIER   V.    MOORS.  577 

any  bill  of  sale,  or  bill  of  lading,  or  invoice,  or  other  document  of  title  ; 
nor  did  he  examine  Jones's  books,  or  see  any  document  of  title,  except 
the  warehouse  receipts  of  George  B.  Drake  &  Co.  The  defendant 
simply  asked  Jones  if  he  owned  the  wool,  and  Jones  replied  that  he 
did  ;  and  the  defendant  relied  upon  this  assurance  and  niton  Jones's 
possession. 

Neither  the  plaintiff  nor  the  defendant  had  seen  or  asked  to  see  any 
of  Jones's  books  until  after  he  absconded.  As  soon  as  the  defendant 
learned  that  Jones  had  absconded,  he  made  demand  under  his  con- 
tracts of  pledge,  sought  a  purchaser,  negotiated  a  sale  of  all  the  wool 
held  by  him  in  pledge  from  Jones,  including  the  wool  in  controversv, 
and  on  Nov.  22,  1877,  sold  the  same. 

Before  suit,  and  upon  the  day  of  the  date  of  the  writ,  the  plaintiff 
demanded  of  the  defendant  the  wool  in  controversy,  and  the  defendant 
refused  to  deliver  the  same. 

Upon  the  foregoing  facts,  the  judge  ruled,  as  matter  of  law.  as  fol- 
lows:  1.  The  plaintiff  had  a  right  to  consider  Fessenden  the  owner  of 
the  wool,  and  had,  under  the  Gen.  Sts.  c.  54,  §  1,  a  lien  upon  it  for 
his  advances.  2.  The  receipts  which  the  plaintiff  took  from  Jones, 
whether  they  are  in  the  usual  form  of  warehouse  receipts  or  not.  im- 
plied that  Jones  held  the  wool  for  the  plaintiff,  and  that  the  latter  had 
not  lost  his  lien  by  delivering  the  wool  to  Jones,  under  the  circum- 
stances stated.  3.  Under  the  Gen.  Sts.  c.  54,  §§  3,  4.  Jones  was 
neither  a  "person  intrusted  with"  the  disposal  of  the  wool,  "and 
having  authority  to  sell  or  consign  the  same,"  nor  "  a  consignee  or 
factor  having  possession  of ;'  the  wool  "  with  authority  to  sell  the 
same,"  "or  having  possession  of  a  bill  of  lading,  permit,  certificate, 
or  order  for  the  delivery  of"  the  wool  "  with  like  authority."  4.  Under 
the  Gen.  Sts.  c.  54,  §§  3,  5,  Jones  was  not  in  fact  invested  by  the 
plaintiff  with  the  jus  disponendi  of  the  wool.  He  had  no  authority 
from  the  plaintiff  to  sell  or  consign  the  same;  it  was  not  in  his  pos- 
session as  consignee  or  factor  having  authority  to  sell ;  and  he  had 
possession  of  no  bill  of  lading,  permit,  certificate,  or  order  for  the  de- 
livery of  the  wool  with  like  authority.  5.  As  the  defendant  knew  that 
Jones  was  a  wool-broker  and  warehouseman,  as  well  as  a  dealer  in 
wool  on  his  own  account  and  as  a  commission  merchant,  and  as  no  bill 
of  lading,  document,  or  writing  of  any  kind  in  relation  to  Jones's  title 
in  the  wool  had  been  called  for  or  exhibited,  the  mere  possession  of 
the  property,  and  the  oral  assertion  of  Jones  that  it  was  his.  would 
not,  as  matter  of  law.  furnish  or  amount  to  "  probable  cause,"  within 
the  meaning  of  the  statute;  and  it  was  the  defendant's  duty,  in  such 
a  slate  of  facts,  to  have  made  further  inquiry,  and  to  have  required 
further  evidence  of  Jones's  right  to  dispose  of  the  property.  6.  The 
defendant  was  guilty  of  a  conversion  of  the  wool  in  controversy  when 
the  different  parcels  thereof  were  received  by  him  in  pledge  from 
Jones;  or,  if  not  then,  upon  Nov.  22.  1877.  when  he  sold  the  wool; 
or,  if  not  then,  upon  Jan.  12,  1878,  the  date  of  the  plaintiff's  demand. 

37 


578  THACHEK   V.    MOORS.  [CHAP.  IV. 

The  judge  thereupon  found  for  the  plaintiff.  If,  upon  the  facts 
found  and  the  rulings,  or  any  of  them,  the  plaintiff  was  entitled  to  re- 
rover,  by  agreement  of  parties  the  case  was  to  be  sent  to  an  assessor 
to  determine  the  plaintiff's  damages,  according  to  the  rules  prescribed 
by  the  court,  and  judgment  entered  for  the  amount  of  damages  found 
by  such  assessor;  otherwise,  the  finding  to  be  set  aside  and  a  new 
trial  ordered. 

Field,  J.  It  is  convenient  to  consider  this  case,  in  the  first  in- 
stance, as  if  Jones  originally  had  no  interest  in  this  wool,  and  had 
none  at  an}'  time  except  what  he  derived  from  the  plaintiff,  and  then 
to  consider  what  is  the  effect  upon  the  rights  of  the  parties  of  the  facts, 
that  the  wool  was  originally  bought  by  Fessenden  "  upon  joint  account 
with  Jones,  under  an  arrangement  between  them,  by  which  Fessenden 
was  to  bivy  the  wool  of  the  farmers  in  Vermont,  and  Jones  was  to  find 
the  money  (either  furnishing  it  himself  or  procuring  some  one  else  to 
advance  upon  the  wool)  and  have  control  of  the  sale  of  it  in  Boston, 
and  the  profits  were  to  be  divided  between  them,"  and  that  Jones 
under  this  arrangement  procured  the  advances  to  be  made  by  the 
plaintiff,  and  furnished  other  money  of  his  own,  and  retained  his  inter- 
est in  the  wool  until  the  sale  of  it  by  the  defendant. 

Disregarding  then  this  interest  of  Jones,  the  plaintiff  was  the  con- 
signee of  the  wool  for  sale  on  account  of  Fessenden,  to  whom  he  had 
made  advances  ;  the  wool  had  been  shipped  to  him  for  sale,  and  rail- 
road receipts  and  invoices  sent  him  ;  the  wool  had  been  received,  and, 
by  the  plaintiffs  orders  to  the  railroad  company,  had  been  delivered  to 
a  truckman  and  stored  in  the  lofts  of  Jones. 

The  report  finds  that  "Jones  had  no  authority  from  the  plaintiff  to 
sell  said  wool  as  a  factor  or  consignee,  but  said  wool  was  intrusted  by 
the  plaintiff  to  Jones  as  a  warehouseman,  for  the  purposes  of  sale,  and 
with  authority  as  broker  to  receive  offers  for  and  to  negotiate  sales  of 
the  same,  to  be  reported  to  and  settled  by  the  plaintiff,  in  whose  name 
the  bills  of  sale  were  made,  and  who  collected  the  price. 

The  meaning  of  the  clause  that  the  wool  was  intrusted  by  the  plain- 
tiff to  Jones  as  a  warehouseman,  for  the  purposes  of  sale,  as  qualified 
by  the  words  which  follow,  and  other  words  of  the  report,  is  that  the 
wool  was  stored  with  Jones  in  order  that  it  might  be  sold,  and  that 
Jones  was  authorized  as  a  broker  to  negotiate  sales,  to  be  reported  to 
the  plaintiff,  the  terms  of  which  were  to  be  settled  by  him.  Jones  had 
no  express  authority  to  make  and  conclude  sales  himself,  and,  as  a 
warehouseman,  he  had  no  such  implied  authority.  He  was  not,  there- 
fore, either  a  "  factor  or  other  agent  intrusted  with  the  possession  of 
merchandise  for  the  purpose  of  sale,"  within  the  meaning  of  the  Gen. 
Sts.  c.  54,  §  2.  (And  this  section  does  not  give  validity  to  a  pledge. 
.Michigan  State  Bank  v.  Gardner,  15  Gray,  3G2.)  Nor  was  he  "a 
person  intrusted  with  merchandise,  and  having  authority  to  sell  or 
consign  the  same,"  within  the  meaning  of  the  Gen.  Sts.  c.  54,  §  3. 
In  these  sections  the  words  "  for  the  purpose  of  sale,"  and  the  words 


SECT.  IV.]  THACHEE   V.    MOORS.  570 

"  having  authority  to  sell,"  mean  much  the  same  thing;  which  is,  that 
in  the  one  case  the  factor  or  other  agent  is  intrusted  with  the  posses- 
sion of  the  merchandise  "  for  the  purpose  of  sale"  by  him,  so  that  he 
can  himself  make  a  sale  and  transfer  the  title  to  the  merchandise  ;  and, 
in  the  other,  that  the  person  intrusted  with  the  merchandise  has,  as  a 
person  so  intrusted,  authority  given  hiin  to  sell  or  consign  it.  The 
same  construction  must  he  given  to  similar  words  in  §  4.  See  Stollen- 
werck  v.  Thacher,  115  Mass.  224;  Nickerson  v.  Darrow,  5  Allen,  410. 

A  warehouseman  who  is  also  a  broker,  with  authority  only  to  receive 
offers  for  merchandise  stored  with  him  as  warehouseman,  and  report 
them  to  his  principal,  who  concludes  the  sale,  if  any  is  made,  is  not 
within  the  provisions  of  either  of  these  sections.  The  pledge  of  this 
wool  to  the  defendant,  therefore,  is  not  protected  by  the  statute  ;  and 
the  facts  show  that  it  was  made  by  Jones  without  any  authority  from 
the  plaintiff,  and  without  any  acts  done  by  the  plaintiff  whereby  the 
defendant  was  misled  into  the  belief  that  Jones  had  any  such  authoritv. 
whether  as  owner  or  otherwise.  The  fact  that  he  found  the  wool  in 
the  store  of  Jones,  which  he  knew  was  used  by  Jones  "  to  store  wool 
as  a  warehouseman  for  other  persons,  and  also  wool  belonging  or  con- 
signed to  himself,"  does  not  bring  the  case  within  the  decisions  upon 
ostensible  or  apparent  ownership.  Neither  the  railroad  receipt  nor  the 
invoice  was  delivered  by  the  plaintiff  to  Jones,  but  both  were  retained 
by  the  plaintiff;  and  Jones,  so  far  as  it  appeared  to  the  defendant, 
was  no  more  the  ostensible  owner  of  this  wool  than  of  an}-  other  wool 
stored  with  him  as  warehouseman.  The  assertion  of  Jones  that  he 
owned  the  wool  was  incompetent,  as  evidence  of  ownership,  against  the 
plaintiff,  and  could  not  enlarge  his  authority  as  agent.  Mussev  v. 
Beecher,  3  Cush.  511  ;  Stollenwerck  v.  Thacher,  siq>r<>. 

There  remains  to  be  considered  the  effect  upon  the  rights  of  the 
parties  of  the  interest  which  Jones  had  in  the  wool.  It  is  perhaps  not 
important  to  determine  exactly  the  respective  rights  of  Fessenden  and 
Jones  under  their  agreement;  but  we  assume  that  Fessenden  and 
Jones  were  partners  in  this  adventure,  with  the  right  in  Jones  as 
against  his  co-partner  of  controlling  the  sale  of  the  avooI  in  Boston  ; 
and.  for  the  purpose  of  considering  the  principal  questions  in  this  case, 
we  shall  treat  Jones  as  the  general  owner. 

It  is  argued  that,  as  Jones  was  the  general  owner,  and  had  all  the 
rights  of  an  owner  to  sell  or  pledge  the  wool,  the  lien  of  the  plaintiff 
was  lost  by  the  plaintiff's  delivering  possession  of  it  to  Jones  in  the 
manner  and  under  the  circumstances  which  have  been  stated  in  the 
report.  Whatever  the  authority  of  Fessenden,  under  his  agreement 
with  Jones,  may  have  been  to  consign  the  wool  to  the  plaintiff,  it  is 
plain  that,  if  the  plaintiff  had  retained  possession  of  the  wool,  he 
would  have  had  a  valid  lien  upon  it  for  his  advances  against  Jones, 
botli  by  virtue  of  the  Gen.  Sts.  c.  54,  §  1.  and  by  the  general  principles 
of  law.  because  Jones  had  procured  the  consignment  to  be  made  to 
the  plaintiff,  and  by  his  acts  was  estopped  from  setting  up,  against  the 


580  THACHER   V.    MOORS.  [CHAP.  IV. 

plaintiff,  any  title  to  the  wool  inconsistent  with  the  validity  of  the  lien 
acquired  by  the  plaintiff  as  consignee.  The  interest  of  the  plaintiff  in 
this  merchandise  was  that  of  a  consignee  for  sale  who  had  made  ad- 
vances upon  it,  and  his  rights  and  duties  in  most  respects  are  well 
defined  in  the  law.  The  possession  of  a  warehouseman,  although  he 
has  a  lien  for  his  charges,  is  not  inconsistent  with  the  possession  of  the 
consignee,  and  it  is  in  accordance  with  the  usage  of  commission  mer- 
chants to  store  merchandise  consigned  to  them  in  warehouses.  A 
consignee's  rights  in  the  merchandise  are  not  lost  by  putting  the  mer- 
chandise in  the  warehouse  of  another  person,  to  be  stored  until  it  can 
be  sold.  The  plaintiff  never  intended  to  relinquish  his  lien,  or  even  to 
put  the  property  into  the  possession  of  the  owner ;  but  it  is  argued 
that,  as  he  did  intend  to  put  it  into  the  possession  of  Jones,  who  was 
the  owner,  although  the  plaintiff  did  not  know  it,  this  union  of  posses- 
sion and  general  property  in  Jones  enabled  him  to  convey  a  good  title 
to  an  innocent  pledgee  for  value.  No  decided  case  has  gone  so  far.  as 
this.  It  has  not  even  been  decided  in  this  Commonwealth,  that,  if  the 
plaintiff  had  known  that  Jones  was  the  owner  of  the  merchandise,  the 
deposit  of  it  in  good  faith  with  him  as  a  warehouseman,  with  authority 
to  negotiate  sales  as  a  broker,  to  be  concluded  by  the  plaintiff,  would 
have  enabled  Jones  to  vest  a  good  title  in  an  innocent  purchaser  by  a 
sale  made  by  him  on  his  own  account.  Macomber  v.  Parker,  14  Pick. 
497.  Walker  v.  Staples,  5  Allen,  34.  Thayer  v.  Dwight,  104  Mass. 
254.  See  Casey  v.  Cavaroc,  96  U.  S.  467;  Clark  v.  Iselin,  21  Wall. 
360;  Thompson  v.  Dolliver,  132  Mass.  103. 

In  this  Commonwealth,  although  a  sale  of  personal  chattels  is  not 
valid  against  a  subsequent  purchaser,  without  delivery,  yet,  if  there 
has  been  a  delivery,  possession  by  the  vendor  is  only  evidence  of 
fraud,  and  the  sale  is  not  void  against  a  subsequent  purchaser,  unless 
fraud  in  fact  is  proved.  Zuchtmann  v.  Roberts,  109  Mass.  53  ;  Ingalls 
r.  Herrick,  108  Mass.  351;  Thorndike  v.  Bath,  114  Mass.  116; 
Dempsey  v.  Gardner,   127  Mass.  381. 

In  conditional  sales,  possession  by  the  vendee  does  not  enable  him 
to  convey  a  good  title  to  a  purchaser.  The  cases  here  and  elsewhere 
are  numerous  where  the  pledgee  has  lost  his  lien  by  delivering  the 
pledge  to  his  pledgor,  to  be  used  by  him  or  to  be  held  by  him  for  his 
own  use,  or  to  be  held  by  him  with  a  right  to  substitute  other  property 
for  that  originally  pledged;  but  possession  obtained  by  the  pledgor 
by  force  or  fraud  has  never  yet  been  held  to  destroy  the  lien  of  the 
pledgee,  unless  the  delivery,  although  fraudulently  obtained,  was  with 
the  intention  on  the  part  of  the  pledgee  that  the  pledgor  might  treat 
the  pledge  as  his  own  property.  The  mere  fact  that  the  pledgor  has 
possession,  so  that  in  him  the  possession  and  the  general  ownership 
are  united,  does  not,  as  matter  of  law,  destroy  the  lien  of  the  pledgee, 
without  regard  to  the  circumstances  under  which,  or  the  purpose  for 
which,  the  possession  was  obtained.  Macomber  v.  Parker,  supra  : 
WakoU  v.  Keith,  2  Foster,  196.     To  hold  that  the  union  of  possession 


SECT.  IV.]  TIIACHER   V.    MO  ■: 

and  general  property  in  the  same  person,  however  acquired,  necessarily 
destroj'S  the  special  property  of  :i  consignee  of  merchandise,  would 
enable  warehousemen,  who  hold  merchandise  in  store  for  commission 
merchants,  to  buy  in  the  title  of  their  consignors,  and  thus  obtain  full 
control  over  the  disposition  of  the  merchandise  stored,  without  the 
authority  or  knowledge  of  the  consignee-. 

In  all  the  eases  eited  by  the  defendant  iii  which  it  has  been  held  that 
the  lien  of  a  pledgee  was  lost,  the  property  pledged  had  been  delivered 
to  the  pledgor  by  the  pledgee,  knowing  him  to  be  the  pledgor,  and  tin: 
pledgor  had  been  authorized  to  hold  the  property,  or  to  make  some 
use  or  disposition  of  it  for  his  own  benefit  in  a  manner  inconsistent 
with  keeping  it  solely  as  agent,  and  for  the  benefit,  of  the  pled, 
except  the  case  of  Geddes  v.  Bennett,  6  La.  An.  516,  and  there  the 
circumstances  were  such  as  in  the  opinion  of  the  court  to  estop  the 
plaintiffs  from  claiming  their  lien,  even  if  they  had  one,  which  it  seem- 
they  had  not  as  against  third  persons,  because  the  provisions  of  the 
Code  of  Louisiana  had  not  been  complied  with. 

But  it  is  unnecessary  to  consider  what  would  be  the  result,  if  the 
interest  which  Jones  had  in  the  merchandise  had  been  known  to  the 
plaintiff.  The  want  of  such  knowledge  is  decisive.  The  plaintiff  can- 
not be  held  to  have  intended  that  Jones  should  exercise  any  of  the 
lights  of  ownership  over  the  merchandise  on  account  of  his  delivery  of 
it  to  him,  because  he  did  not  know  that  Jones  w-as  an  owner,  and  it 
was  not  a  consequence  naturally  to  be  expected  from  delivering  the 
merchandise  to  him  to  be  stored  that  it  would  come  into  the  possession 
of  the  general  owner;  and  in  no  legal  sense  can  the  plaintiff  be  said  to 
have  voluntarily  delivered  the  merchandise  into  the  hands  of  the  gen- 
eral owner.  In  the  absence  of  any  act  or  conduct  which,  in  law.  pie- 
vents  a  consignee  of  merchandise  for  sale  from  setting  up  his  rights  of 
property  by  reason  of  an  apparent  ownership  or  authority  to  sell  which 
he  has  conferred  upon  another,  those  rights  are  lost  only  by  his  dealing 
with  the  merchandise  in  a  manner  inconsistent  with  the  bailment,  or 
inconsistent  with  his  possession  and  preservation  of  the  merchandise 
solely  for  the  purpose  of  sale  under  the  consignment,  or  by  dealing 
with  it  in  such  a  manner  that  an  intention  to  abandon  or  relinquish  his 
rights  can  be  inferred. 

In  this  case  there  has  been  no  such  dealing  with  the  merchandise, 
and  no  such  intention  can  be  inferred.  The  right  which  Jones  had  as 
owner  to  sell  his  interest  in  the  property,  subject  to  the  right  of  the 
plaintiff,  is  not  an  authority  to  sell  within  the  meaning  of  the  Gen.  S;s. 
e.  ."if.  That  chapter  has  no  reference  to  the  right  of  an  owner  of  mer- 
chandise to  sell  as  owner,  hut  to  the  authority  to  sell  given  to  con- 
signees, factors,  agents,  or  other  persons  intrusted  with  the  possession 
of  merchandise.  See  Jenkvns  v.  Usborne,  7  Man.  &  G.  678;  Fuentes 
v.  Montis,  L.  R.  3  C.  P.  268,  and  L.  R.  1  C.  P.  93. 

The  rulings  of  the  justice  before  whom  this  ease  was  tried  were 
therefore  correct;    and   the  defendant   has   converted  the   wool   t>   his 


582  NEW    YORK   LAWS.  [CHAP.  IV. 

own  use.  It  was  a  conversion  when  the  wool  was  taken  from  the 
possession  of  Jones  by  order  of  the  defendant,  under  a  claim  of  a  right 
of  property  in  it,  and  was  stored  with  Drake  and  Company,  subject, 
and  deliverable  only,  to  the  order  of  the  defendant.  Stanley  y.  Gay- 
lord,  1  Cush.  536;  Moody  v.  Blake,  117  Mass.  23  ;  Bearce  v.  Bowker, 
115  Mass.  129. 

The  justice  before  whom  the  case  was  tried  found  for  the  plaintiff, 
and  reported  the  case  to  the  full  court,  with  the  statement  that.  kk  if 
the  plaintiff  was  entitled  to  recover,  by  agreement  of  parties,  the  case 
was  to  be  sent  to  an  assessor  to  determine  the  plaintiffs  damages, 
according  to  the  rules  prescribed  by  the  court."  The  ordinary  rule  of 
damages  is  the  market  value  of  the  property  at  the  time  of  the  conver- 
sion, with  interest  from  that  time,  and  a  consignee  of  merchandise  is 
entitled  to  recover  full  damages,  and  is  responsible  over  to  his  con- 
signor for  any  balance  remaining  after  satisfying  his  claims  upon  the 
property.     Ullman  v.  Barnard,  7  Gray,  554. 

Whether  the  amount  of  the  damages,  thus  estimated,  is  greater  than 
the  amount  of  the  money  for  which  the  plaintiff  had  a  lien  on  the  prop- 
erty, the  report  does  not  show  ;  and,  if  so,  whether  the  defendant  has 
so  far  succeeded  to  the  rights  of  the  owners  that  he  is  entitled  to  retain 
or  deduct  from  these  damages  the  surplus  which  remains  after  satis- 
fying the  claims  of  the  plaintiff,  the  report  does  not  enable  us  accu- 
rately to  determine.  See  Chamberlin  v .  Shaw,  18  Pick.  278,  283  ; 
Spoor  v.  Holland,  8  Wend.  445  ;  Jngersoll  v.  Van  Bokkelin,  7 
Cow.  G70. 

In  accordance  with  the  terms  of  the  report,  an  assessor  must  be  ap- 
pointed to  assess  damages  as  of  the  full  value  of  the  property  ;  but,  if 
desired  by  the  defendant,  he  may  have  authority,  as  auditor,  to  hear 
and  report  any  facts,  in  addition  to  those  found  in  this  report,  bearing 
upon  the  right  of  the  defendant  to  retain  the  surplus,  if  any,  remaining 
after  satisfying  the  claims  of  the  plaintiff  upon  the  property. 

Ordered  accordingly.1 


NEW   YORK   LAWS   OF   1830,   Cap.   179. 

Section  1.  After  this  Act  shall  take  effect,  every  person  in  whose  name  any  mer- 
chandise shall  he  shipped,  shall  be  deemed  the  true  owner  thereof,  so  far  as  to  entitle 
the  consignee  of  such  merchandise  to  a  lien  thereon,  (1)  for  any  money  advanced,  or 
negotiable  security  given  by  such  consignee,  to  or  for  the  use  of  the  person  in  whose 
name  such  shipment  shall  have  been  made  ;    and    (2)  for  any  money  or  negotiable 

irity  receiveil  by  the  person  in  whose  name  such  shipment  shall  have  been  made,  to 
or  for  the  use  of  such  consignee. 

Sect.  2.     The  lien  provided  for  in  the  preceding  section  shall  not  exist  where  such 

1  In  Goodwin  /■.  Massachusetts  Loan  and  Trust  Company,  152  Mass.  189,  a  pledge 
by  a  factor  was  held  valid  only  to  the  extent  of  the  factor's  advances  to  his  principal, 
because  the  pledgee  had  not  "probable  cause  to  believe  that  the  agent  .  .  .  had 
authority." 


SECT.  IV.]  STEVENS  V.    WILSON.  583 

consignee  shall  have  notice  by  the  bill  of  lading  or  otherwise,  at  or  before  the  advancing 
of  any  money  or  security  by  the  person  in  whose  name  the  shipment  shall  have  been 
made,  that  such  person  is  not  the  actual  and  bona  fide  owner  thereof. 

Sect.  3.  Every  factor  or  other  agent,  intrusted  with  the  possession  of  any  hill  of 
lading,  custom  hi  use  permit,  or  warehouse-keeper's  receipt  for  the  delivery  of  any  such 
merchandise,  and  every  such  factor  or  agent  not  having  the  documentary  evidence  of 
title,  who  shall  be  intrusted  with  the  possession  of  any  merchandise  for  the  purpose  of 
sale,  or  as  a  security  for  any  advances  to  be  made  or  obtained  thereon,  shall  be  deemed 
to  be  the  true  owner  thereof,  so  far  as  to  give  validity  to  any  contract  made  by  such 
agent,  with  any  other  person,  for  the  sale  or  disposition  of  thewholeor  any  part  of  such 
merchandise,  for  any  money  advanced,  or  negotiable  instrument  or  other  obligation  iu 
writing  given  by  such  other  person  upon  the  faith  thereof. 

Ski  i.  4.  Every  person  who  shall  hereafter  accept  or  take  any  such  merchandise  in 
deposit  from  any  such  agent,  as  a  security  for  any  antecedent  debt  or  demand,  shall  not 
acquire  thereby,  or  enforce  any  right  or  interest  in  or  to  such  merchandise  or  docu- 
ment, other  than  was  possessed  or  might  have  been  enforced  by  such  agent  at  the  time 
of  such  deposit. 

Sect.  5.  Nothing  contained  in  the  two  last  preceding  sections  of  this  Act  shall  be 
construed  to  prevent  the  true  owner  of  any  merchandise  so  deposited  from  demanding 
or  receiving  the  same,  upon  repayment  of  the  money  advanced,  or  on  restoration  of  the 
security  given,  on  the  deposit  of  such  merchandise,  and  upon  satisfying  such  lien  as 
may  exist  thereon  in  favor  of  the  agent  who  may  have  deposited  the  same;  nor  from 
recovering  any  balance  which  may  remain  in  the  hands  of  the  person  with  whom  such 
merchandise  shall  have  been  deposited,  as  the  produce  of  the  sale  thereof,  after  satis- 
fying the  amount  justly  due  to  such  person  by  reason  of  such  deposit. 

Sect.  6.  Nothing  contained  in  this  Act  shall  authorize  a  common  carrier,  ware- 
house-keeper, or  other  person  to  whom  merchandise  or  other  property  may  be  committed 
for  transportation  or  storage  only,  to  sell  or  hypothecate  the  same. 

Skct.  8.  Nothing  contained  in  the  last  preceding  section  shall  be  construed  to  pre- 
vent the  Court  of  Chancery  from  compelling  discovery,  or  granting  relief  upon  any 
bill  to  be  filed  in  that  court  by  the  owner  of  any  merchandise  so  intrusted  or  consigned, 
against  the  factor  or  agent  by  whom  such  merchandise  shall  have  been  applied  or  sold 
contrary  to  the  provisions  of  the  said  section,  or  against  any  person  who  shall  have 
been  knowingly  a  party  to  such  fraudulent  application  or  sale  thereof;  but  no  answer 
to  any  such  bill  shall  be  read  in  evidence  against  the  defendant  making  the  same,  on 
the  trial  of  any  indictment  for  the  fraud  charged  in  the  bill. 


STEVENS   v.   WILSON   and   Others. 
New  York  Court  of  Errors,  December,  1846. 

[Reported  in  3  Denia,  472.] 

On  error  from  the  Supreme  Court  Wilson  and  the  other  defendants 
in  error  brought  replevin  against  Stevens,  in  the  Superior  Court  of  the 
city  of  New  York,  for  a  quantity  of  feathers.  Verdict  and  judgment  for 
the  plaintiffs ;  which  judgment  was  affirmed  on  error  in  the  Supreme 
Court.  For  a  statement  of  the  facts  and  the  opinion  of  the  court,  see 
G  Hill,  512.  The  question  in  the  case  was,  whether  the  defendant,  who 
had  made  advances  upon  the  feathers  to  one  Colgate,  the  plaintiffs'  fac- 
tor, willi  knowledge  that  he  was  not  the  owner  of  the  property,  was  en- 
titled to  hold  it  for  such  advances. 


5  34  STEVENS   V.    WILSON.  [CHAP.  IV. 

A.  Crist,  for  the  plaintiff  in  error. 

jS.  A.  Foot,  for  the  defendants  in  error. 

The  Chancellor.  Upon  the  charge  of  the  judge  the  jury  must  have 
decided  that  the  goods  did  not  belong  to  Colgate,  the  factor  or  agent  of 
the  defendants  in  error,  but  were  in  his  hands  for  sale  as  the  factor  of 
the  real  owners.  And  I  think  the  judge  who  tried  the  cause,  as  well 
as  the  Supreme  Court,  was  right  in  supposing  that  the  Act  of  1830,  for 
the  amendment  of  the  law  relative  to  principals  and  factors  or  agents 
(  1  U.  S.  762,  tit.  5  of  2d  ed.),  does  not  authorize  the  agent  or  factor  for 
the  purposes  of  sale,  to  pledge  the  goods  to  a  person  who  knows  the 
character  in  which  the  pledgor  holds  the  same.  Mr.  Justice  Bronson, 
who  delivered  the  opinion  of  the  Supreme  Court  in  this  case,  has  cor- 
rectly stated  the  rule  of  the  common  law,  that  an  agent  or  factor,  in- 
trusted with  the  goods  of  his  principal  to  sell,  could  not  pledge  the  same 
so  as  to  authorize  the  pledgee  to  hold  them  for  advances  made  thereon 
to  the  factor  or  agent,  even  if  he  supposed  the  latter  to  be  the  real  owner 
of  the  goods.  Paterson  v.  Tash,  2  Strange,  1178  ;  Daubigny  v.  Duval, 
5  T.  R.  604.  Even  where  the  principal  had  drawn  upon  the  factor  in 
anticipation  of  the  sale  of  the  goods,  it  .was  held  in  the  cases  of  Field- 
ing v.  Kymer,  2  Brod.  &  Bmg.  631),  and  Graham  v.  Dyster,  6  Maule  & 
Sel.  1,  that  the  factor  was  not  authorized  to  pledge  the  goods.  In  this 
last  case,  Mr.  Justice  Abbott,  afterwards  Lord  Chief  Justice  Tenterden, 
said  it  had  been  established  by  many  decisions,  and  might  be  consid- 
ered as  a  settled  principle  of  law,  that  a  factor  could  not  pledge  so  as 
to  transfer  his  lien  to  the  pawnee.  This  rule  of  the  common  law  was 
founded  upon  the  principle  that  he  who  deals  with  one  acting  ex  win- 
(I/to,  can  obtain  from  him  no  better  or  different  title  than  that  which 
his  mandate  authorizes  him  to  give. 

The  Statute  4  Geo.  4,  eh.  83,  passed  in  July,  1823,  altered  the  com- 
mon-law rule  in  England  in  this  respect,  as  to  persons  dealing  with  the 
consignees  of  factors  intrusted  with  goods  for  the  purpose  of  sale,  so 
far  as  to  protect  the  rights  of  the  pledgee  to  the  extent  of  the  advances 
he  had  made,  or  the  liabilities  he  had  incurred,  upon  the  faith  of  the 
pledge  and  the  supposition  that  the  nominal  consignor,  the  factor,  was 
the  owner  of  the  goods.  But  this  statute  contained  an  express  exception 
of  cases  where  the  consignee  was  aware  of  the  fact  that  the  nominal 
consignor  was  not  the  real  owner  of  the  goods.  It  also  contained  a 
provision  that  the  deposit  or  pledge  of  goods  by  the  consignee  thereof 
should  give  to  the  person  with  whom  they  were  deposited  or  pledged  the 
same  right,  and  no  other,  that  the  consignee  himself  possessed.  The 
provisions  of  that  act  appear  to  have  been  confined  to  consignees  of 
goods,  and  persons  dealing  with  them,  where  the  consignees  supposed 
the  consignors  were  the  real  owners  of  such  goods,  when  in  fact  such  con- 
signors had  only  been  intrusted  with  the  goods  for  the  purpose  of  sale. 
The  first  section  of  the  Act  of  6  Geo.  4,  eh.  94,  passed  about  two  years 
afterwards,  contained  but  a  very  slight,  modification  of  the  previous  act, 
so  as  to  protect  the  consignee  without  notice,  and  others  dealing  with 


SECT.  IV.]  STEVENS    V.    WILSON.  585 

him,  before  they  had  notice  that  the  person  in  whose  name  goods  were 
shipped,  with  the  assent  of  the  owner,  was  not  himself  the  real  owner. 
But  the  second  section  of  that  act  extended  the  protection  to  persons 
dealing  with  an  agent  or  factor  who  had  in  his  possession  documentary 
evidence  showing  him  prima  facie  to  be  the  owner  of  the  goods,  and 
where  the  persons  so  dealing  with  him  were  ignorant  of  his  fiduciary 
character,  and  had  bought  the  goods  or  advanced  money  or  negotiable 
securities  upon  the  deposit  or  pledge  of  the  goods  and  upon  the  faith  ot 
such  prima  facie  evidence  of  ownership.  The  third  section  declared 
that  persons  taking  such  goods  in  deposit  or  pledge  for  an  antecedent 
debt,  even  without  notice  of  the  fiduciary  character  of  the  agent  or  fac- 
tor having  in  his  possession  such  prima  facie  evidence  of  ownership, 
should  acquire  no  other  right  or  interest  therein,  as  against  the  owner, 
than  the  agent  or  factor  himself  possessed  ;  but  might  acquire,  possess, 
and  enforce  the  right  to  that  extent.  And  the  fifth  section  expressly 
authorized  the  taking  of  such  goods  in  pledge  from  the  agent,  or  broker, 
having  such  prima  facie  evidence  of  title,  even  with  notice  of  his  fidu- 
ciary character ;  but  the  pledgee  was  only  to  obtain  such  right  or  inter- 
est therein  as  the  pledgor  himself  possessed. 

Our  Act  relative  to  principals  and  factors  or  agents,  in  the  first  and 
second  sections,  protects  consignees  of  merchandise  shipped  in  the  name 
of  a  person  who  is  not  the  real  owner,  where  the}'  are  ignorant  of  the 
fact  that  such  consignor  is  not  the  owner.  The  third  section  then  pro- 
vides that  "  Every  factor  or  other  agent  intrusted  with  the  possession  of 
any  bill  of  lading,  custom-house  permit,  or  warehouse-keeper's  receipt 
for  the  delivery  of  any  such  merchandise,  and  eveiy  such  factor  or  agent, 
not  having  the  documentary  evidence  of  title,  who  shall  be  intrusted 
with  the  possession  of  any  merchandise  for  the  purposes  of  sale,  or  as  a 
security  for  any  advances  to  be  made  or  obtained  thereon,  shall  be  deemed 
to  be  the  true  owner  thereof,  so  far  as  to  give  validity  to  any  contract 
made  by  such  agent  with  any  other  person  for  the  sale  or  disposition  of 
the  whole  or  any  part  of  such  merchandise,  for  any  money  advanced,  or 
negotiable  instrument  or  other  obligation  in  writing  given  by  such  other 
person  upon  the  faith  thereof."  1  R.  S.  7G2,  tit.  5,  §  3,  of  2d  ed.  It  is 
perfectly  evident  from  the  whole  of  this  section,  taken  in  connection 
with  the  second  section  and  the  previous  law  upon  the  subject,  that  the 
words  "on  the  faith  thereof"  refer  to  the  ownership  of  the  goods;  so 
as  to  protect  the  purchaser,  or  pledgee,  who  has  advanced  his  money  or 
given  his  negotiable  note  or  acceptance  or  other  written  obligation,  upon 
the  faith  or  belief  of  the  fact  that  the  person  with  whom  he  dealt  was 
the  real  owner  of  the  property.  Any  other  construction  of  the  statute 
would  do  great  injustice  to  the  legislature  who  passed  the  Act  of  1830. 
For  it  would  authorize  the  agent  or  factor  to  commit  a  fraud  upon  his 
principal,  with  the  connivance  of  the  purchaser  or  pledgee  who  had  no- 
tice of  the  fiduciary  character  of  the  vendor  or  pledgor.  It  would  also 
be  in  direct  conflict  with  the  seventh  section  of  the  same  statute,  which 
makes  such  a  fraud  an  indictable  olfence,  not  only  against  the  agent  or 


5S6  COLLINS   V.    RALLL  [CHAP.  IV. 

factor,  but  also  against  every  person  who  shall  knowingly  connive  with 
or  aid  him  in  the  commission  of  the  fraud. 

Our  statute  does  not,  as  in  the  fifth  section  of  the  6  Geo.  4,  ch.  94, 
authorize  the  agent  or  factor  to  pledge  the  goods  of  his  principal  to  the 
extent  of  his  lien,  to  persons  who  are  aware  of  his  fiduciary  character 
and  without  any  authority  for  that  purpose  from  his  principal.  But  even 
under  the  British  statute  it  has  been  held  that  a  mere  liability  of  the 
agent  or  factor,  upon  acceptances  for  his  principal,  is  not  sufficient  to 
give  such  agent  or  factor  a  lien  which  will  authorize  him  to  pledge  the 
goods  to  a  third  person  without  the  consent  of  his  principal.  In  Fletcher 
v.  Heath,  7  Barn.  &  Cress.  517,  and  Blandy  v.  Allan,  Danson  &  Lloyd's 
Merc.  Cas.  22,  the  factor  was  under  acceptances  for  his  principal  at  the 
time  he  pledged  the  goods  for  advances  thereon,  but  which  acceptances 
the  principal  afterwards  duly  paid  or  provided  for.  And  it  was  held 
that  the  pledgee  could  not  hold  the  goods  to  the  amount  of  the  accept- 
ances for  which  the  factor  was  liable  at  the  time  the  goods  were  pledged, 
but  which  he  was  not  afterwards  compelled  to  pay. 

Here  the  judge  who  tried  the  cause  not  only  gave  to  the  defendant  in 
the  court  below  all  his  legal  rights,  but  protected  him  so  far  as  any 
equity  existed  as  between  the  factor  and  his  principals,  if  not  much 
further.  I  therefore  think  the  judgment  of  the  Supreme  Court  should 
be  affirmed.  Judgment  affirmed.1 


JOHN  COLLINS,  Respondent  v.  STEPHEN  RALLI  and  Others, 

Appellants. 

New  York  Supreme  Court,  February  Term,  1880. 
[Reported  in  20  Hun,  246.] 

Appeal  from  a  judgment  for  the  plaintiff,  entered  upon  a  referee's 
report. 

The  referee  found  that  on  Dec.  28,  1877,  Henry  M.  Cutter,  a  mem- 
ber of  the  firm  of  H.  M.  Cutter  &  Co.,  cotton-brokers,  called  upon  the 
plaintiff  and  by  falsely  and  fraudulently  representing  that  he  was  author- 
ized to  buy  cotton  for  the  Freeman  Manufacturing  Company  of  North 
Adams,  Massachusetts,  induced  the  plaintiff  to  sell  100  bales  of  cotton 
to  that  company.  By  representing  that  he  desired  to  ship  the  cotton 
immediately,  Cutter  procured  from  the  plaintiff  a  delivery  order  upon 
the  warehousemen  who  were  storing  the  cotton.  At  their  warehouse 
Cutter  had  the  cotton  weighed  and  marked  and  loaded  upon  a  truck; 
tags,  with  the  name  and  address  of  the  mills,  being  fastened  to  each 
bale.  Cutter  stored  the  cotton  in  another  warehouse,  some  of  the  bales 
at  that  time  still  having  the  tags  upon   them,  and  took  out  receipts 

1  The  concurring  opinion  of  Senator  Lott  and  the  dissenting  opinion  of  Senator 
Johnson  are  omitted. 


SECT.  IV.]  COLLINS    V.    EALLL  587 

therefor  from  the  keeper  of  sneh  warehouse  in  his  own  name  first,  and 
afterwards  in  the  name  of  his  brokers.  All  the  tags  were  removed  from 
the  bales  while  in  this  latter  warehouse.  Thereafter  the  defendants 
purchased  the  cotton  in  good  faith  and  for  value  through  their  brokers, 
receiving  the  warehouseman's  receipts  therefor,  and  subsequently 
shipped   it  to   Liverpool. 

That  plaintiff  was  guilty  of  no  negligence,  in  any  of  the  transac- 
tions above  stated,  but  in  all  respects  exercised  due  care  and  caution 
therein,  and  all  his  acts  in  respect  thereto  were  in  the  usual  and  ordi- 
nary course  of  business  of  selling  cotton  to  spinners  through  the  medium 
of  a  broker. 

That  plaintiff  parted  with  the  custody  of  said  cotton  to  said  II.  M. 
Cutter  &  Co.  for  the  sole  purpose  of  having  the  same  shipped  and  de- 
livered to  the  pretended  purchasers.1 
Coudert  Brothers,  for  the  appellants. 
Freling  II  Smith,  for  the  respondent. 

Pratt,  J.  The  facts  in  this  case  clearly  show  that  Cutter  &  Co.  were 
guilty  of  larceny  in  obtaining  the  temporary  custody  of,  and  appropri- 
ating to  their  own  use  the  cotton  in  question  in  this  action.  They  had, 
by  false  and  fraudulent  statements,  induced  the  plaintiffs  to  believe 
that  they  represented  and  were  authorized  to  purchase  this  cotton  for 
certain  manufacturing  companies,  and  relying  upon  their  representation, 
the  plaintiff  sold  the  same  to  these  manufacturing  companies  as  he  sup- 
posed through  Cutter  &  Co.,  as  brokers,  and  so  they  were  allowed  to 
put  the  cotton  aboard  their  trucks  after  it  had  been  tagged  and  ad- 
dressed to  the  supposed  purchasers  for  conveyance  to  the  depot  for 
shipment. 

This  was  done  in  pursuance  of  the  usual  custom  obtaining  in  re- 
spect to  shipment  of  goods  purchased  by  manufacturing  companies 
through  brokers. 

In  such  cases  it  appears  the  dealer  allows  the  broker  to  cart  the  goods 
for  shipment.  The  possession  of  Cutter  &  Co.  was  therefore  temporary, 
and  given  to  them  for  a  specific  purpose,  and  they  procured  such  pos- 
session fraudulently  and  with  the  purpose  and  design  of  converting  the 
goods  to  their  own  use.     The  evidence,  which  is  undisputed,  shows  this 

conclusively. 

The  case  is  therefore  brought  directly  within  the  definition  of  larceny 
given  in  Loomis  v.  The  People,  G7  N.  Y.  322  ;  and  also  2  R.  S.,  p  G79, 
§  63  :  Smith  v.  The  People,  53  N.  Y.  113  ;  Bassett  v.  Spofford.  45  id. 
391  ;  Zink  v.  The  People.  6  Abb.  N.  C.  413  ;   2  East's  P.  C.  681,  693. 

The  defendants  rely  upon  Rex  o.  Atkinson.  2  East's  P.  C.  673,  as  an 
authority  in  opposition  to  these  views  ;  but  in  that  case  the  offence 
charged  was  held  not  to  be  a  felony  simply,  as  it  came  within  the  stat- 
ute of  33  H.  8th  Ch.  1,  against  obtaining  goods  by  false  tokens  or 
counterfeit  letters,  and  was  therefore  punishable  as  a  misdemeanor  only 
(East  P.  C.  G87).  Whether  or  not  Cutter  &  Co.  were  guilty  of  larceny, 
i  The  statement  of  facts  has  beeu  abbreviated. 


588  COLLINS    V.    KALLI.  [CHAP.  IV. 

however,  is  important  in  the  determination  of  the  case  only  upon 
the  question  of  estoppel,  for  it  cannot  well  be  claimed  that  an  owner 
has  conferred  upon  the  thief  indicia  of  title  to  his  stolen  goods,  or  that 
he  cannot  reclaim  them  because  of  any  negligence  charged.  Bassett 
v.  Spofford,  supra. 

Whatever  may  be  the  grade  of  the  offence  of  Cutter  &  Co.  in  de- 
frauding; plaintiff  of  his  goods,  they  could  convey  no  title  to  them  even 
to  an  innocent  purchaser  for  value  unless  plaintiff  committed,  or 
omitted  some  act  in  respect  to  them  whereby  such  purchaser  was,  and 
a  prudent  person  would  naturally  be,  misled  by  some  apparent  owner- 
ship or  power  of  Cutter  &  Co.,  or  their  representatives  in  or  over  the 
same,  created  by  such  act  or  omission. 

If  plaintiff  clothed  Cutter  &  Co.  with  apparent  title,  or  power  to  sell, 
or  did  anything  out  of  the  usual  course  of  business  calculated  to  and 
which  did  actually  mislead  the  defendants  in  respect  to  the  ownership 
or  right  of  sale  of  the  cotton,  it  would  clearly  be  inequitable  to  permit 
the  plaintiff  to  recover  therefor  from  the  defendants,  who  had  parted 
with  their  money  on  the  faith  and  credit  of  the  appearances  so  created 
by  him.  The  principle  of  estoppel  would  doubtless  apply.  McNeil  v. 
Tenth  National  Bank,  40  N.  Y.  329. 

The  question  therefore  arises,  did  plaintiff  so  clothe  Cutter  &  Co.  with 
apparent  title  to  or  authorit}*  to  dispose  of  the  cotton  in  question.  De- 
fendants claim  that  by  giving  to  them  the  delivery  orders  he  conferred 
upon  them  indicia  of  title. 

It  seems  scarcely  necessary  to  discuss  this  proposition.  The  deliv- 
ery orders  were  but  the  usual  means  adopted  to  put  Cutter  &  Co.  into 
temporary  possession  of  the  cotton  to  enable  them  to  weigh,  tag,  and 
cart  it  for  shipment  to  the  manufacturing  companies  they  had  falsely 
ami  fraudulently  represented  as  purchasers.  These  orders  worked  no 
harm  to  an)'  one.  They  were  not  seen  by  defendants  or  any  per- 
son representing  them,  and  their  existence  even  was  unknown  to  them. 
If  the  delivery  orders  were  of  such  character  as  to  indicate  title  in  Cut- 
ter &  Co.,  yet,  as  defendants  were  not  misled  by  them,  they  furnish  no 
support  to  their  claim  of  estoppel.  This  is  a  familiar  rule  of  law,  and 
was  so  held  in  Boyson  v.  Coles,  (5  M.  &  S.  14,  which  is  a  case  similar 
in  principle  to  the  one  at  bar.  It  was  also  held  in  that  case  that  a  de- 
livery order  is  evidence  of  right  of  possession,  and  not  of  ownership. 
Says  Abbott,  J.  :  lk  Upon  this  point,  all  that  appears  to  have  been  im- 
parted to  the  defendant,  as  the  act  of  the  plaintiffs,  was  the  transfer 
order  to  the  dock  company,  Upon  which  the  transfer  was  made  to  him 
by  Coles  Brothers;  but  I  consider  the  transfer  order  merely  as  affect- 
ing the  possession;  farther  than  that  I  cannot  carry  it;  and  posses- 
sion alone  is  not  a  sufficient  emblem  of  authority  to  entitle  a  factor  to 
pledge  so  as  to  enable  the  pawnee  to  hold  the  goods  against  the  real 
owner.  In  the  present  case,  it  does  not  appear  that  the  defendant 
was  misled  by  any  act  or  document  with  which  the  plaint  ill's  were  con- 
cerned, other  than  such  as  regarded  possession,  and  therefore  the  jury 


SECT.  IV.]  COLLINS   V.   EALLL  583 

were  warranted  in  the  conclusion  which  they  came  to  on  the  second 
question."  People  v.  Bank  of  North  America,  75  X.  Y.  547.  The 
purpose  of  these  orders  was  served  when  they  were  delivered  to  the 

warehousemen  who  had  the  cotton  in  store,  and  the}'  obeyed  them. 
They  no  more  indicate  title  than  a  written  direction  to  one's  cobbler  to 
deliver  to  his  servant  a  pair  of  shoes,  clothes  the  latter  with  apparent 
ownership  and  right  of  sale  of  them.  McEwan  v.  Judd,  2  II.  of  L. 
Cas.  301). 

Defendants  also  insist  that  plaintiff,  by  intrusting  Cutter  &  Co.  with 
the  temporary  possession  of  the  cotton  for  shipment,  vested  them  with 
indicia  of  title.  It  is  true  that  possession  is  some  evidence  of  owner- 
ship, but  the  rule  is  elementary  that  bare  possession  is  not  sufficient  to 
enable  one  to  convey  title  to  chattels.  Ballard  v.  Burgett,  40  N.  Y. 
811 ;  McNeil  v.  Tenth  Xat.  Bank,  supra  ;  F.  and  M.  Bk.  v.  Atkinson.  7 1 
X.  Y.  5*7  ;  F.  and  M.  Bk.  v.  Logan,  id.  568  ;  Loomis  v.  People,  supra  ; 
McGoldrick  v.  Willits,  52  X.  Y.  G12  ;  Saltus  v.  Everett,  20  Wend.  267  ; 
Lickbarrow  v.  Mason,  2  T.  R.  02  ;  Bo\son  v.  Coles,  supra.  If  it  were 
otherwise,  ordinary  business  affairs  could  not  be  conducted  with  safety. 
The  demands  of  trade  require  almost  innumerable  agencies  in  the  trans- 
portation of  merchandise,  and  necessitate  their  delivery  to  employes, 
agents,  and  even  strangers,  for  that  purpose. 

The  case  of  Higgins  v.  Burton,  26  L.  J.  n.  s.  342,  Ex.,  is  identical 
in  principle  with  the  one  at  bar.  Plaintiff  there  had  dealings  with  one 
Fitzgibbon,  a  merchant  at  Cork,  in  whose  employ  one  Dix  had  been, 
who  was  known  to  plaintiff  as  agent  for  Fitzgibbon.  Dix  was  dis- 
charged by  Fitzgibbon,  and  afterwards  and  before  plaintiffs  were  in- 
formed of  it  proposed  to  purchase  from  them,  in  Fitzgibboivs  name, 
some  silks,  which  were  delivered  to  him  and  by  him  sent  to  defendant, 
who  was  an  auctioneer,  by  whom  they  were  sold  and  the  proceeds  paid 
over  to  Dix.  Afterwards  Dix  obtained  other  goods  from  plaintiff  in  a 
similar  way,  upon  which  defendants  made  advances  in  ignorance  of  the 
fraud.  The  plaintiff  brought  trover  and  recovered.  Watson,  B  ,  says  : 
'•  Dix  only  affected  to  have  the  authority  of  Fitzgibbon  to  purchase  the 
goods  ;  he  had  in  fact  no  such  authority  and  no  property  passed  to 
him.  There  was  no  real  contract  and  he  could  give  no  better  title  than 
he  had  ;  and  the  pledge  to  the  defendant  passed  no  property.  The  case 
of  Hardman  v.  Booth,  1  H.  &  C.  803  ;  7  L.  T.  Rep.  n.  s.  638  ;  Cundy 
v.  Lindsay.  38  id.  578  ;  and  Barker  et  al.  v.  Dinsmore,  72  Penn.  427, 
are  similar  in  their  facts  and  to  the  same  effect.  Babcock  v.  Lawson, 
20  Alb.  L.  J.  407,  cited  and  relied  upon  by  defendant's  counsel,  does 
not  conflict  with  these  authorities  or  the  views  here  stated.  That  case 
has  no  similarity  to  this.  The  language  of  Chief  Justice  Cockburn.  in 
relation  to  possession  as  evidence  of  title,  relates  only  to  the  possession 
of  a  factor  or  one  otherwise  held  out  as  having  power  to  sell.  The 
distinction  must  be  borne  in  mind  between  the  case  in  hand  and  that 
of  a  person  procuring  the  sale  of  goods  by  means  of  false  pretences. 
Here  there  was  no  sale  ;  there  was  no  purchaser,  and  so  the  title  re- 


500  COLLINS   V.    RALLI.  [CHAP.  IV. 

mained  in  plaintiff.  If  one  by  fraudulent  contrivances  induce  the  sale 
and  delivery  of  goods  to  himself,  he  could  doubtless  convey  a  good  title 
to  a  bona  fide  purchaser  of  them  for  value  so  long  as  the  original  owner 
has  not  exercised  his  right  to  revoke  the  sale  and  reclaim  his  goods. 
The  reason  of  this  rule  is  obvious.  The  owner  in  the  case  supposed  has 
clothed  the  fraudulent  purchaser  with  a  qualified  title,  as  well  as  given 
him  possession,  and  therefore  it  would  be  a  rank  injustice  to  permit  him 
to  take  them  from  an  innocent  person  who  had  in  his  purchase  relied 
upon  the  evidences  of  title  so  created.  The  principle  of  estoppel  in 
such  cases  would  prevail.  This  distinction  is  pointed  out  in  Cundy  v. 
Lindsay,  supra,  in  which  Lord  Chancellor  Cairns  in  his  opinion  says  : 
"The  result,  therefore,  is  this,  that  your  lordships  have  not  here  to 
deal  with  one  of  those  cases  in  which  there  is  de  facto  a  contract  made, 
which  may  afterwards  be  impeached  and  set  aside  on  the  ground  of 
fraud,  but  you  have  to  deal  with  a  case  which  ranges  itself  under  a 
completely  different  chapter  of  law  :  the  case  namely  in  which  the  con- 
tract never  comes  into  existence  That  being  so,  it  is  idle  to  talk  of 
property  passing."  Zink  y.  The  People,  supra;  McGoldrick  v.  Willits, 
52  X.  Y.  612;  Smith  v.  The  People,  53  id.  111. 

The  rule  of  law  applicable  to  the  two  classes  of  cases,  and  the  dis- 
tinction above  referred  to,  are  accurately  and  tersely  stated  in  the 
head-note  to  the  case  of  Higgins  v.  Burton,  supra,  as  follows  :  "  When 
the  owner  of  goods  suffers  another  to  have  possession  of  them,  or  of  the 
documents  which  are  the  evidence  of  property  therein,  on  a  sale  to  him 
obtained  by  means  of  fraudulent  representations,  and  avoidable  at  the 
option  of  the  owner,  a  sale  or  pledge  by  such  party  before  the  owner 
has  exercised  his  option  and  without  notice  to  the  subsequent  purchaser 
is  binding;  but  this  is  not  so  when  the  party  has  merely  obtained  the 
goods  by  means  of  false  pretences,  without  any  contract  of  sale  to  him- 
self, as  when  he  falsely  and  fraudulently  represents  that  another  person 
has  authorized  him  to  purchase  the  goods  ;  and  in  such  case  the  orig- 
inal owner  can  recover  the  goods  from  a  party  to  whom  they  have  been 
sold  or  pledged  by  the  person  who  fraudulently  obtained  them  before 
any  notice  of  the  fraud  or  an}T  disaffirmance  of  the  transaction  by  the 
real  owner." 

The  only  case  that  has  been  cited  or  which  we  have  been  able  to  find 
in  conflict  with  these  views  is  Craig  v.  Marsh,  2  Daly,  Gl.  The  learned 
judge  who  wrote  the  opinion  seems  to  have  been  misled  by  the  general 
language  of  the  opinion  of  some  of  the  cases  of  sales  of  goods  by  false 
pretences,  and  not  to  have  kept  in  mind  the  distinction  between  this 
line  of  authorities  and  those  in  which  there  is  de  facto  no  contract  of 
sale  made,  as  stated  by  Lord  Chancellor  Cairns  in  Cundy  v.  Lindsay, 
supra,  in  commenting  on  this  distinction.  The  opinion  itself,  and  the 
cases  cited  and  relied  upon  by  the  learned  judge,  indicate  this  mistake. 
The  counsel  for  the  plaintiffs  in  that  case  also  seems  to  have  fallen  into 
the  error  of  conceding  that  the  person  fraudulently  procuring  the  goods 
was  not  guilty   of  larceny,    and   the  concession   doubtless   misled   the 


SECT.  IV.]  COLLINS    V.    RALLI.  591 

court.  The  ease,  so  far  as  we  are  aware,  has  not  been  cited  with  ap- 
proval or  followed,  and  is  not  supported  by  any  of  the  authorities 
referred  to  in  the  brief  opinion  of  the  court. 

This  brings  us  to  a  consideration  of  the  effect  of  section  G,  chapter 
32G,  of  the  Laws  of  1858,  upon  the  rights  of  the  parties.  This  Act  is 
entitled  "  An  Act  to  prevent  the  issue  of  false  receipts,  and  to  punish 
fraudulent  transfers  of  property  by  warehousemen,  wharfingers,  and 
others  (3d  Edm.  Stat.  p.  667). 

The  section  in  question  read  as  follows:  "  Warehouse  receipts  given 
for  any  goods  .  .  .  stored  or  deposited  with  any  warehouseman  .  .  . 
may  be  transferred  by  indorsement  thereof,  and  any  person  to  whom 
the  same  may  be  so  transferred  shall  be  deemed  and  taken  to  be  the 
owner  of  the  goods  .   .   .  therein  specified,  so  far  as  to  give  validity  to 
any  pledge,  lien,  or  transfer  made  or  created  by  such  person  or  persons." 
The  learned  counsel  for  the  defendants  insist,  that  the  provisions  of 
this  section  afford  them  a  complete  protection  against  a  recovery  in  this 
action  ;  that,  having  purchased  the  cotton  upon  the  faith  of  the  nego- 
tiable warehouse  receipts,  and  paid  therefor  full  market  value,  this  case 
falls  both  within  the  spirit  and  the  letter  of  the  section.     All  the  other 
sections  of  this  Act,  except  the  last,  which  is  unimportant,  prohibit  the 
issue  of  false  receipts,  etc.,  and  prescribe  the  penalty  for  a  violation 
of  their  provisions.     The  scope  and  object  of  the  Act,  therefore,  seems 
to  be  to  protect  the  mercantile  community  against  fraudulent  practices 
by  warehousemen,  wharfingers,  and  others,  in  respect  to  these  receipts 
for  goods  stored  or  represented  to  be  stored  with  them.     That  this  is 
the   purpose   is  shown  by  the  title  of  the  Act.     The  sixth  section  is 
simply  an  enunciation  of  common  law  principles.     It  estops  the  ware- 
houseman from  disputing  the  title  of  the  innocent  holder  of  a  negotiable 
receipt  issued  by  him,  and  renders  him  liable  to  account  to  such  holder 
for  the  goods  therein  represented,  whether  falsely  issued  or  not.     The 
clause,   "  warehouse  receipts  given  for  any  goods  .  .  .  stored  or  de- 
posited with  any  warehouseman,"  means  receipts  given  for  goods  so 
stored  or  deposited  by  any  person  having  the  title  thereto,  real  or  ap- 
parent, or  authority  from  such  person  therefor.     This  section  of  the  Act 
proceeds  upon  the  assumption  that  the  receipt  is  so  issued.     Any  other 
construction  would  enable  warehousemen  to  issue  receipts  for  goods, 
known  by  them  to  be  stolen,  and  so  convey  title  to  them,  or  even  them- 
selves to  commit  larceny,  and  by  issuing  receipts  for  the  stolen  property 
defraud  the  plundered  owner  of  all  title  to  and  power  of  reclaiming  it. 
Such  a  construction  would  work  a  change  in  the  law  hardly  contem- 
plated by  the  legislature  when  the  Act  under  consideration  wns  passed, 
and  vet  the  construction  insisted  upon  by  the  defendants  would  accom- 
plish precisely  this  result.     Courts  often  have  to  look  beyond  the  mere 
words  of  a  statute  in  determining  its  meaning,  and  give  to  it  such  an 
interpretation  as  the  mischief  sought  to  be  cured  and  the  evident  inten- 
tion  of  the   legislature   indicate.     Chapter  179  of  the  Laws  of   1830, 
commonly  called  the  Factor  Act,  is  entirely  analogous,  and  has  been 


592  COLLINS  V.    RALLL  [CHAP.  IV. 

construed  by  the  Court  of  Appeals  in  conformity  with  the  interpretation 
above  given  to  the  Warehouse  Act.  The  Factor  Act  provides  that 
"every  person  in  whose  name  any  merchandise  shall  be  shipped  shall 
be  deemed  the  true  owner  thereof,"  etc.  Now  it  is  evident  that  a 
literal  reading  of  this  clause  would  give  a  thief  who  shipped  stolen 
goods  in  his  own  name  the  same  power  to  conve}'  a  good  title  to  them, 
as  the  same  character  of  construction  would  the  warehouseman  under 
the  sixth  section  of  the  Warehouse  Act,  as  above  shown  ;  but  the  Court 
of  Appeals  has  held  in  Kinsey  v.  Leggett,  71  N  .Y.  387,  and  other  cases, 
that  the  Act  "only  applies  when  the  shipment  is  made  with  the  eon- 
sent  of  the  real  owner  in  the  name  of  another ;  "  that  "  the  Act  was 
not  intended  to  deprive  actual  owners  (of  their  property)  who  had  not 
parted  with  their  title,  or  who,  by  fraud  and  without  any  fault  on  their 
part,  had  lost  control  over  it."  Merch.  and  Trad.  Bk.  v.  F.  and  M. 
Bk.,  60  N.  Y.  40;  Rowland  v.  Woodruff,  id.  73:  First  National  Bank 
of  Toledo  v.  Shaw,  61  id.  283;  Covell  u.  Hill,  4  Denio,  323;  s.  c.  2 
Seld.  374;  F.  and  M.  Bk.  v.  Logan,  74  N.  Y.  568. 

The  precise  question  here  presented  was  decided  by  the  Commission 
of  Appeals  in  the  First  National  Bank  of  Toledo  v.  Shaw,  61  N.  Y. 
283.  The  plaintiff  had  discounted  drafts  drawn  upon  T.  W.  Griffin  & 
Co.,  of  New  York  City,  upon  the  security  of  a  bill  of  lading  of  a  cargo 
of  wheat,  which  stated  that  the  wheat  was  shipped  on  account  of  plain- 
tiff to  Kidd,  Pierce,  &  Co.,  of  New  York,  to  be  held  by  them  until  pay- 
ment of  the  drafts,  and  then  to  be  delivered  to  T.  W.  Griffin  &  Co., 
the  wheat  at  Buffalo  to  be  received  and  forwarded  by  A.  L.  Griffin  & 
Co.  to  Kidd,  Pierce,  &  Co.  A.  L.  Griffin  &  Co.  transshipped  by  canal 
from  Buffalo,  and  issued  a  canal  bill  of  lading,  in  substance  like  the 
above,  with  the  addition  that  the  freight,  etc.,  were  to  be  paid  to  Young 
Bros.,  and  sent  this  bill  to  T.  W.  Griffin  &  Co.  or  to  Young  Bros.  On 
the  arrival  of  the  wheat  at  New  York,  it  was  unloaded  by  direction  of 
T.  W.  Griffin  &  Co.  at  the  warehouse  of  Shaw  &  Co.,  who  issued  to 
them  a  negotiable  warehouse  receipt  therefor,  according  to  their  custom, 
which  was  to  issue  warehouse  receipts  to  any  one  who  sent  boats  to 
them  without  demanding  to  see  the  bill  of  lading. 

T.  W.  Griffin  &  Co.  indorsed  and  delivered  the  warehouse  receipt  to 
the  New  York  Guaranty  and  Indemnity  Company,  and  that  company, 
upon  the  faith  of  it,  made  a  loan  of  $14,000  to  Griffin  &  Co.  One  of 
the  drafts  held  by  the  bank  was  afterwards  protested  for  non-payment, 
and  it  then  brought  an  action  against  Shaw  &  Co.  and  the  Guaranty 
and  Indemnity  Company  to  recover  possession  of  the  wheat ;  and  the 
Commission  of  Appeals  held  that  it  was  the  duty  of  the  warehouse- 
men (Shaw  &  Co.)  to  have  made  inquiries  as  to  the  title  of  T.  W. 
Griffin  &  Co.,  and  inasmuch  as  the  latter  had  no  title  or  indicia  of  title 
save  the  bare  manual  possession  of  the  wheat,  that  the  warehouse  re- 
ceipt afforded  no  protection  to  the  Guaranty  and  Indemnity  Company. 
Commissioner  D wight  says,  at  page  297  of  the  reported  case:  "The 
warehousemen  (Shaw  &  Co.)  were  bound  to  inquire  whether  a  bill  of 


SECT.  IV.]  COLLINS   V.RALLI.  593 

lading  accompanied  the  shipment.  Their  custom  to  make  no  inquiries, 
but  to  ware-house  grain  for  any  one  who  had  the  possession,  could  not 
in  any  respect  prejudice  the  rights  of  the  plaintiff.  Having  warehoused 
it,  they  were  bound  to  hold  the  grain  for  the  rightful  owner.  Their 
receipt  given  for  the  grain  was  no  protection  to  the  Guaranty  and  in- 
demnity Company.  8haw  &  Co.  simply  trusted  to  a  person  having  the 
naked  possession,  without  any  title  or  indicia  of  it.  If  on  that  bare 
possession  they  issued  evidences  of  title,  they  were  mere  waste  paper, 
under  which  the  Guaranty  Company  can  make  no  claim.  A  mere  pos- 
sessor cannot  confer  ownership  by  falsely  asserting,  through  Mils  of 
lading  or  warehouse  receipts,  that  he  has  a  title."  Again,  at  page  .".'12, 
he  says:  "If  the  Guaranty  Company  saw  fit  to  act  on  the  so-called 
warehouse  receipt,  which  itself  had  no  solid  foundation,  it  acted  at  its 
peril.'"  And  at  page  3<>3,  etc.,  he  soys:  "  Shaw  &  Co.  could  not 
safely  repose  on  the  mere  possession  of  Griffin  &  Co.,  but  were  hound 
to  look  into  the  shipping  documents,  and  are  accordingly  chargeable 
with  constructive  notice  of  their  contents.  The  Guaranty  Company 
are  in  the  same  position  with  Shaw  &  Co.  The  warehouse  receipt 
being  mere  waste  paper,  that  company  can  claim  no  rights  under  it." 

It  is  indisputable  that  the  precise  point  in  controversy  in  this  action 
is  here  determined,  and  that  it  was  directly  involved  in  that  case.  If, 
then,  Shaw  &  Co.  had  no  right  to  issue  a  warehouse  receipt  for  goods 
to  one  having  control  of  the  boat  by  and  in  which  they  were  shipped, 
and  then  contained,  and  if  a  receipt  so  issued  is  worthless,  and  no  pro- 
tection to  one  acting  and  advancing  on  the  faith  of  it,  it  is  needless  to 
argue  that  there  is  no  justification  for  the  warehouseman.  Richards, 
in  the  case  at  bar,  issuing  receipts,  as  is  shown  by  the  testimony  of 
the  witness  Kane,  contrary  to  the  usual  course  of  business,  to  one  hav- 
ing merely  the  naked  manual  possession  of  the  goods  for  a  temporary 
purpose,  and  where  the  shipping  tags  on  the  goods  were  in  themselves 
sufficient  evidence  at  least  to  put  a  prudent  man  on  inquiry  as  to  the 
nature  and  purpose  of  such  possession  ;  and  if  in  the  Toledo  Bank 
Case  the  warehouse  receipts  furnished  no  ground  for  protection  to  the 
Guaranty  Company,  the  receipts  issued  by  Richards  surely  cannot  avail 
the  defendants  in  this  action. 

In  Geneva  National  Bank  v.  Reamer,  7  Weekly  Digest,  462,  the 
court,  at  Special  Term,  simply  held  that  the  question  for  whom  the 
grain  covered  by  the  receipt  was  received  or  held  by  the  warehouse- 
man was  one  of  fact,  and  should  have  been  submitted  to  the  jury,  and 
the  learned  justice  in  his  opinion  correctly  remarks  :  "  A  receipt  fraudu- 
lently issued  to  one  who  has  no  property  held  in  store  for  him  cannot 
bind  or  affect  property  held  for  another."  In  Yenni  r.  McNamee,  45 
N.  Y.  619,  the  receipt  given  was  held  not  to  be  a  warehouse  receipt 
under  the  meaning  of  the  statute.  In  McCombie  v.  Spader,  1  Hun, 
193,  the  goods  covered  by  the  receipt  were  sold  to  the  person  putting 
them  in  store,  although  the  sale  was  fraudulently  procured:  hence  he 
was  in  position  before  the  goods  were  reclaimed  by  the  original  owner 

38 


594  COLLINS    V.    RALLI.  [CHAP.  IV. 

to  convey  good  title  to  them  03-  sale  directly  to  an  innocent  purchaser, 
or  through  the  medium  of  a  warehouse  receipt. 

Plaintiff's  demand  of  the  defendants,  before  suit  brought,  was  suffi- 
cient. It  is  evident  from  the  testimony  that  they  knew  to  what  cotton 
he  referred.  The  larceny  and  flight  of  Cutter  &  Co.  had  become  a 
matter  of  public  comment,  and  the  cotton  in  question  was  called  by 
them  the  Cutter  cotton,  and  known  to  them  to  have  come  through 
Cutter  &  Co.,  and  the  plaintiff,  by  his  demand,  made  orally  and  in 
writing  on  the  2d  of  March,  1878,  specified  the  exact  number  of  bales 
required,  and  so  designated  them  as  connected  with  the  fraud  of  Cut- 
ter &  Co.  as  to  have  left  no  doubt  in  the  mind  of  the  plaintiff  as  to  the 
cotton  called  for. 

The  demand  formerly  made  by  plaintiff,  Jan.  11,  1878,  when  he 
found  a  portion  of  the  cotton  in  defendants'  possession,  was  also  suffi- 
cient. If  they  had  any  misgivings  at  the  time  of  either  demand  as  to 
the  cotton  referred  to,  it  was  their  duty  so  to  inform  plaintiff,  and  thus 
procure  a  more  definite  description  of  it.  Their  failure  so  to  do  was 
a  waiver  of  any  defect  there  may  be  in  the  demands  in  this  respect. 
Marine  Bank  of  Buffalo  v.  Fiske,  71  N.  Y.  355. 

The  demand  and  refusal  to  deliver  the  cotton,  however,  was  only 
evidence  of  conversion,  and  as  it  appeared  upon  the  trial  that  the  de- 
fendants had  actually  converted  it  by  shipping  it  to  Liverpool  nearly 
two  months  before  the  commencement  of  the  action,  and  there  disposing 
of  it,  a  demand  was  unnecessary.  Marine  Bank  of  Buffalo  y.  Fiske, 
supra  ;  Pease  v.  Smith,  61  N.  Y.  477  ;  Connah  v.  Hale,  23  Wend.  402. 

We  have  thus  gone  over,  at  considerable  length,  the  various  ques- 
tions raised  in  this  case  and  argued  in  the  briefs  of  counsel  with  much 
force  and  skill,  because  of  their  great  importance,  and  as  to  some  of 
them,  their  novelty.  All  the  parties  to  this  action  are  innocent  of 
fault  in  respect  to  the  matters  in  controversy,  and  it  is  simply  the 
duty  of  the  court  to  see  to  it  that  the  loss,  which  in  an}'  event  must 
work  a  hardship,  falls  where  the  law  casts  it. 

The  judgment  appealed  from  must  be  affirmed,  with  costs. 

Barnard,  P.  J.,  and  Gilbert.  J.,  concurred. 

Judgment  affirmed,  with  costs.1 

1  This  decision  was  affirmed  by  the  Court  of  Appeals,  85  N.  Y.  637,  and  was  fol- 
lowed in  Soltau  v.  Gerdau,  119  N.  Y.  380. 


SECT.  IV.]  COMMERCIAL   BANK    OF   SELMA   V.    HURT.  59c 


COMMERCIAL   BANK   OF   SELMA   v.    HURT. 

SAME   v.   LEE. 

Alabama  Supreme  Court,  November  2,  1892,  January  31,  1893. 

[/•'<  ported  in  12  Southern  Reporter,  568;  ib.  572.] 

Walker,  J.  The  claim  of  the  appellant,  the  Commercial  Bank  of 
Selma,  to  the  cotton  involved  in  this  suit  rests  upon  a  transfer  and  de- 
liver}' by  the  II.  C.  Keeble  Company  of  warehouse  receipts  therefor  as 
collateral  security  for  a  note  made  by  that  company  to  the  bank.  The 
H.  C.  Keeble  Company  was  a  corporation  engaged  in  business  as  a  cot- 
ton factor  and  grocery  merchant  in  the  city  of  Selma.  The  appellee, 
who  was  the  owner  of  the  cotton,  had  had  it  shipped  to  that  company, 
with  instructions  not  to  sell  it  until  ordered  to  do  so.  The  consignee 
had  the  cotton  stored  in  the  warehouse  of  Phillips  &  Parish,  and  took 
the  warehouse  receipts  therefor  in  its  own  name.  No  advances  were 
made  to  the  appellee  on  this  cotton,  and  there  is  no  evidence  that  he 
authorized  the  consignee  to  store  it  and  take  the  warehouse  receipts  in 
its  own  name,  or  to  pledge  the  cotton  itself,  or  the  warehouse  receipts. 
Under  the  common  law,  a  factor  or  commission  merchant  has  no  implied 
authority  to  pledge  the  goods  of  his  principal  for  his  own  use.  Unless 
the  result  is  controlled  by  some  statute,  the  attempted  .pledge  does  not 
work  a  divestiture  of  the  title  of  the  principal,  and  the  party  receiving 
such  a  pledge  and  advancing  his  money  acquires  no  right  to  the  prop- 
erty as  against  the  principal,  whether  he  knew  he  was  dealing  with  a 
factor  or  not.  Bott  v.  McCoy,  20  Ala.  578  ;  Voss  v.  Robertson.  4G  Ala. 
483;  Allen  v.  Bank,  120  U.  S.  20,  7  Sup.  Ct.  Rep.  4G0 :  1  Lawson, 
Rights,  Rem.  &  Pr.  §  229.  In  England,  and  in  several  of  the  States  in 
this  country,  statutes  have  been  enacted  for  the  protection  of  third  per- 
sons who,  in  good  faith  and  in  ignorance  of  any  defects  of  title,  advance 
money  or  incur  obligations  on  the  faith  of  property  which  is  apparently 
owned  by  the  persons  with  whom  they  deal,  who,  however,  in  fact,  hold 
it  mereby  as  factors  or  agents,  having  been  intrusted  by  the  owners  with 
possession  of  the  propertv  or  of  documentary  evidence  of  title  to  it. 
Soltau  v.  Gerdau,  119  N.  Y.  380,  23  N.  E.  Rep.*8G4  ;  Howland  v.  Wood- 
ruff, GO  X.  Y.  73  ;  Price  v.  Insurance  Co.,  43  Wis.  2G7  ;  Macky  v.  Dillin- 
ger,  73  Pa.  St.  85;  George  v.  Bank,  41  Fed.  Rep.  257.  Decisions 
controlled  by  such  statutes  have  no  bearing  upon  this  case,  as  we  have 
no  statute  purporting  to  change  the  common-law  rule  which  protects  the 
owner  against  an  unauthorized  pledge  of  his  property  by  one  who,  as 
factor  or  agent  to  sell,  has  been  intrusted  with  the  possession  and  cus- 
tody of  it.  No  statute  is  appealed  to  which  could  give  any  color  to  a 
claim  that  an  unauthorized  pledge  by  a  factor  of  the  propertv  itself 
which  was  intrusted  to  him  would  have  any  other  effect  as  against  the 
principal  than  was  accorded  to  such  a  transaction  by  the  common  law. 


596  COMMERCIAL   BANK    OF    SELMA    V.    HURT.  [CHAP.  IV. 

If  tbe  H.  C.  Keeble  Company,  instead  of  having  the  cotton  stored  in  the 
warehouse  of  Phillips  &  Parish,  had  retained  possession  of  it  until, 
without  any  authority  or  license  from  the  appellee,  the  cotton  itself  was 
delivered  to  the  bank  in  pledge  to  secure  the  payment  of  the  note  of  the 
II.  C.  Keeble  Company,  it  is  plain  that  the  bank  would  not  have  acquired 
any  greater  title  to  the  property  than  that  company  had  to  confer,  and 
the  appellee  would  have  been  entitled  to  recover  the  cotton  from  the 
bank,  or  to  hold  the  bank  liable  for  its  conversion.  But  it  is  claimed 
that  the  factor,  having  stored  the  cotton  in  a  warehouse,  and  obtained 
warehouse  receipts  therefor  to  itself,  was  enabled,  b}-  the  transfer  of 
those  receipts,  to  confer  upon  the  bank  a  claim  to  the  cotton  which  must 
prevail  against  the  title  of  the  true  owner.  Section  1178  of  the  Code  is 
relied  upon  as  giving  this  effect  to  the  transfer  of  warehouse  receipts  by 
the  persons  to  whom  they  are  issued.  The  clause  of  that  section  upon 
which  this  claim  is  based  is  in  the  following  words:  "The  receipt  of  a 
warehouseman,  on  which  the  words  'Not  negotiable'  are  not  plainly 
written  or  stamped,  may  be  transferred  by  the  indorsement  thereof,  and 
any  person  to  whom  the  same  is  transferred  must  be  deemed  and  taken 
to  be  the  owner  of  the  things  or  property  therein  specified,  so  far  as  to 
give  validity  to  an}*  pledge,  lien,  or  transfer  made  or  created  by  such 
person."  Sections  1175.  1177-1179,  of  the  Code,  are  based  upon  an 
Act  approved  February  28,  1881,  entitled  "  An  Act  to  prevent  the  issue 
of  false  receipts,  and  to  punish  the  fraudulent  transfer  of  property  by 
warehousemen,  wharfingers,  and  others."  Acts  Ala.  1880-81,  p.  133. 
In  the  process  of  codification  the  provisions  of  that  statute  were  re- 
drafted, and  somewhat  modified.  But  the  provisions  of  the  four  sections 
above  mentioned  are  all  in  furtherance  of  the  main  legislative  purpose, 
which  was  indicated  in  the  title  and  in  the  corresponding  sections  of  the 
original  Act.  So  far  as  warehouse  receipts  are  concerned,  the  purpose 
of  the  statute  is,  in  the  first  place,  to  prevent  the  issue  of  such  receipts 
unless  the  property  therein  described  has  been  actually  received,  and  is 
in  the  possession  of  the  person  issuing  the  receipt.  This  purpose  is 
manifested  in  section  1175  of  the  Code.  The  purpose,  in  the  next 
place,  is  to  give  definite  legal  recognition  to  such  receipts  as  true  tokens 
of  the  possession  of  the  property  described  in  them  ;  and  to  regulate 
the  manner  in  which  the  holder  of  such  a  token  of  possession  may,  by. 
an  assignment  of  it,  convey  his  interest  in  the  property  described  as 
effectually  as  he  could  by  a  transfer  and  delivery  of  tbe  property  itself. 
The  provisions  to  this  end  are  embodied  in  sections  1177-1179.  Un- 
doubtedly it  was  the  intention  of  the  legislature  to  facilitate  and  throw 
safeguards  around  dealings  in  personal  property  by  the  use  of  paper 
representative  of  it.  To  this  end  the  holder  of  a  warehouse  receipt  is 
80  far  treated  as  the  possessor  of  the  property  mentioned  in  it  that  his 
transfer  of  the  receipt,  in  the  mode  prescribed  by  the  statute,  operates 
in  the  -nine  dim iiner  as  the  direct  delivery  of  the  property  itself  would 
do.  The  transfer  of  the  receipt  is  given  effect  as  a  symbolical  delivery 
of   possession.     The  statute  does  not  undertake  to  make  the  receipt 


SECT.  IV.]  COMMERCIAL    BANK    OF   SELMA    V.    HURT.  ~/J~ 

better  evidence  of  title  than  the  actual  possession  of  the  property  itself. 
We  cannot  conceive  that  it  could  have  been  within  the  contemplation  of 
the  legislature  that  the  provisions  of  the  statute  would  enable  a  thief,  by 
depositing  the  stolen  property  with  a  warehouseman,  and  obtaining  a 
receipt  for  it  in  due  form,  to  confer  upon  an  innocent  purchaser  for  value 
and  in  good  faith  a  claim  to  the  property  which  would  prevail  against 
that  of  the  true  owner. 

In  Collins  v.  Ralli,  20  Hun,  240,  it  was  held  that  a  New  York  statute 
substantially  identical  with  the  provision  above  quoted  did  not  protect 
the  purchasers  for  value  and  in  good  faith  of  warehouse  receipts,  when 
the  possession  of  the  cotton  they  represented  by  the  person  to  whom 
they  were  issued  had  been  larcenous.  After  quoting  the  statute,  the 
court  said:  "The  learned  counsel  for  the  defendants  insist  that  the 
provisions  of  this  section  afford  them  complete  protection  against  a  re- 
covery in  this  action  ;  that,  having  purchased  the  cotton  upon  the  faith 
of  the  negotiable  warehouse  receipts,  and  paid  therefor  full  market 
value,  this  case  falls  within  the  spirit  and  the  letter  of  the  section.  All 
the  other  sections  of  this  Act,  except  the  last,  which  is  unimportant, 
prohibit  the  issue  of  false  receipts,  etc.,  and  prescribe  the  penalty  for  a 
violation  of  their  provisions.  The  scope  and  object  of  the  Act,  there- 
fore, seems  to  be  to  protect  the  mercantile  community  against  fraudulent 
practices  by  warehousemen,  wharfingers,  and  others,  in  respect  to  these 
receipts  for  goods  stored  or  represented  to  be  stored  with  them.  That 
this  is  the  purpose  is  shown  by  the  title  of  the  Act.  .  .  .  The  clause 
'  warehouse  receipts  given  for  any  goods  .  .  .  stored  or  deposited  with 
any  warehouseman '  means  receipts  given  for  goods  so  stored  or  deposited 
by  any  person  having  the  title  thereto,  real  or  apparent,  or  authority  of 
such  person  therefor.  This  section  of  the  Act  proceeds  upon  the  as- 
sumption that  the  receipt  is  so  issued.  Any  other  construction  would 
enable  warehousemen  to  issue  receipts  for  goods,  known  by  them  to  lie 
stolen,  and  so  convey  title  to  them,  or  even  themselves  to  commit 
larceny,  and,  by  issuing  receipts  for  the  stolen  property,  defraud  the 
plundered  owner  of  all  title  to  and  power  of  reclaiming  it.  Such  a  con- 
struction would  work  a  change  in  the  law  hardly  contemplated  l>v  the 
legislature  when  the  Act  under  consideration  was  passed,  and  yet  the 
construction  insisted  upon  bjr  the  defendants  would  accomplish  precisely 
this  result.  Courts  often  have  to  look  beyond  the  mere  words  of  a  stat- 
ute in  determining  its  meaning,  and  give  to  it  such  an  interpretation  as 
the  mischief  sought  to  be  cured  and  the  evident  intention  of  the  legisla- 
ture indicate."  The  judgment  in  that  case  was  affirmed  by  the  Court  of 
Appeals  (Collins  v.  Ralli,  85  N.  Y.  637),  and  the  decision  has  been  ap- 
proved in  subsequent  cases  (Hentz  v.  Miller,  94  X.  Y.  64  ;  Soltau  v. 
Gerdau,  supra).  To  put  it  in  the  power  of  a  factor  to  give  effect  to  an 
unauthorized  pledge  of  the  property  of  his  principal  by  resorting  to  the 
device  of  pledging  a  receipt  for  the  property  instead  of  the  property  it- 
self, would  as  clearly  be  an  abridgment  of  the  common-law  rights  of  the 
owner  as  it  would  be  to  allow  a  thief,  by  using  a  receipt  for  the  stolen 


598  COMMERCIAL    BANK    OF    SELMA   V.    HURT.  [CHAP.  IV. 

property  instead  of  the  property  itself,  to  defeat  the  common-law  right 
of  the  owner  to  reclaim  the  stolen  property  in  whosesoever  hands  it  may 
he  found.  The  statute  under  consideration  does  not  purport  to  deal 
with  the  right  of  the  owner  of  personal  property  to  recover  it  from  the 
one  who  claims  under  a  disposition  of  it  which  was  unauthorized  by  the 
owner.  The  object  in  view  being  to  recognize  dealings  in  personal 
property  by  the  use  of  certain  tokens  of  its  possession,  to  prevent  the 
issue  of  such  tokens  except  when  the  property  mentioned  in  them  has 
actually  been  received  by  the  persons  issuing  them,  and  to  regulate  the 
transfer  of  the  property  by  assignment  of  the  token,  as  a  substitute  for 
actual  delivery  of  the  property.  The  statute  was  framed  on  the  assump- 
tion that  the  possession  of  the  property  by  the  person  to  whom  the 
token  was  issued  was  accompanied  by  ownership  and  a  right  to  dispose 
of  it,  and  questions  presented  by  the  assertion  of  a  paramount  claim  to 
the  property  were  not  dealt  with  by  the  statute,  but  were  left  to  be  de- 
termined by  existing  laws  governing  the  right  of  the  true  owner  of  prop- 
erty to  follow  and  reclaim  it  in  the  hands  of  persons  claiming  under  an 
unauthorized  disposition  of  it  by  one  not  the  true  owner,  but  in  actual 
possession  of  it.  There  is  evidence  in  section  1178  of  the  Code  of  the 
absence  of  any  intention  to  enable  the  holder  of  a  warehouse  receipt,  by 
a  transfer  of  it  by  indorsement,  to  confer  any  better  claim  to  the  prop- 
erty than  he  could  if  he  had  not  stored  the  property  with  a  warehouse- 
man, but  had  invested  the  person  with  whom  he  dealt  with  actual 
possession  of  it.  Immediately  after  the  clause  already  quoted  from  that 
section  is  the  following  provision:  "But  this  section  must  not  be  so 
construed  as  to  affect  or  impair  the  lien  of  a  landlord  on  such  things  or 
property  for  rent  or  advances,  or  to  affect  or  impair  any  lien  thereon 
created  by  contract,  of  which  notice  is  given  by  registration  in  the  man- 
ner prescribed  bylaw."  It  is  not  to  be  supposed  that  the  legislature 
was  more  solicitous  to  protect  the  rights  of  lienholders  than  those  of  the 
owners  of  the  property.  The  assumption  is  that  it  is  the  owner  who 
has  had  the  property  stored  and  obtained  a  warehouse  receipt  for  it,  and 
the  provision  just  quoted  simply  makes  it  plain  that  he  cannot,  by  a 
transfer  of  the  receipt,  any  more  than  he  could  by  a  disposition  of  the 
property  accompanied  by  an  actual  delivery  of  possession,  affect  or  im- 
pair liens  upon  it.  It  is  further  provided  in  the  same  section  that,  "  in 
the  event  of  the  loss  or  destruction  of  such  receipt,  the  warehouseman, 
not  having  notice  of  the  transfer  thereof  by  indorsement,  may  make  de- 
livery of  the  things  or  property  to  the  rightful  owner  thereof;  and  if  the 
things  or  property,  or  any  part  thereof,  be  claimed  or  taken  from  the 
custody  or  possession  of  the  warehouseman  under  legal  process,  the 
surrender  thereof  may  be  made  without  delivery  or  cancellation  of  such 
receipt,  or  without  indorsement  thereon."  The  first  of  these  two  clauses 
shows  that  it  was  assumed  that  the  receipt  was  issued  to  the  rightful 
owner  of  the  property.  The  second  of  them  shows  that  it  was  no  part 
of  the  legislative  intention  to  make  the  fact  that  his  receipt  is  outstand- 
ing a  protection  to  the  warehouseman  against  paramount  claims  to  the 


SECT.  IV.]  COMMERCIAL   BANK    OF   SELMA   V.    HURT.  599 

property,  or  to  displace,  in  the  case  of  the  issue  of  a  warehouse  receipt 
to  another,  the  common-law  rules  governing  the  rights  of  the  owner  to 
recover  his  property  from  a  stranger  claiming  under  a  disposition  of  it 
not  binding  on  him.  The  apparent  object  of  the  statutory  provisions  in 
reference  to  warehouse  receipts  is  to  give  them,  for  purposes  of  com- 
merce, recognition  and  credit  as  substitutes  for  the  property  described 
in  them,  and  to  give  dealings  in  them  the  same  effect  as  similar  deal- 
ings with  the  property  itself.  We  think  that  they  are  made  negotiable 
only  in  the  sense  that  in  their  passage  through  the  channels  of  commerce 
the  law  regards  the  property  which  they  describe  as  following  them,  and 
gives  to  their  regular  transfer  by  indorsement  the  effect  of  a  manual  de- 
livery of  the  things  specified  in  them.  No  intention  is  disclosed  to  give 
dealings  in  them  any  more  controlling  effect  upon  the  title  to  the  prop- 
erty they  represent  than  would  be  given  to  similar  dealings  with  the 
property  itself.  At  last  they  are  mere  tokens  of  possession,  and  no 
guaranties  of  title  by  the  persons  issuing  them.  The  warehouseman 
holds  himself  out  as  the  custodian  for  the  legal  holder  of  the  receipt  of 
the  property  mentioned  in  it,  but  he  does  not  warrant  the  title  of  the 
property  against  the  claims  of  strangers  to  the  contract  of  storage. 

This  view  of  the  statute  is  well  supported  by  pertinent  authorities. 
By  the  express  terms  of  the  statute  which  was  under  consideration  in 
the  ease  of  Insurance  Co.  v.  Kiger,  103  U.  S.  352.  the  unauthorized 
pledge  by  a  factor  of  a  warehouse  receipt  for  the  property  of  his  princi- 
pal was  ineffectual  as  against  the  principal.  On  that  ground  the  owner 
of  the  property  in  that  case  was  held  to  be  entitled  to  recover  it.  the 
adverse  claim  being  under  a  pledge  by  the  factor  of  warehouse  receipts 
for  it.  But  in  overruling  the  claim  of  the  pledgee  against  the  ware- 
houseman, based  upon  the  provisions  of  the  statute  declaring  warehouse 
receipts  issued  under  it  negotiable  by  indorsement,  and  making  the 
warehouseman  liable  to  the  legal  holder  or  owner  of  the  receipt  for  the 
market  value  of  the  property  therein  described,  the  court  said  :  ••  There 
is  no  pretence  of  fraud  or  collusion,  and  we  think  it  would  lie  a  surprise 
to  warehousemen  to  be  told  that  when  they  issue  their  receipts  for  prop- 
erty in  store  they  become  not  only  responsible  as  custodians  of  the 
property,  but  guarantors  of  its  title  to  the  assignees  of  the  receipts. 
Such  a  rule  would  make  it  necessarv  for  a  warehouseman,  before  jrivino- 

•  DO 

a  receipt,  not  only  to  ascertain  whether  he  had  the  property  actually  in 
store,  but  whether  the  title  of  the  bailor  was  valid  and  unincumbered. 
Certainly  this  could  not  have  been  in  contemplation  when  warehouse 
receipts  were  made  by  statute  negotiable,  and  to  some  extent  evidence 
of  ownership."  In  the  course  of  the  opinion,  these  expressions  were 
used:  "Undoubtedly  the  possession  of  the  receipts  was  equivalent  to 
the  possession  of  the  property.  .  .  .  The  receipt  in  the  hands  of  the 
company  represented  the  cotton  stored  by  Aiken  &  Watt,  and  gave  the 
company  the  same  rights  it  would  have  had  if  the  cotton,  instead  of 
the  receipts,  had  been  handed  over.  The  company  got  by  the  receipt 
such  interest  m  the  cotton  as  Aiken  &  Watt  could  by  their  pledge  con- 


COO  COMMERCIAL    BANK    OF    SELMA   V.    HURT.  [CHAP.  IV. 

vey,  and  that  is  all  Boyd  &  Co.  agreed  to  deliver  on  the  return  of  their 
receipts  by  the  lawful  holder."  In  noticing  a  Missouri  statute,  almost 
identical  in  its  title  and  provisions  with  the  original  Act  on  which  the 
sections  of  the  Code  under  consideration  were  based,  it  was  said  in  Allen 
v.  Bank,  120  U.  S.  20-35,  7  Sup.  Ct.  Rep.  460:  "  None  of  these  pro- 
visions are  limited  or  even  addressed  to  factors  or  other  agents  author- 
ized to  sell  goods  of  their  principals,  and  intrusted  for  that  purpose  with 
the  possession  either  of  the  goods  or  of  warehouse  receipts,  bills  of 
lading,  or  other  similar  documents  in  which  such  agents  are  named  as 
consignees.  But  their  leading  object  is  to  regulate  the  manner  and 
effect  of  transferring  warehouse  receipts  and  bills  of  lading  by  indorse- 
ment." The  meaning  of  the  later  statute  which  was  relied  on  in  that 
case  was  not  determined  by  the  court  except  to  the  extent  of  the  decision 
that  the  pledgee  of  the  warehouse  receipts,  without  their  indorsement  in 
writing,  was  not  entitled  to  its  protection.  As  representatives  of  prop- 
erty, bills  of  lading  and  warehouse  receipts  are  instruments  of  similar 
character.  They  are  dealt  with  as  substitutes  for  the  property  itself. 
The  assignment  of  a  bill  of  lading  for  value,  while  the  goods  are  in 
transit,  is  limited  to  the  effect  of  symbolizing  their  sale  and  delivery, 
and  the  assignee  is  thereby  invested  with  all  the  rights  of  a  purchaser 
with  actual  delivery  of  possession,  but  no  more.  Douglas  v.  Bank.  86 
Ky.  176,  5  S.  W.  Rep.  420  ;  Moore  v.  Robinson,  G2  Ala.  537.  In  Shaw 
v.  Railroad  Co.,  101  U.  S.  557,  it  was  recognized  that  a  statute  declar- 
ing that  bills  of  lading  '*  shall  be  negotiable  Irv  written  indorsement 
thereon  and  delivery,  in  the  same  manner  as  bills  of  exchange  and 
promissory  notes,"  should  not,  in  the  absence  of  language  clearly  evi- 
dencing such  an  intention,  be  construed  as  effecting  such  an  innovation 
upon  the  common-law  right  of  the  owner  of  property  to  protection 
against  its  misappropriation  by  others  that  such  misappropriation  could 
he  successfully  made  by  the  use  of  a  symbol  or  representative  of  the 
property,  when  it  would  not  prevail  against  the  claim  of  the  owner  if 
the  possession  of  the  property  itself  had  been  acquired  in  a  similar  man- 
ner. In  National  Bank  of  Commerce  v.  Chicago  B.  &  N.  R.  Co.,  44 
Minn.  224,  46  N.  \V.  Rep.  342,  560,  the  proposition  was  stated  and  ap- 
plied that  it  is  always  a  good  defence  to  a  carrier,  even  against  an  inno- 
cent indorsee  of  the  bill  of  lading,  that  the  property  was  taken  from  its 
possession  by  one  having  a  paramount  title  ;  and  it  was  decided  that  the 
correctness  of  this  proposition  was  not  affected  by  a  statute  which  pro- 
vided that  bills  of  lading  or  receipts  for  any  goods,  wares,  merchandise, 
etc.,  when  in  transit  by  ears  or  vessels,  "shall  be  negotiable,  and  may 
be  transferred  by  indorsement  and  delivery  of  such  receipt  or  bill  of 
lading,  and  any  person  to  whom  the  said  receipt  or  bill  of  lading  may 
be  transferred  shall  be  deemed  and  taken  to  be  the  owner  of  the  goods, 
wares,  or  merchandise  therein  specified/'  etc.  Mitchell,  J.,  delivering 
the  opinion  of  the  court,  said  of  this  statute:  "  It  was  not  intended  to 
totally  change  the  character  of  bills  of  lading,  and  put  them  on  the  foot- 
ing of  bills  of  exchange,  and  charge  the  negotiation  of  them  with  the 


SECT.  IV.]  COMMERCIAL   BANK    OF   SELMA   V.    HCKT.  601 

consequences  which  attend  or  follow  the  negotiation  of  bills  or  notes. 
On  the  contrary,  we  think  the  sole  object  of  the  statute  was  to  prescribe 
the  mode  of  transferring  or  assigning  bills  of  lading,  and  to  provide  that 
such  transfer  and  deliver}'  of  these  symbols  of  property  should,  for  cer- 
tain purposes,  be  equivalent  to  an  actual  transfer  and  delivery  of  the 
property  itself."  Our  conclusion  is  that  it  would  be  a  perversion  of  the 
manifest  purpose  of  the  statute  to  construe  it  as  having  the  effect  of 
putting  the  symbol  of  the  property  upon  a  higher  plane,  as  an  evidence 
of  title,  than  the  actual  possession  of  the  property  it  describes.  The 
statute  does  not  undertake  to  make  the  transfer  and  delivery  of  the 
symbol  more  than  the  equivalent  of  an  actual  transfer  and  delivery  of 
the  property  itself. 

Conceding  that  the  clause  in  the  contract  of  pledge,  "  which  cotton 
has  been  advanced  upon  by  us  to  its  full  value,"  does  not  show  that  the 
pledgor's  character  as  a  factor  was  recognized  in  the  transaction,  and 
that  it  was  the  intention  of  the  parties  to  limit  the  operation  of  the 
pledge  to  the  pledgor's  actual  interest  in  the  cotton  by  reason  of  ad- 
vances made  upon  it,  we  have,  then,  the  simple  case  of  a  pledge  by  a 
factor  of  the  property  of  his  principal  for  his  own  use.  The  warehouse 
receipts  which  he  obtained  are  to  be  regarded  as  the  cotton  itself  which 
he  held  in  the  capacity  of  an  agent  to  sell.  We  have  no  *•  Factors'  Act" 
to  raise  up  a  statutory  estoppel  against  the  owner,  based  upon  his  act  in 
intrusting  the  factor  with  possession  of  the  goods,  or  documentary  evi- 
dence of  ownership  and  right  of  disposal,  and  thereby  leading  innocent 
third  persons  to  deal  with  the  factor  on  the  faith  of  his  apparent  owner- 
ship. There  is  nothing  to  take  this  case  out  of  the  influence  of  the 
common-law  rule,  which  protects  the  owner  of  personal  property  against 
an  unauthorized  pledge  of  it  by  one  who  held  it  merely  as  factor  or  as 
agent  to  sell.  The  original  defendants,  the  warehousemen,  having  dis- 
claimed all  interest  in  the  suit,  the  plaintiff  was  entitled  to  recover  his 
cotton,  and  the  claim  of  the  bank,  based  upon  the  attempted  pledge  by 
the  H.  C.  Keeble  Company,  presented  no  legal  obstacle  to  the  plaintiff's 
recovery. 

It  affirmatively  appears  that  the  appellant  was  not  injured  by  the 
admission  of  evidence  of  the  market  value  of  the  cotton  prior  to  the 
date  of  the  transfer  of  the  warehouse  receipts.  That  evidence  was  that 
in  September  the  cotton  was  worth  9|  cents  per  pound.  The  undis- 
puted evidence  was  that  the  cotton  was  worth  9  cents  per  pound  in 
December  and  January,  after  the  transfer  of  the  warehouse  receipts. 
The  jury  assessed  the  value  of  all  of  it  at  only  9  cents  per  pound.  This 
valuation  was  supported  by  the  undisputed  evidence,  excluding  the  evi- 
dence ot  the  higher  value  in  September.  In  view  of  the  conclusion  that 
on  the  undisputed  evidence  the  plaintiff  was  entitled  to  recover,  it  is 
unnecessary  to  consider  the  various  charges  given  and  refused. 

Affirm.  ■!. 

Stone,  C.  J.  The  case  of  Commercial  Bank  v.  Lee  is  in  all  material 
respects  precisely  like  the  case  of  Bank  v.  Hurt.     In  the  opinion  in  that 


602  COMMERCIAL   BANK    OF    SELMA    V.    HURT.  [CHAP.  IV. 

case  all  the  facts  material  to  a  consideration  of  this  case  are  presented 
and  commented  on.  The  claim  of  the  Commercial  Bank  in  the  present 
suit  is  the  same  as  that  asserted  by  it  in  its  suit  against  Hurt.  In  this 
case  the  asserted  claim  to  the  cotton  in  controversy  is  by  virtue  of  the 
identical  indorsement  of  cotton  receipts  by  the  H.  C.  Keeble  Company 
which  was  relied  on  in  that  case.  The  alleged  transfer  was  indorsed  on 
the  back  of  the  note  which  the  H.  C.  Keeble  Company  gave  the  Com- 
mercial Bank  of  Selma,  and  is  in  the  following  words:  "We  hereby 
transfer  two  hundred  and  ninety-eight  bales  of  cotton,  marked,  num- 
bered, and  stored  as  shown  in  the  warehouse  receipts,  which  are  herewith 
transferred  and  delivered  as  collateral  for  the  within  note,  which  cotton 
has  been  advanced  upon  by  us  to  its  full  value  ;  and  we  hereby  authorize 
the  Commercial  Bank  of  Selma  to  take  actual  possession  of  the  same  at 
any  time  they  may  desire,  and  to  sell  the  same  without  notice,  at  public 
or  private  sale,  applying  the  proceeds  to  the  credit  of  this  note. 
[Signed]  H.  C.  Keeble  Company."  Accompanying  the  indorsement, 
the  Keeble  Company  delivered  to  the  bank  warehouse  receipts  for  the 
cotton  which  is  the  subject  of  this  suit.  Those  receipts  were  signed  by 
warehousemen,  and  in  them  they  acknowledged  they  had  received  the 
cotton  from  the  H.  C.  Keeble  Company  for  storage,  at  the  same  time 
announcing  therein  that  W.  R.  Lee  was  the  shipper.  The  receipts  also 
stated  that  the  name  W.  R.  Lee  was  marked  on  the  cotton.  It  was  an 
uncontroverted  fact  on  the  trial  that  the  H.  C.  Keeble  Company  was  en- 
gaged in  the  sale  of  cotton  as  factors  for  their  customers.  There  was 
no  testimony  offered  tending  to  prove  the  truth  of  the  recital  in  the  in- 
dorsement that  the  H.  C.  Keeble  Company  had  made  advances  on  the 
cotton  in  controversy.  The  claim  of  the  Commercial  Bank  is  rested 
mainly  on  section  1178  of  the  Code  of  1886,  which  reads  as  follows: 
tk  The  receipt  of  a  warehouseman,  on  which  the  words  '  Not  negotiable ' 
are  not  plainly  written  or  stamped,  may  be  transferred  by  the  indorse- 
ment thereof,  and  any  person  to  whom  the  same  is  transferred  must  be 
deemed  and  taken  to  be  the  owner  of  the  things  or  property  therein 
specified,  so  far  as  to  give  validity  to  any  pledge,  lien,  or  transfer  made 
or  created  by  such  person."  This  section  of  the  Code  of  1886  was 
doubtless  taken  from  section  6  of  the  Act  "  To  prevent  the  issue  of  false 
receipts,"  etc.,  approved  Feb.  28,  1881  (Sess.  Acts,  1880-81,  p.  133). 
The  rendering  of  the  Statute  in  the  Code  of  1886  is  not  a  literal  copy  of 
the  original  statute.  Possibly  it  was  the  intention  to  embody  the  same 
idea.  As  expressed  in  the  Code,  it  may  admit  of  question  whether  its  lan- 
guage is  broad  enough  to  place  the  first  indorsee  of  a  warehouse  receipt 
on  the  high  ground  claimed  for  him  in  this  suit.  Literally  that  statute 
creates  the  presumption  of  ownership  in  the  first,  indorsee  so  far  only  as  to 
give  validity  to  any  pledge,  lien,  or  transfer  made  or  created  "by  such 
person."  This  language,  if  interpreted  by  grammatical  rules,  only  author- 
izes the  person  to  whom  the  warehouse  receipt  is  indorsed  to  pledge  or 
transfer  it:  and  only  upholds  the  binding  efficacy  of  such  pledge  or 
transfer,  when  made  by  the  indorsee.     Thus  interpreted,  the  Commercial 


SECT.  IV.]  COMMERCIAL    BANK    OF    SELMA    V.    HURT.  603 

Bank  can  claim  do  benefit  or  advantage  under  that  statute,  because  the 
pledge  or  transfer  was  nut  made  by  an  indorsee  of  the  warehouse  re- 
ceipts. Possibly  the  original  statute,  as  enacted  by  the  legislature,  is 
susceptible  of  a  broader  interpretation.  We  need  not,  however,  decide 
this  question.  We  prefer  to  place  our  decision  on  a  different  principle. 
It  will  be  remembered  that  in  the  indorsement  on  the  note  by  which  the 
Keeble  Company  transferred  to  the  Commercial  Bank  all  the  title  or  in. 
terest  the  latter  can  or  does  assert  to  the  cotton  is  the  following  lan- 
guage :  "  Which  cotton  has  been  advanced  upon  by  us  to  its  full  value.' 
This  language  clearly  and  unmistakably  shows  that  the  Keeble  Company 
was  not  the  owner  of  the  cotton  in  absolute  right,  but  that  they  only 
claimed  to  have  advanced  upon  it  to  its  full  value.  This  was  notice  to 
the  bank  that  the  Keeble  Company  was  not  the  owner  of  the  cotton,  but 
that  it  asserted  a  lien  upon  it  by  virtue  of  advances  alleged  to  have  been 
made  by  it  to  the  owner.  And  this  notice  was  strengthened  by  the  recital 
in  the  warehouse  receipt  that  Lee  was  the  shipper  of  the  cotton.  If 
this  pertinent  information  had  been  followed  up,  the  Commercial  Bank 
could  not  have  failed  to  learn  the  true  title  and  status  of  the  cotton. 
Notice,  sufficient  to  put  one  on  inquiry,  is  notice  of  all  that  such  in- 
quiry will  naturally  lead  to.  This  leads  us  to  the  inevitable  conclusion 
that  the  bank,  in  receiving  the  transfer  of  the  warehouse  receipts,  re- 
ceived them  with  the  equivalent  of  notice  of  the  true  state  of  the  account 
between  the  owner  and  shipper  of  the  cotton  and  the  Keeble  Company, 
the  factor  for  its  sale.  From  this  it  follows  that  the  bank  became  the 
purchaser,  not  of  the  cotton,  but  only  of  the  interest  and  claim  which 
the  Keeble  Company  owned  and  could  assert.  Such  interest,  acquired 
with  such  notice,  is  in  no  sense  the  character  of  interest  which  section 
1178  of  the  Code  intends  to  secure  and  protect  in  an  indorsee  of  a  ware- 
house receipt.  It  rests,  not  upon  the  strength  of  the  indorsement  made, 
but  in  the  confidence  the  indorsee  entertains  in  the  assurance  that  the 
cotton  had  been  advanced  upon  to  its  full  value.  The  transaction  does 
not  fall  within  the  influence  of  the  statute  invoked  in  its  support.  As 
said  by  Mr.  Justice  Bronson,  in  discussing  this  subject  in  a  leading  case  : 
'■  It  is  impossible  to  suppose  that  the  legislature  intended  a  factor  to 
commit  a  fraud  upon  his  principal  by  pledging  or  obtaining  advances 
upon  the  goods  for  his  own  purposes,  when  the  pledgee  or  person  mak- 
ing the  advances  upon  the  goods  knew  that  he  was  not  dealing  with  the 
true  owner."  Stevens  /■•  Wilson,  6  Hill,  512,  3  Denio,  472  ;  Warner  v. 
Martin,  11  How.  20!)  ;  Covell  v.  Hill,  6  N.  Y.  374;  Cartwright  v.  Wil- 
merding,  24  N.  Y.  521  ;  Dows  >■.  Greene,  id.  638;  Howland  v.  Wood- 
ruff. 60  N.  Y.  73:  Allen  v.  Bunk,  120  IT.  S.  20.  7  Sup.  Ct.  Rep.  460; 
Shaw  v.  Railroad  Co.,  101  U.  S.  557.     There  is  no  error  in  the  record. 

Affirmed. 


Note.  —  Factors  Acts  have  been  passed  in  the  following  States  :  Kentucky,  Laws  of 
1880,  May  5;  Maine,  Rev.  St.  c.  31 ;  Maryland,  Rev.  Code,  Art  34;  Massachusetts, 
Pub   St.  c.  71  ;  Missouri,  Rev.  St.  §  6281  ;  New  York.  Acts  of  1830,  c.  179;  Ohio,  Rev 


604  COMMERCIAL   BANK    OF   SELMA   V.    HURT.  [CHAP.  IV. 

St.  §§  3215-3219  ;  Pennsylvania,  Brightly's  Purdon's  Dig  p.  773  ,  Rhode  Island,  Pub. 
St   c.  136  j  Wisconsin,  Rev.  St.  §§3345,3346. 

Without  the  aid  of  statute  a  factor  has  power  to  sell  on  credit.  Scott  v.  Surman, 
Willis,  400,  407  ;  De  Lazardi  v.  Hewitt,  7  B.  Mon.  697;  Greely  r.  Bartlett,  7  Greenl. 
172,  179  ,  Pinkham  v.  Crocker,  77  Me.  563  ;  Goodenow  v.  Tyler,  7  .Mass  36  ;  Roosevelt 
t\  Doherty,  129  Mass.  301,303  ;  Van  Alen  v.  Vanderpool,  6  Johns.  69  ,  Geyer  v.  Decker, 
1  Yeates,  486. 

But  a  pledge  by  a  factor  is  not  valid  unless  protected  by  statute.  Cole  v.  North- 
western Rank,  L.  R.  10  C.  P.  354  ;  Johnson  v.  Credit  Lyonuais  Co.,  3  C.  P.  D.  32  ; 
Warner  v.  Martin,  11  How.  209;  Allen  v.  St.  Louis  Bank,  120  U.S.  20;  Wright  v.  Solo- 
mon, 19  Cal.  64  ;  Gray  v.  Aguew,  95  111.  315  ;  First  Nat.  Bauk  v.  Schweeu,  127  HI.  573  ; 
Michigan  State  Bank  v.  Gardner,  15  Gray,  362,  374  ;  Hazard  v.  Fiske,  S3  N.  Y.  287  ; 
Laussatt  v.  Lippiucott,  6  S.  &  R.  386  ;  McCreary  v.  Gaines,  55  Tex.  485. 

Nor  can  a  factor  transfer  title  to  his  principal's  goods  by  way  of  barter.  Guer- 
reiro  v.  Peile,  3  B.  &  Aid.  616 ;  Waruer  v.  Martin,  11  How.  209,  226  ;  Potter  v.  Deuni- 
son,  5  Gilm.  590  ;  Benny  v.  Rhodes,  18  Mo.  151  ;  Benny  v.  Pegram,  IS  Mo.  191  ;  Hol- 
ton  v.  Smith,  7  N.  H.  446.  In  Warner  v.  Martin,  1 1  How.  209,  224,  Mr.  Justice  Wayne 
said  in  regard  to  wrongful  transfers  by  a  factor  :  — 

"  When  goods  are  so  pledged  or  disposed  of,  the  principal  may  recover  them  back  by 
an  action  of  trover  against  the  pawnee,  without  tendering  to  the  factor  what  may  be  due 
to  him,  and  without  auy  tender  to  the  pawnee  of  the  sum  for  which  the  goods  were 
pledged  (Dauhigney  u.  Duval,  5  T.  R.  604) ;  or  without  any  demand  of  such  goods  (6 
East,  53S  ;  12  Mod.  514) ;  and  it  is  no  excuse  that  the  pawnee  was  wholly  ignorant  that 
he  who  held  the  goods  held  them  as  a  mere  agent  or  factor  (Martini  v.  Coles,  1  Maule 
&  Selw  140),  unless,  indeed,  where  the  principal  has  held  forth  the  agent  as  the  prin- 
cipal (6  Maule  &  Selw.  147).  But  a  factor  who  has  alien  on  the  goods  of  his  principal 
may  deliver  them  over  to  a  third  person,  as  a  security  to  the  extent  of  his  lien,  and 
may  appoint  such  person  to  keep  possession  of  the  goods  for  him.  In  that  case  the 
principal  must  tender  the  amount  of  the  lien  due  to  the  factor,  before  he  can  be  enti- 
tled to  recover  back  the  goods  so  pledged.  Hartop  v.  Hoare,  Str.  1187;  Daubignv  v. 
Duval,  5  T.  R.  604  ;  6  East,  538  ;  7  East,  5  ;  3  Chitty's  Com.  Law,  193.  So  a  sale  upon 
credit,  instead  of  being  for  ready  money,  under  a  »eueral  authority  to  sell,  and  in  a 
trade  where  the  usage  is  to  sell  for  ready  money  only,  creates  no  contract  between  the 
owner  and  the  buyer,  and  the  thing  sold  may  be  recovered  in  an  action  of  trover.  Palev, 
Principal  and  .Agent,  109  ;  12  Mod.  514.  Under  any  of  these  irregular  transfers,  courts 
of  equity  (as  is  now  being  done  in  this  case)  will  compel  the  holder  to  give  an  account 
of  the  property  he  holds 

"  Rut  it  was  said,  though  a  factor  may  not  pledge  the  merchandise  of  his  principal  as 
a  security  for  his  debt,  he  may  sell  to  his  creditor  in  payment  of  an  antecedent  debt. 
No  ease  can  be  found  affirming  such  a  doctrine.  It  is  a  misconception,  arising  from  the 
misapplication  of  correct  principles  to  a  case  not  belonging  to  any  one  of  them.  The 
power  of  the  factor  to  make  such  a  sale,  and  the  right  of  the  creditor  to  retain  the  prop- 
erty, has  been  erroneously  put  upon  its  being  the  usual  course  of  business  between  fac- 
t  is  to  make  a  set-off  of  balances  as  they  may  exist  in  favor  of  one  or  the  other  of  them 
against  the  price  of  subsequent  purchases  in  their  dealings.  The  difference  between 
such  a  practice  and  a  sale  for  an  antecedent  debt  must  be  obvious  to  every  one  when  it 
is  stated.  In  the  one,  the  mutual  dealing  between  mercantile  persons  who  buy  and 
sell  on  their  own  account,  and  who  also  sell  upon  commission  for  others,  is  according 
to  the  well-known  usage  of  trade.  Its  convenience  requires  that  such  a  practice  shall 
rmitted.  But  it  must  be  remembered  it  is  an  allowance  for  the  convenience  of 
trade,  ami  for  a  readier  settlement  of  accounts  between  factors  for  their  purchases  from 
each  other  in  that  character.  It  does  not,  however,  in  any  instance,  bind  a  principal 
in  the  transfer  of  merchandise,  if  there  lias  been  a  departure  from  the  usages  of  trade, 
or  a  violation  of  any  principle  regulating  the  obligations  and  rights  of  principal  and 
factor. 

'  Again,  it  has  been  supposed  that  therightof  a  factor  to  sell  the  merchandise  of  his 
principal  to  his  own  creditor,  in  payment  of  an  antecedent  debt,  finds  its  sanction  in 


SECT.  IV.J  COMMERCIAL    BANK    OF    SELMA    V.    HURT.  605 

the  fact  of  the  creditor's  belief  that  his  debtor  is  the  owner  of  the  merchandise,  and  his 
ignorance  that  it  belongs  to  another;  and  if  in  the  last  lie  has  been  deceived,  that  the 
person  by  whom  the  delinquent  factor  has  been  trusced  shall  be  the  loser,  The  prin- 
ciple does  not  cover  the  case  When  a  contract  is  proposed  between  factors,  or  between 
a  factor  and  any  other  creditor,  to  pass  property  for  an  antecedent  debt,  ii  is  not  a  sale 
in  the  legal  sense  of  that  word  or  in  any  sense  in  which  it  is  used  in  reference  to  the 
commission  which  a  factor  has  to  sell.  See  Berry  v.  Williamson,  8  Howard,  495.  It 
is  not  according  to  the  usage  of  trade  It  is  a  naked  transfer  of  property  in  payment 
of  a  debt.  .Money,  it  is  true,  is  the  consideration  of  such  a  transfer,  but  no  money 
passes  between  the  contracting  parties.  The  creditor  pays  none,  and  when  the  debtor 
has  given  to  him  the  property  of  another  in  release  of  his  obligation,  their  relation  has 
only  been  changed  by  his  violation  of  an  agency  which  society  in  its  business  rela- 
tions cannot  do  without,  which  every  man  has  a  right  to  use,  and  which  every  person 
undertaking  it  promises  to  discharge  with  unbroken  fidelity.  When  such  a  transfer  of 
property  is  made  by  a  factor  for  his  debt,  it  is  a  departure  from  the  usage  of  trade, 
kuown  as  well  by  the  creditor  as  it  is  by  the  factor.  It  is  more  ;  it  is  the  violation  of 
all  that  a  factor  contracts  to  do  with  the  property  of  his  principal.  It  has  been  given  to 
him  to  sell.  He  may  sell  for  cash,  or  he  may  do  so  upon  credit,  as  may  be  the  usage  of 
trade.  A  transfer  for  an  antecedent  debt  is  not  doing  one  thing  or  the  other.  Both 
creditor  and  debtor  know  it  to  be  neither.  That  their  dealing  for  such  a  purpose  will 
be  a  transaction  out  of  the  usage  of  the  business  of  a  factor.  It  does  not  matter  that 
the  creditor  may  not  know,  when  he  takes  the  property,  that  the  factor's  principal 
owns  it;  that  lie  believed  it  to  be  the  factor's  in  good  faith.  His  dealing  with  his 
debtor  is  an  attempt  between  them  to  have  the  latter's  debt  paid  by  the  accord  and 
satisfaction  of  the  common  law.  That  is,  when,  instead  of  a  sale  for  a  price,  a  thing 
is  given  by  the  debtor  to  the  creditor  in  payment,  in  which  we  all  know  that,  if  the 
thing  given  is  the  property  of  another,  there  will  he  no  satisfaction.  It  is  the  dation 
i  n  pay<  ment  of  the  civil  law  as  it  prevails  in  Louisiana,  which  is,  when  a  debtor  gives, 
and  the  creditor  receives,  instead  of  money,  a  movable  or  immovable  thing  in  satisfac- 
tion of  the  debt." 


606  CHAXDELOR   V.    LOPUS.  [CHAP.   V. 


• 


CHAPTER  V. 
WARRANTY. 


SECTION    I. 

Express  Warranty. 

CHANDELOR  v.  LOPUS. 
In  the  Exchequer  Chamber,  Easter  Term,  1625. 

[Reported  in  Croke,  James,  4.] 

Action  upon  the  case.  Whereas  the  defendant  being  a  goldsmith, 
and  having  skill  in  jewels  and  precious  stones,  had  a  stone  which  he 
affirmed  to  Lopus  to  be  a  bezoar-stone,  and  sold  it  to  him  for  one  hundred 
pounds  ;  ubi  reoera  it  was  not  a  bezoar-stone  :  the  defendant  pleaded 
not  guilty,  and  verdict  was  given  and  judgment  entered  for  the  plaintiff 
in  the  King's  Bench. 

But  error  was  thereof  brought  in  the  Exchequer  Chamber ;  because 
the  declaration  contains  not  matter  sufficient  to  charge  the  defendant, 
viz.,  that  he  warranted  it  to  be  a  bezoar-stone,  or  that  he  knew  that  it 
was  not  a  bezoar-stone  ;  for  it  may  be,  he  himself  was  ignorant  whether 
it  were  a  bezoar-stone  or  not. 

And  all  the  justices  and  barons  (except  Anderson)  held,  that  for 
this  cause  it  was  error :  for  the  bare  affirmation  that  it  was  a  bezoar- 
stone,  without  warranting  it  to  be  so,  is  no  cause  of  action  ;  and 
although  he  knew  it  to  be  no  bezoar-stone,  it  is  not  material,  for  every 
one  in  selling  his  wares  will  affirm  that  his  wares  are  good,  or  the  horse 
which  he  sells  is  sound  ;  yet  if  he  does  not  warrant  them  to  be  so,  it  is 
no  cause  of  action,  and  the  warranty  ought  to  be  made  at  the  same  time 
of  the  sale;  as  F.  N.  B.  94  c.  and  98  b.,  5  Hen.  7,  pi.  41  ;  9  Hen.  6, 
pi.  53  ;  12  Hen.  4,  pi.  1 ;  42  Aff.  8  ;  7  Hen.  4,  pi.  15.  Wherefore,  for- 
asmuch as  no  warranty  is  alleged,  they  held  the  declaration  to  be  ill. 

Anderson  to  the  contrary;  for  the  deceit  in  selling  it  for  a  bezoar, 
whereas  it  was  not  so,  is  cause  of  action. —  But,  notwithstanding,  it 
was  adjudged  to  be  no  cause,  and  the  judgment  was  reversed. 


SJSOT.  l]  jendwine  v.  slade.  607 


BUTTERFIELD  v.  BURROUGHS. 

In  the  Queen's  Bench,  Teinity  Teem,  1706. 

[Reported  in  1  Salkeld,  211.] 

The  plaintiff  declared  that  the  defendant  sold  him  a  horse  such  a 
day  and  at  such  a  place,  cb  adtunc  &  ibidem  warvantizatnt  equina 
prcedict.,  to  be  sound,  wind  and  limb,  whereupon  he  paid  his  money, 
and  avers  the  horse  had  but  one  eye,  etc.  The  defendant  pleaded 
non  warrantizavit ;  upon  which  there  was  a  verdict  for  the  plaintiff; 
and  now  in  arrest  of  judgment  it  was  objected,  1st,  That  the  want  of 
an  eye  is  a  visible  thing,  whereas  the  warranty  extends  only  to  secret 
infirmities.1  But  to  this  it  was  answered  and  resolved  by  the  court, 
that  this  might  be  so,  and  must  be  intended  to  be  so,  since  the  jury 
have  found  the  defendant  did  warrant.  2d  Obj.,  As  the  warranty  is 
here  set  forth,  it  might  be  at  a  time  after  the  sale  ;  whereas  it  ought  to 
be  part  of  the  very  contract,  and  therefore  it  is  always  alleged  warranli- 
za/ido  reddidit.  Sed  non  allocatur ;  for  the  payment  was  afterwards, 
and  it  was  that  completed  the  bargain,  which  was  imperfect  without  it. 


JENDWINE   v.  SLADE. 

At  Nisi  Prids,  Trinity  Term,  1797. 

[Reported  in  2  Espinasse,  572.] 

Tnis  was  an  action  brought  to  recover  damages  on  the  sale  of  two 
pictures,  one  of  which  was  said  to  be  a  Sea-piece  by  Claude  Lorraine, 
the  other  a  Fair  by  Teniers,  which  the  defendant  had  sold  to  the  plain- 
tiff as  originals,  when  in  fact  they  were  copies. 

The  defence  relied  on  was,  that  the}-  were  sold  under  a  catalogue, 
not  amounting  to  an  absolute  warranty,  but  upon  which  the  buyer  was 
to  exercise  his  own  judgment ;  and  further,  that  a  bill  had  been  filed 
by  the  defendant  two  years  ago,  to  compel  the  plaintiff'  to  complete  the 
sale  ;  to  which  he  had  put  in  no  answer,  but  paid  the  money,  and  that 
he  therefore  could  not  now  seek  to  rescind  the  contract  after  such 
acquiescence. 

The  plaintiff's  counsel  answered  this  objection  by  insisting,  that  the 
name  of  the  artist  put  opposite  any  picture  in  a  catalogue  was  a  war- 

1  "Brian.  If  a  man  sells  mo  a  horse,  and  warrants  that  ho  lias  two  eyes,  if  he 
has  not  I  shall  not  have  an  action  of  deceit  for  I  could  know  this  at  the  beginning/' 
Y.  B.  11  F.dw.  IV.  6   10. 

"And  the  distinction  is  taken  where  I  sell  a  horse  that  has  no  eye,  there  no  action 
lies.  I  otherwise  whore  lie  has  a  counterfeit  false  and  bright  eve."  Southerue  v.  Howe 
2  Kolle,  5.    See  also  Y.  B.  13  Hy,  IV.  1.  4. 


608  POWER    V.    BARHAM.  [CHAP.  V. 

ranty ;  and  if  the  article  sold  did  not  correspond  with  it,  it  avoided  the 
sale  ;  and  as  to  the  transaction  in  respect  to  paving  the  money,  that  the 
plaintiff  was  deceived,  but  had  brought  his  action  as  soon  as  he  dis- 
covered the  fraud. 

Several  of  the  most  eminent  artists  and  picture  dealers  were  called, 
who  differed  in  their  opinions  respecting  the  originality  of  the  pictures. 

When  the  evidence  was  closed, 

Lord  Kenton  said  :  It  was  impossible  to  make  this  the  case  of  a 
warranty  ;  the  pictures  were  the  work  of  artists  some  centuries  back,  and 
there  being  no  way  of  tracing  the  picture  itself,  it  could  only  be  matter 
of  opinion  whether  the  picture  in  question  was  the  work  of  the  artist 
whose  name  it  bore,  or  not.  What  then  does  the  catalogue  import? 
That,  in  the  opinion  of  the  seller,  the  picture  is  the  work  of  the  artist 
whose  name  he  has  affixed  to  it.  The  action  in  its  present  shape  must 
go  on  the  ground  of  some  fraud  in  the  sale.  But  if  the  seller  only 
represents  what  he  himself  believes,  he  can  be  guilty  of  no  fraud.  The 
catalogue  of  the  pictures  in  question  leaves  the  determination  to  the  judg- 
ment of  the  buyer,  who  is  to  exercise  that  judgment  in  the  purchase. 

With  respect  to  the  bringing  of  the  action  his  Lordship  added,  that  if 
any  fraud  has  been  committed  in  a  sale,  if  the  party  comes  recently 
after  discovery  of  the  deception,  he  is  not  barred  by  circumstances 
having  taken  place,  such  as  were  stated. 

The  cause  was  referred  to  arbitration. 

Erskine  and  Lawes,  for  the  plaintiff. 

Law  and  Fielding,  for  the  defendant. 


POWER  v.   BARHAM. 
In  the  King's  Bench,  January  14,  1836. 

[Reported  in  4  Adofphm  $•  Ellis,  473.] 

Assumpsit.  The  declaration  stated  that,  in  consideration  that  the 
plaintiff,  at  the  defendant's  request,  would  buy  of  him  four  pictures  at  a 
certain  price,  to  wit.  &c,  the  defendant  "  promised  the  plaintiff  that  the 
said  pictures  were  painted  by  a  certain  artist  or  master  in  painting,  called 
or  named  Canaletti,  otherwise  Canaletto."  Breach,  that  the  said  pic- 
tures "  were  not,  nor  was  either  of  them,  painted  by  the  said  artist  or 
master  called  or  named  Canaletti,  otherwise  Canaletto,"  whereby  the 
said  pictures  were  and  are  of  little  or  no  use,  &c,  and  the  plaintiff 
Lost- the  benefits,  &c.  Plea,  non  assumpsit.  On  the  trial  before  Cole- 
ridge, J.,  at  the  sittings  in  Middlesex  after  last  term,  it  appeared  that 
the  defendant  sold  the  pictures  to  the  plaintiff  for  £100,  and,  at  the 
time  of  the  sale,  gave  the  following  bill  of  parcels  and  receipt :  — 


SECT.  L]  POWER   V.    BARHAM.  609 

Mr.  N.  Power. 

Bought  of  J.  Barhani. 
May  14th,  1832. 

Four  pictures,  Views  in  Venice,  Canaletto,  £100  00 
Settled  by  two  pictures    £  50  00 
And  a  bill  at  five  months     110  00 
£160  00 
J.  Barham. 

A  carver  and  gilder,  who  had  been  employed  by  the  plaintiff  to  pro- 
cure original  pictures  for  him,  gave  evidence  of  previous  representa- 
tions by  the  defendant  to  him  and  to  the  plaintiff,  that  the  pictures  were 
genuine  ;  some  doubt,  however,  was  raised  as  to  the  expressions  actually 
used.  The  witness  stated  that  the  pictures  were  in  the  manner  of  Cana- 
letti,  and,  at  the  time  of  the  sale,  appeared  to  him  worth  the  money.  A 
witness  experienced  in  paintings  stated  that  he  considered  the  pictures 
not  to  be  Canaletti's,  and  valued  them  at  about  £8  each;  and  some 
other  evidence  was  given  on  this  point.  For  the  defendant  it  was  con- 
tended that  the  bill  of  parcels  was  not  a  warranty,  but  only  an  expres- 
sion of  opinion  ;  and  Jendwine  v.  Slade,  2  Fsp.  N.  P.  C.  572.  was  cited. 
The  learned  judge,  in  summing  up,  told  the  jury  that  the  pictures  were 
admitted  not  to  be  Canaletti's,  and  that  the  only  question  on  the  plead- 
ings was  whether  the  promise  was  made  ;  and  he  submitted  to  their 
consideration,  upon  the  whole  of  the  evidence,  whether  the  defendant 
had  made  a  representation,  as  part  of  his  contract,  that  the  pictures 
were  genuine,  not  using  the  name  of  Canaletti  as  matter  of  description 
merely,  or  as  an  expression  of  opinion  upon  something  as  to  which  both 
parties  were  to  exercise  a  judgment,  but  taking  upon  himself  to  repre- 
sent that  the  pictures  were  Canaletti's.  His  Lordship  noticed  the  argu- 
ment on  behalf  of  the  defendant,  as  to  the  bill  of  parcels  ;  and  said  that 
the  words  of  Lord  Kenyon,  in  the  case  referred  to,  must  be  considered. 
not  as  a  general  rule  of  law,  but  as  a  direction  to  the  jury  on  the  circum- 
stances of  that  case.  The  jury  found  a  verdict  for  the  plaintiff,  saying, 
"  We  think  the  bill  of  parcels  is  a  warranty." 

Lord  Denman,  C.  J .  I  thinkthat  the  case  was  correctly  left  to  the  jury. 
We  must  take  the  learned  judge  to  have  stated  to  them  that  the  language 
of  Lord  Kenyon  in  Jendwine  v.  Slade.  supra,  was  merely  the  intimation 
of  his  opinion  upon  such  a  contract  as  was  then  before  him.  It  may  lie 
true  that,  in  the  case  of  very  old  pictures,  a  person  can  only  express  an 
opinion  as  to  their  genuineness  ;  and  that  is  hud  down  by  Lord  Kenyon 
in  the  case  referred  to.  But  the  case  here  is  that  pictures  are  sold  with 
a  bill  of  parcels  containing  the  words  wt  Four  Pictures.  Views  in  Venice. 
Canaletto."  Now  words  like  these  must  derive  their  explanation  from 
the  ordinary  way  in  which  such  matters  are  transacted.  It  was,  there- 
fore, for  the  jury  to  say,  under  all  the  circumstances,  what  was  the 
effect  of  the  words,  and  whether  they  implied  a  warranty  of  genuine- 
ness, or  conveyed  only  a  description,  or  an  expression  of  opinion.     I 

39 


610  MARGETSON    V.    WRIGHT.  [CHAP.  V, 

think  that  their  finding  was  right :  Canaletti  is  not  a  very  old  painter.1 
But,  at  all  events,  it  was  proper  that  the  bill  of  parcels  should  go  to  the 
jury  with  the  rest  of  the  evidence.  Mule  refused,2 


MARGETSON   v.  WRIGHT. 
In  the  Common  Pleas,  May  12,  1832. 

[Reported  iti  8  Bingham,  454.] 

The  defendant  sold  the  plaintiff  a  race-horse  called  "  Sampson," 
which  he  warranted  sound,  wind  and  limb,  at  the  time  of  sale.  Some 
time  after  the  sale,  the  horse  became  lame  ;  whereupon  the  plaintiff 
sued  the  defendant  upon  his  warranty,  and  obtained  a  verdict. 

It  appearing,  however,  that  the  subsequent  lameness  was  occasioned 
by  a  splint,  the  existence  of  which  was  known  to  the  plaintiff  at  the 
time  of  sale,  the  defendant  obtained  a  rule  absolute  for  a  new  trial. 
See  7  Bingh.  603. 

Upon  the  second  trial,  the  plaintiff  gave  evidence  as  to  the  nature 
and  consequences  of  various  kinds  of  splints  ;  that  a  splint  may  or  may 
not  be  the  efficient  cause  of  lameness,  according  to  the  position  which  it 
occupies,  and  its  size  or  extent;  and  that  "Sampson's"  splint  was  in 
a  very  bad  situation,  as  it  pressed  upon  one  of  the  sinews,  and  would 
naturally  produce,  when  the  horse  was  worked,  inflammation  of  the 
sinew,   and  consequent  lameness. 

The  jury  again  found  a  verdict  for  the  plaintiff,  when  the  learned 
judge  who  presided  (Vaughan,  B.),  requesting  them  to  tell  him 
distinctly,  whether,  in  their  judgment,  the  horse  was  sound  ;  or,  if 
unsound,  whether  the  unsoundness  arose  from  the  splint  of  which 
evidence  had  been  given;  the  jury  said,  "that  although  the  horse 
exhibited  no  symptoms  of  lameness  when  the  contract  was  made,  he 
had  upon  him  at  the  time  of  the  contract,  the  seeds  of  unsoundness 
arising  from  the  splint."     Whereupon 

Wilde,  Serjt.,  obtained  a  rule  nisi  for  a  new  trial,  upon  the 
ground,  that  the  learned  Baron  ought  to  have  directed  a  verdict  for 
the  defendant. 

Spankie,  Serjt.,  showed  cause.  Cur.  adv.  vidt. 

Tindal,  C.  J.  This  was  an  action  upon  a  warranty,  in  which  the 
defendant  warranted  the  horse  to  be  sound,  wind  and  limb,  "at  this 
lime,"  —  that  is,  at  the  time  of  the  warranty  made.     The  jury  at  the 

1  Canaletti  died  in  1768,  Claude  Lorraine  and  Teniers  (the  younger),  the  painters 
mentioned  in  Jendwine  *'.  Slade,  died,  the  first  in  1682,  the  latter  in  1694. 

-  LlTTLEDALE  and  Williams,  J.J.,  delivered  brief  concurring  opinions.  Cole- 
ridge, J.,  also  concurred. 


SECT.  I.]  MABGETSON    V.    WEIGHT.  Gil 

trial  found  a  verdict  for  the  plaintiff.  The  learned  judge  request! id 
the  jury  to  tell  him  distinctly  whether,  in  their  judgment,  the  horse  was 
sound;  or,  if  they  believed  him  to  be  unsound,  whether  that  unsound- 
ness arose  from  the  splint  of  which  evidence  had  been  given.  In 
answer  to  which  inquiry,  the  jury  said,  "That  although  the  horse 
exhibited  no  symptoms  of  lameness  at  the  time  when  the  contract  whs 
made,  he  had  then  upon  him  the  seeds  of  unsoundness  arising  from  the 
splint."  The  question  upon  this  application  for  a  new  trial  is,  Whether 
this  finding  of  the  jury  sanctions  the  verdict  for  the  plaintiff  or  not; 
that  is,  whether  the  court  can  see  with  sufficient  clearness  that  the  jury 
thought  that  the  horse  was  unsound  at  the  time  of  the  contract,  and 
consequently  that  the  warranty  was  broken.  It  appears  that  the  evi- 
dence before  the  jury  was.  in  substance,  that  a  splint  might  or  might 
not  be  the  efficient  cause  of  lameness,  according  to  the  position  which 
it  occupied,  and  its  size  and  extent;  that  this  splint  was  in  a  very  bad 
situation,  as  it  pressed  upon  one  of  the  sinews,  and  would  naturally 
produce,  when  the  horse  was  worked,  inflammation  of  the  sinew,  and 
consequent  lameness.  The  jury,  therefore,  drawing  their  attention  to 
the  particular  splint  to  which  the  evidence  related,  appear  to  us  to  have 
intended  that  this  individual  splint,  though  it  did  not  at  the  moment 
produce  lameness,  was,  at  the  time  of  the  contract,  of  that  sort  and  in 
that  situation  as  to  contain,  in  their  language,  the  seeds  of  unsound- 
ness,—  that  is,  the  efficient  cause  of  the  subsequent  lameness.  If  the 
lameness  complained  of  had  proceeded  from  a  new  or  different  splint, 
or  from  the  old  splint  taking  a  new  direction  in  its  growth,  so  as  to 
affect  a  sinew,  not  having  pressed  on  one  before,  such  a  lameness 
would  not  have  been  within  the  warranty,  for  it  would  not  have  con- 
stituted a  present  unsoundness  at  the  time  of  the  warranty  made.  But 
the  jury  find  that  the  very  splint  in  question  is  the  efficient  cause  of 
lameness.  On  the  former  motion,  our  attention  was  not  called  to  any 
evidence,  if  any  such  was  given,  as  to  the  different  nature  and  conse- 
quences of  splints  which  the  learned  judge  reports  to  have  been  given 
upon  the  present  occasion  ;  but  it  now  appears  that  some  splints  cause 
lameness,  and  others  do  not,  and  that  the  consequences  of  a  splint  can- 
not be  apparent  at  the  time,  like  the  loss  of  an  eye  or  any  visible  blemish 
or  defect,  to  a  common  observer.  We  therefore  think  that,  by  the  terms 
of  this  written  warranty,  the  parties  meant  this  was  not  a  splint  at  that 
time  which  would  be  the  cause  of  future  lameness,  and  that  the  jury 
have  found  that  it  was.  We  therefore  think  that  the  warranty  was 
broken,  and  that  the  posted  must  be  delivered   to  the  plaintiff. 

Rule  discharged. 


612  Mccormick  v.  kelly.         [chap. 


CYRUS   H.    McCORMICK   and   Another  v.   J.  J.    KELLY. 

Minnesota    Supreme  Court,  July  15,  1881. 

[Reported  in  28  Minnesota,  135.] 

Appeal  from  order  of  District  Court,  county  of  Brown. 

John  Lind,  for  appellant. 

B.  F.  Webber,  for  respondents. 

Dickinson,  J.  This  action  was  brought  to  recover  the  amount  of  a 
promissory  note  made  by  the  defendant  to  the  plaintiffs  for  part  of 
the  purchase-price  of  a  harvester  purchased  by  the  former  from  the 
latter.  The  making  of  the  note  is  not  in  issue;  the  only  defence 
asserted  being  in  the  nature  of  a  counter-claim  for  damages  from 
an  alleged  breach  of  warranty,  on  the  part  of  plaintiffs,  in  respect  to 
the  harvester. 

By  his  answer  the  defendant  avers  that  he  first  took  the  machine  on 
trial,  and  upon  the  trial  it  proved  to  he  unsatisfactory  and  would  not 
do  good  work,  and  that  he  notified  the  plaintiffs  to  take  the  machine 
away  ;  whereupon  the  plaintiffs  promised  and  agreed  with  the  defend- 
ant to  put  the  machine  in  good  order  ;  to  furnish  certain  parts  of  the 
machine  new.  and  warranted  the  machine  to  be  well  made,  of  good 
material,  durable,  and  not  liable  to  break  or  get  out  of  order;  that  it 
would  cut  and  elevate  grain  as  well  as  any  other  machine,  and  was  in 
all  respects  a  first-class  machine,  and  capable  of  doing  first-class  and 
satisfactory  work  as  a  harvesting  machine  ;  relying  upon  which  prom- 
ises, agreements,  and  warranties,  defendant  purchased  the  machine, 
giving  the  note  in  question. 

The  answer  further  alleges  that  the  plaintiffs  refused  to  put  the 
machine  in  good  order,  or  to  furnish  new  parts  for  the  machine,  and 
sets  forth  a  breach  of  the  terms  of  the  warranty. 

By  a  reply  the  plaintiffs  put  in  issue  the  making  of  a  warranty,  as 
well  as  the  agreement  to  furnish  new  parts  for  the  machine.  The  evi- 
dence on  the  part  of  the  defendant  tended  to  prove  that  he  got  the 
machine  for  trial  before  the  commencement  of  the  harvest  of  1878  ; 
that  it  did  not  work  well,  although  he  used  it  to  cut  about  70  acres  of 
grain  ;  that  he  often  made  complaint  to  the  agents  of  the  plaintiffs, 
who  urged  him  to  keep  the  machine,  and  do  the  best  he  could  with  it; 
and  that  after  harvest  the  agent  of  plaintiffs  represented  that  it  was 
a-  good  a  machine  as  there  was  in  the  market,  and  he  would  make 
it  so;  that  it  was  all  right,  and  would  do  as  good  work  as  any 
machine  in  market,  and  it  should  be  fixed  up  in  first-class  order,  with 
the  new  parts  referred  to  in  the  answer :  that  the  defendant  purchased 
t'n  machine  then,  and  gave  the  note,  relying,  as  he  testifies,  upon  the 
representations  made.  The  evidence  tends  to  show  that  at  this  time 
thi  defendant  knew  the  defects  in  the  machine  of  which  he  now 
complai 


SECT.  I.]  MCCORMICK    V.    KELLY.  613 

At  the  request  of  the  defendant  the  court  instructed  the  jurv  as 
follows:  -'If  the  jury  find,  from  the  evidence,  that  the  plaintiffs 
expressly  warranted  the  machine  for  which  the  note  in  suit  was  given. 
and  that  tin'  defendant  was  induced  by  such  warranty  to  execute  and 
deliver  said  note,  the  plaintiffs  are  Liable  for  all  damages  which  the 
defendant  has  sustained  by  reason  of  the  breach  of  such  warranty ; 
and  this  liability  is  not  affected  by  the  fait  that  the  defendant  tried 
said  machine  before  the  making  of  said  warranty."  To  this  the 
plaintiffs  excepted. 

At  the  request  of  the  plaintiffs  the  court  instructed  the  jury  as 
follows:  lt  I  charge  you  that  where  a  general  warranty  is  given  on 
the  sale  of  a  machine,  defects  that  were  apparent  at  the  time  of 
making  of  the  bargain,  and  were  fully  known  to  the  purchaser,  can- 
not be  relied  upon  as  a  defence  to  a  note  given  for  such  machine, 
when  the  purchaser  has  such  knowledge  at  the  time  of  giving  the 
same.  (2)  If  you  find  that  the  machine  was  taken  on  trial,  under  a 
contract  of  purchase,  and  that,  after  having  fully  tried  it,  the  defend- 
ant gave  his  note  therefor,  he  cannot  offset  against  any  such  note 
damages  arising  from  any  alleged  breach  of  warranty  against  defects 
known  to  the  defendant  at  the  time  of  settlement  and  giving  of  the 
note." 

The  court  further  instructed  the  jury  in  the  following  language: 
"  A  vendor  may  warrant  against  a  defect  that  is  patent  and  obvious. 
.  .  .  You  sell  me  a  horse,  and  you  warrant  that  horse  to  have  four 
legs,  and  he  has  only  three.  I  will  take  your  word  for  it.  [The  court 
then  read  in  the  hearing  of  the  jury  the  following  from  Addison  on 
Contracts :  '  When  a  general  warranty  is  given  on  a  sale,  defects 
which  were  apparent  at  the  time  of  the  making  of  the  bargain,  and 
were  known  to  the  purchaser,  cannot  be  relied  on  as  a  ground  of 
action.  If  one  sells  purple  to  another,  and  saith  to  him,  "  This  is 
scarlet,"  the  warranty  is  to  no  purpose,  for  that  the  other  may  per- 
ceive this  ;  and  this  gives  no  cause  of  action  to  him.  To  warrant  a 
thing  that  may  be  perceived  at  sight  is  not  good.']  Gentlemen,  that 
is  not  the  law  of  this  State." 

The  court  erred  in  these  instructions  to  the  jury.  It  has  always 
been  held  that  a  general  warranty  should  not  be  considered  as  apply- 
ing to  or  giving  a  cause  of  action  for  defects  known  to  the  parties  at 
the  time  of  making  the  warranty  ;  and  both  the  weight  of  authority 
and  reason  authorize  this  proposition,  viz.  :  that  for  representations 
in  the  terms  or  form  of  a  warranty  of  personal  property  no  action  will 
lie  on  account  of  defects  actually  known  and  understood  by  the  pur- 
chaser at  the  time  of  the  bargain.  Marjetson  v.  Wright,  7  Bing.  603  : 
Dyer  y.  Ilargrave,  10  Yes.  Jr.  506;  Schayler  r.  Russ,  2  Caines'  R. 
202;  Kenner  /•.  Harding,  85  111.  2G4  ;  Williams  v.  Ingam,  21  Texas, 
300;  Marshall  v.  Drawhorn,  27  G-a.  27"> :  Shewalter  v.  Ford.  3  I  Miss. 
417;  Brown  v.  Bigelow,  10  Allen.  212:  Story  on  ('out.  *  830;  Beuj. 
on  Sales  (2d  ed.),  502;   Chitty  on  Cont.  (llth  Am.  ed),  644. 


61-4  Mccormick  v.  kelly.  [chap.  v. 

A  warranty,  for  the  breach  of  the  conditions  of  which  an  action  ex 
contractu  for  damages  can  be  maintained,  must  be  a  legal  contract, 
and  not  a  mere  naked  agreement.  It  must  be  a  representation  of 
something  as  a  fact,  upon  which  the  purchaser  relies  and  by  which  he 
is  induced,  to  some  extent,  to  make  the  purchase,  or  is  influenced  in 
respect  to  the  price  or  consideration.  Oneida  Manuf'g  Society  v. 
Lawrence,  4  Cow.  440  ;  Lindsey  v.  Lindsey,  34  Miss.  432  ;  Blythe 
v.  Speake,  23  Texas,  429  ;  Adams  v.  Johnson,  15  111.  34  ;  Ender  v. 
Scott,  11  111.  35  ;  Hawkins  v.  Berry,  5  Gil.  36;  2  Add.  on  Cont.  626 
(Morgan's  ed.). 

In  the  nature  of  things  one  cannot  rely  upon  the  truth  of  that 
which  he  knows  to  be  untrue  ;  and  to  a  purchaser  fully  knowing  the 
facts  in  respect  to  the  property,  misrepresentation  cannot  have  been 
an  inducement  or  consideration  to  the  making  of  the  purchase,  ami 
hence  could  have  been  no  part  of  the  contract. 

It  lias  often  been  said  that  a  general  warranty  may  cover  patent 
defects,  and  it  has  led  to  some  misapprehension  of  the  law.  The 
proposition  is  strictly  true  ;  but,  as  was  said  by  the  court  in  Marshall 
v.  Drawhorn,  supra,  it  is  "  confined  to  those  cases  of  doubt  and  diffi- 
culty where  the  purchaser  relies  on  his  warranty  and  not  on  his  own 
judgment."  It  has  no  application  to  the  case  of  a  purchaser  who 
k:">/cs  the  defects  in  the  property  and  the  untruthfulness  of  the  ven- 
dor's representations.  We  do  not,  however,  mean  to  say  there  Mnay 
not  be  a  warranty  against  the  future  consequences  or  results  from  even 
known  defects.  The  fact  that  a  portion  of  the  charge  given  at  the 
request  of  the  plaintiffs  stated  correctly  the  legal  principle  under  con- 
sideration, cannot  affect  the  result.  In  fact,  that  the  instructions  to 
the  jury  were  thus  inconsistent,  and  calculated  to  mislead  or  confuse 
rather  than  inform  and  guide  the  jury,  is  in  itself  a  sufficient  reason 
why  the  verdict  should  not  stand.  Vanslyck  v.  Mills,  34  Iowa,  375  ; 
C,  P>.,  &  Q.  R.  Co.  v.  Payne,  49  111.  499. 

For  the  reasons  already  indicated,  a  new  trial  must  be  awarded, 
and  it  is  unnecessary  to  consider  whether  the  verdict  is  supported  by 
the  evidence  presented  in  this  case  ;  nor  is  it  necessary  to  consider 
some  other  alleged  errors  involving  no  doubtful  questions  of  law,  and 
which  are  not  likely  to  recur  upon  another  trial.  Anticipating,  how- 
ever, that  upon  the  retrial,  as  in  the  former  one,  the  question  may 
arise  as  to  the  authority  which  an  agent  empowered  to  sell  machinery 
of  the  kind  in  question  may  be  presumed  to  possess  in  respect  to  the 
warranting  of  the  property,  in  the  absence  of  any  proof  of  express 
authority  we  will  pass  upon  the  question  as  it  is  presented  by  the 
facts  in  this  case.  For  the  purposes  of  this  case  it  is  sufficient  to 
say  thai  an  agent  engaged  for  his  principal  in  the  business  of  selling 
personal  property,  is  presumed  to  be  authorized  to  sell  with  warranty. 
It  may  be,  however,  that  if  the  property  be  of  a  kind  not  usually  sold 
wi'h  warranty,  no  such  presumption  will  be  exercised.  Nelson  v. 
Cowing,  <;  Ilili,  336;    Smfth  v.  Tracy,  36   N.  Y.  79;    Schuchardi  v. 


SECT.  I.]  WOLCOTT,    ETC.    CO.    V.    MOUNT.  615 

Aliens,  1  Wall.  359;  Upton  v.  Suffolk  Co.  Mills,  11  Gush.  586; 
Boothby  v.  Scales,  27  Wis.  626  ;  Ahern  v.  Goodspeed,  72  N.  V.  108  ; 
Murray  v.  Brooks,  41  Iowa,  45.  In  the  case  of  such  an  agent 
engaged  in  selling  harvesters  without  proof  of  express  authority  to 
warrant,  the  court  will  presume  such  authority. 

The   order   refusing    a   new  trial  is  reversed,  and    a   new  trial   is 
awarded.1 


WOLCOTT,  JOHNSON,  &  CO.  v.  LEWIS  D.  MOUNT. 
New  Jeksey  Supreme  Court,  June  Term,  1873. 

[Reported  in  7  Vroom,  262.] 

On  certiorari  to  the  Monmouth  Pleas,  on  the  trial  of  an  appeal  from 
the  judgment  of  a  justice  of  the  peace. 

The  cause  was  argued  in  this  court  on  the  following  statement  of  the 
case  : 

On  the  trial  of  the  appeal,  Mount,  the  appellee  and  plaintiff  before 
the  justice,  proved  that  Wolcott,  Johnson,  &  Co.  were  merchants,  keep- 
ing a  store  of  general  merchandise,  in  the  county  of  Monmouth,  and 
that,  among  other  articles,  they  advertised  and  kept  agricultural  seeds 
for  sale,  and  sold  seeds.  Mount  went  to  their  store  and  asked  one  of 
the  partners,  Bloom  field  Wolcott,  for  early  strap-leaf  red  top  turnip 
seed,  and  Wolcott  showed  him,  and  sold  to  him,  seed  which  Wolcott 
told  him  was  early  strap- leaf  red-top  turnip  seed,  and  sold  it  to  Mount 
(two  pounds)  as  such,  and  Mount  paid  him  cents  for  the 

same.     Mount  sowed  the  same  on  acres  of  his  ground, 

which  he  had  prepared  with  care  and  great  expense  for  the  purpose. 
Mount  had  been  in  the  habit,  year  alter  year,  to  sow  early  strap-leaf 
red-top  turnip  seed,  to  produce  turnips  for  the  early  New  York  market, 
such  kind  and  description  of  turnips  yielding  a  large  profit,  and  he.  at 
time  of  purchase,  stated  that  he  wished  this  description  and  kind  of 
seed  for  that  purpose. 

The  seed  sold  to  Mount  b}'  Wolcott  was  sown  upon  the  ground  pre- 
pared for  same  by  Mount,  and  the  turnips  produced  therefrom  were 
not  early  strap-leaf  rod-top  turnips,  but  turnips  of  a  different  kind  and 
description,  to  wit,  Russia,  late,  and  not  salable  in  market,  and  only 
fit  for  cattle,  and  he  lost  his  entire  crop.     The  plaintiff  proved  that  the 

1  "Although  the  general  rule  is  that  a  warranty  will  not  extend  to  guard  against 
defects  that  are  plain  and  obvious  to  the  senses  of  the  purchaser,  and  which  require 
no  skill  to  detect,  tins  has  no  application  to  cases  where  the  vendor  nses  art  to  conceal, 
and  dues  conceal,  such  defects.  Chadsey  v.  Greene,  :>4  Conn.  5G2;  Robertson  v. 
Clarkson,  9  B.  Mon  507;  Grant  v.  Shelton,  3  B.  Mon.  423  ;  Irving  v.  Thomas,  18  Me. 
414.  See  also  Kohl  >\  Lindley,  39  111.  201."  Kenner  v.  Harding,  85  111  264,  268. 
See  further, Tabor  v.  Peters,  74  Ala.  90;  Moncrief  v  Wilkinson,  93  Ala.  373;  Fletcher 
v.  Young,  69  Ga.  591  ;  Bennett  v.  Buchan,  70  N.  V.  386;  i'innev  v.  Andrus,  41  Vfc 
631. 


616  WOLCOTT,   ETC.   CO.   V.   MOUNT.  [CHAP.  V. 

seed  sold  him  by  Wolcott  was  not  early  strap-leaf  red-top  turnip  seed, 
but  seed  of  a  different  kind  and  description,  to  wit,  Russia  turnip  seed, 
and  that  it  produced  no  profit  to  him,  and  that  early  strap-leaf  red- 
top  turnip  seed  on  same  ground  in  other  years  had  produced  large  pro- 
fits to  Mount,  and  on  adjoining  ground,  prepared  in  same  way,  the 
same  year,  had  produced  great  profits  to  the  owner,  and  that  Mount 
was  damaged  thereby. 

It  is  agreed  that  Wolcott  did  not  know  that  the  seed  he  sold  Mount 
was  not  early  strap-leaf  red-top  turnip  seed,  and  that  he  did  not  sell 
the  seed  to  him  fraudulently,  the  said  Wolcott  having  purchased  the 
seed  for  early  strap-leaf  red-top  turnip  seed.  It  is  also  agreed  that  this 
kind  of  turnip  seed  cannot  be  known  and  distinguished,  by  the  exam- 
ination through  sight  or  touch,  from  Russia  or  other  kinds,  but  only  by 
the  kind  of  turnips  it  produces  after  sowing,  can  it  be  known. 

The  Court  of  Common  Pleas  gave  judgment  for  the  plaintiff  below  for 
$99.12  damages. 

Argued  at  February  Term,  1873,  before  Justices  Bedle,  Daluimple, 
and  Depue. 

For  the  plaintiff  in  certiorari,  IT.   G.  Clayton. 

For  the  defendant,  B.  Gummere. 

Depue,  J.  The  action  in  this  case  was  brought  on  a  contract  of 
warranty  and  resulted  in  a  judgment  against  the  defendants  in  the 
action  for  damages.  > 

Two  exceptions  to  the  proceedings  are  presented  by  the  brief  sub- 
mitted. The  first  touches  the  right  of  the  plaintiff  to  recover  at  all. 
The  second  the  measure  of  damages. 

In  the  absence  of  fraud  or  a  warranty  of  the  quality  of  an  article,  the 
maxim,  caveat  emptor,  applies.  As  a  general  rule,  no  warranty  of  the 
goodness  of  an  article  will  be  implied  on  a  contract  of  sale. 

It  has  been  held  by  the  courts  of  New  York,  that  no  warrant}'  what- 
ever would  arise  from  a  description  of  the  article  sold.  Seixas  v. 
Woods,  2  Caines,  48  ;  Snell  v.  Moses,  1  Johns.  96  ;  Sweet  v.  Colgate, 
20  Johns.  196.  In  these  cases  the  defect  was  not  in  the  qualit}',  but  the 
article  delivered  was  not  of  the  species  described  in  the  contract  of  sale. 

In  the  well  known  case  of  Chandelor  v.  Lopus,  Cro.  Jac.  4,  it  was 
decided  that  a  bare  affirmation  that  a  stone  sold  was  a  bezoar  stone, 
when  it  was  not,  was  no  cause  of  action. 

The  cases  cited  fairly  present  the  negative  of  the  proposition  on  which 
the  plaintiff's  right  of  action  depends.  Chandelor  r.  Lopus  was  decided 
on  the  distinction  between  actions  on  the  case  in  tort  for  a  misrepre- 
sentation, in  which  a  scienter  must  be  averred  and  proved  and  actions 
upon  the  contract  of  warranty.  1  Smith's  Lead.  Cas.  283.  Chancellor 
Kent,  who  delivered  the  opinion  in  Seixas  v.  Woods,  in  his  Commen- 
taries expresses  a  doubt  whether  the  maxim,  caveat  emptor,  was  cor- 
ivetlv  applied  In  that  case,  inasmuch  as  there  was  a  description  in 
writing  of  the  article  sold,  from  which  a  warranty  might  have  been 
inferred.     2  Kent,  47'J.     And  in  a  recent  case  before  the  Commission 


SECT.  I.]  WOLCOTT,    ETC.    CO.    V.    MOUNT.  617 

of  Appeals  of  New  York,  Earl,  C,  declared  that  Seixas  v.  Woods  had 
been  much  questioned  and  could  no  longer  he  regarded  as  authority  on 
the  precise  point.  Hawkins  v.  Pemberton,  51  N.  Y.  204.  In  the  later 
English  cases  some  criticism  has  been  made  upon  the  application  of  the 
term  warranty  to  representations  in  contracts  of  sale,  descriptive  of 
at  tides  which  are  known  in  the  market  by  such  description,  per  Lord 
Abinger  in  Chanter  v.  Hopkins,  4  M.  &  W.  404  ;  per  Erie,  C.  J.,  in 
Bannerman  v.  White,  10  C.  B.  n.  s.  844.  But  in  a  number  of  instances  it 
has  been  held  that  statements  descriptive  of  the  subject-matter,  if  in- 
tended as  a  substantive  part  of  the  contract,  will  be  regarded  in  the 
first  instance  as  conditions,  on  the  failure  of  which  the  other  party  may 
repudiate  in  toto,  by  a  refusal  to  accept  or  a  return  of  the  article,  if 
that  be  practicable,  or  if  part  of  the  consideration  has  been  received, 
and  rescission  therefor  has  become  impossible,  such  representations 
change  their  character  as  conditions  and  become  warranties,  for  the 
breach  of  which  an  action  will  lie  to  recover  damages.  The  rule  of  law 
is  thus  stated  by  Williams,  J.,  in  Behn  v.  Burness,  as  established  on 
principle  and  sustained  by  authority,  3  B.  &  S.  755. 

In  Bridge  v.  Wain,  1  Starkie,  504,  no  special  warrant}-  was  proved, 
but  the  goods  were  described  as  scarlet  cuttings,  an  article  known  in 
the  market  as  peculiar  to  the  China  trade.  In  an  action  for  breach  of 
warranty,  Lord  Ellenborough  held  that  if  the  goods  were  sold  by  the 
name  of  scarlet  cuttings,  and  were  so  described  in  the  invoice,  an 
undertaking  that  the}-  were  such  must  be  inferred.  In  Allan  v.  Lake,  18 
Q.  B.  5G0,  the  defendant  sold  to  the  plaintiff  a  crop  of  turnips,  described 
in  the  sold  note  as  Skirving's  Sweedes.  The  seed  having  been  sown, 
it  turned  out  that  the  greater  part  was  not  of  that  kind,  but  of  an  in- 
ferior kind.  It  was  held  that  the  statement  that  the  seeds  were  Skir- 
vino's  Sweedes,  was  a  description  of  a  known  article  of  trade  and  a 
warranty.  In  Josling  v.  Kingsford,  13  C  B.  sr.  s.  447,  the  purchaser 
recovered  damages  upon  a  contract  for  the  sale  of  oxalic  acid,  where 
the  jury  found  that  the  article  delivered  did  not,  in  a  commercial  sense, 
come  properly  within  the  description  of  oxalic  acid,  though  the  vendor 
was  not  the  manufacturer,  and  the  vendee  had  an  opportunity  of  inspec- 
tion (the  defect  not  being  discoverable  by  inspection),  and  no  fraud  was 
suggested.  In  Wieler  v.  Schillizzi,  17  C.  B.  619,  the  sale  was  of  kk  Cal- 
cutta linseed."  The  goods  had  been  delivered,  and  the  action  was  in 
form  on  the  warranty  implied  from  the  description.  The  jury  having 
found  that  the  article  delivered  had  lost  its  distinctive  character  as 
Calcutta  linseed,  by  reason  of  the  admixture  of  a  foreign  substance,  the 
plaintiff  recovered  his  damages  upon  the  warranty. 

The  doctrine  that  on  the  sale  of  a  chattel  as  being  of  a  particular 
kind  or  description,  a  contract  is  implied  that  the  article  sold  is  of  that 
kind  or  description,  is  also  sustained  by  the  following  English  cases  : 
Powell  y.  Morton,  2  Bing.  n.  s.  668  ;  Barr  v.  Gibson.  3  M.  &  W.  390; 
Chanter  v.  Hopkins,  4  M.  &  W.  399;  Nichol  v.  Godts,  10  Exch.  191  ; 
Gompcrtz  v.  Bartlett,  2  E.  &  B.  849  ;  Azemar  v.  Casella.  Law  Rep.  2  C.  P. 


618  WOLCOTT,    ETC.    CO.    V.    MOUNT.  [CHAP.  V. 

431,  G77;  and  has  been  approved  by  some  decisions  in  the  courts  of 
this  country.  Henshavv  v.  Robins,  9  Mete  83  ;  Borrekins  v.  Bevan, 
3  Rawle,  23  ;  Osgood  v.  Lewis,  2  Harr.  &  Gill,  495;  Hawkins  v.  Peui- 
berton,  51  N.  Y.  198. 

The  rhdit  to  repudiate  the  purchase  for  the  non-conformity  of  the 
article  delivered,  to  the  description  under  which  it  was  sold,  is  univer- 
sally conceded.  That  right  is  founded  on  the  engagement  of  the  ven- 
dor, bv  such  description,  that  the  article  delivered  shall  correspond  with 
the  description.  The  obligation  rests  upon  the  contract.  Substan- 
tially, the  description  is  warranted.  It  will  comport  with  sound  legal 
principles  to  treat  such  engagements  as  conditions  in  order  to  afford  the 
purchaser  a  more  enlarged  remedy,  by  rescission,  than  he  would  have 
on  a  simple  warranty  ;  but  when  his  situation  has  been  changed,  and 
the  remedy,  by  repudiation,  has  become  impossible,  no  reason  sup- 
ported by  principle  can  be  adduced,  why  he  should  not  have  upon  his 
contract  such  redress  as  is  practicable  under  the  circumstances.  In 
that  situation  of  affairs,  the  only  available  means  of  redress  is  by  an 
action  for  damages.  Whether  the  action  shall  be  technically  considered 
an  action  on  a  warranty,  or  an  action  for  the  non-performance  of  a  con- 
tract, is  entirely  immaterial. 

The  contract  which  arises  from  the  description  of  an  article  on  a  sale 
by  a  dealer  not  being  the  manufacturer,  is  not  in  all  respects  co-exten- 
sive with  that  which  is  sometimes  implied,  where  the  vendor  is  the 
manufacturer,  and  the  goods  are  ordered  by  a  particular  description, 
or  for  a  specified  purpose,  without  opportunity  for  inspection,  in  which 
case,  a  warranty,  under  some  circumstances,  is  implied  that  the  goods 
shall  be  merchantable,  or  reasonably  fit  for  the  purpose  for  which  they 
were  ordered.  In  general,  the  only  contract  which  arises  on  the  sale 
of  an  article  by  a  description,  by  its  known  designation  in  the  market, 
is  that  it  is  of  the  kind  specified.  If  the  article  corresponds  with  that 
description,  no  warranty  is  implied  that  it  shall  answer  the  particular 
purpose  in  view  of  which  the  purchase  was  made.  Chanter  v.  Hop- 
kins, 4  M.  &  W.  414;  Ollivant  v.  Bayley,  5  Q.  B.  288;  Windsor  v. 
Lombard,  18  Peck.  55;  Mixer  v.  Coburn,  11  Mete.  559;  Gossler  v. 
Eagle,  &c,  Co,  103  Mass.  331.  The  cases  on  this  subject,  so  produc- 
tive of  judicial  discussion,  are  classified  by  Justice  Mellor,  in  Jones 
v.  Just,  Law  Rep.,  3  Q.  B.  197.  Nor  can  any  distinction  be  main- 
tained between  statements  of  this  character  in  written  and  in  oral 
contracts.  The  arguments  founded  on  an  apprehension  that  where  the 
contract  is  oral,  loose  expressions  of  judgment  or  opinion  pending  the 
negotiations,  might  be  regarded  as  embodied  in  the  contract,  contrary 
to  the  intentions  of  parties,  is  without  reasonable  foundation.  It  is 
always  a  question  of  construction  or  of  fact,  whether  such  statements 
were  the  expression  of  a  mere  matter  of  opinion,  or  were  intended  to 
be  a  substantive  part  of  the  contract,  when  concluded.  If  the  contract 
is  in  writing,  the  question  is  one  of  construction  for  the  court.  Behn 
v.  Burness,  3  B.  &  S.  751.  If  it  be  concluded  by  parol,  it  will  be  for 
the  determination  of  the  jury,  from  the  nature  of  the  sale,  and  the  cir- 


SECT.  I.]  WOLCOTT,    ETC.    CO.    V.    MOUNT.  6 ID 

cu instances  of  each  particular  case,  whether  the  language  used  was  an 
expression  of  opinion,  merely  leaving  the  buyer  to  exercise  his  own 
judgment,  or  whether  it  was  intended  and  understood  to  be  an  under- 
taking which  was  a  contract  on  the  part  of  the  seller.  Lomi  v.  Tucker, 
4  C.  &  1'.  15  ;  De  Sewhanherg  v.  Buchanan,  o  C.  &  P.  343  ;  rower  v. 
Barham,  4  A.  &  B.  473.  In  the  case  last  cited,  the  vendor  sold  by  a 
bill  of  parcels,  "  four  pictures,  views  in  Venice  —  Canaletto  ;  "  it  was 
held  that  it  was  for  the  jury  to  say,  under  all  the  circumstances,  what 
was  the  effect  of  the  words,  and  whether  they  implied  a  warranty  of 
genuineness,  or  conveyed  only  a  description  or  an  expression  of  opin- 
ion, and  that  the  bill  of  parcels  was  properly  laid  before  the  jury  with 
the  rest  of  the  evidence. 

The  purchaser  may  contract  for  a  specific  article,  as  well  as  for  a 
particular  quality,  and  if  the  seller  makes  such  a  contract,  he  is  bound 
bv  it.  The  state  of  the  case  presented  shows  that  the  plaintiff  inquired 
for  seed  of  a  designated  kind,  and  informed  the  defendants  that  he 
wanted  it  to  raise  a  crop  for  the  New  York  market.  The  defendants 
showed  him  the  seed,  and  told  him  it  was  the  kind  he  inquired  for,  and 
sold  it  to  him  as  such.  The  inspection  and  examination  of  the  seed 
were  of  no  service  to  the  plaintiff.  The  facts  and  circumstances  at- 
tending the  transaction  were  before  the  court  below,  and  from  the 
evidence,  it  decided  that  the  proof  was  sufficient  to  establish  a  contract 
of  warranty.  The  evidence  tended  to  support  that  conclusion,  and  this 
court  cannot,  on  certiorari,  review  the  finding  of  the  court  below,  on  a 
question  of  fact,  where  there  is  evidence  from  which  the  conclusion 
arrived  at  may  be  lawfully  inferred.1 

Note.  —In  Kenner  v.  Harding,  85  111.  264,  2G8,  the  court  said:  "In  determining 
whether  there  was  in  fact  a  warranty,  the  decisive  test  is,  whether  the  vendor  assumes 
to  asseri  a  fact  of  which  the  buyer  is  ignorant,  or  merely  states  an  opinion  or  judg- 
ment upon  a  matter  of  which  the  vendor  has  no  special  knowledge,  and  on  which  the 
buyer  may  be  expected,  also,  to  have  an  opinion  and  to  exercise  his  judgment.  In  the 
former  case,  there  is  a  warranty  ;  in  the  latter,  not.  Benjamin  on  Sales,  454.  And 
this  is  substantially  the  rule  recognized  by  this  court  in  Adams  v.  Johnson,  15  111.345." 

In  Stroud  v.  Pierce,  6  Allen,  413,  416,  the  court  said  :  "  The  second  exception  relates 
to  the  ruling  of  the  judge,  that  '  a  representation  that  a  pianoforte  is  well  made  and 
will  stand  up  to  concert  pitch  is  a  representation  of  fact,  which,  if  proved  to  be  false, 
as  between  a  seller  making  the  representation  and  a  buyer  relying  upon  it,  would 
authorize  the  buyer  to  recover,'  &c.  The  word  '  representation '  was  undoubtedly 
used  here  as  synonymous  with  affirmation  ;  and  there  can  be  no  doubt  that  such  an 
affirmation  is  a  warranty.  It  relates  to  the  quality  of  the  article,  and  is  like  an 
affirmation  that  a  horse  is  sound  and  will  work  well  in  a  harness.  The  defendant 
contends  that  it  should  have  been  left  to  the  jury  to  find  whether  this  language  was 
used  witb  the  intention  of  affirming  the  fact,  or  of  expressing  an  opinion.  But  the 
intent  of  the  party  is  immaterial.  The  legal  proposition  stated  by  the  judge  was 
correct." 

See  further  to  the  same  effect.  Ormshv  v.  Budd.  72  la  SO;  McClintock  v.  Emick, 
87  Ky.  160  ;  Hawkins  v.  Pembexton,  51  N.  V.  198  ;  Fairbanks  Canning  Co.  v.  Metzger, 
118  N.  Y.  260;  Herron  v.  Dibbrell,  87  Va.  289. 

i  A  portion  of  the  opinion  is  omitted  which  held  that  the  plaintiff  had  been  rightly 
allowed  to  recover  as  damages  the  profits  lie  would  have  made,  the  defendants  having 
had  notice  of  the  use  to  which  the  seed  was  to  be  put,  and  the  amount  of  profit  being 
susceptible  of  proof. 


620  HOLMES    V.    TYSON.  [CHAP.  V. 


HOLMES,    Appellant,    v.    TYSON. 

Pennsylvania  Supreme  Court,  January  25,   1892. 

[Reported  in  147  Pennsylvania  State,  305.] 

Per  Curiam.  This  was  an  action  brought  for  a  breach  of  warranty 
in  the  sale  of  a  horse.  The  learned  judge  below  directed  a  nonsuit, 
for  the  reason  that  the  evidence  was  not  sufficient  to  show  a  warranty. 
In  this  we  think  he  was  right.  At  the  time  the  transaction  was  closed, 
and  the  money  paid,  there  was  no  warranty.  On  the  contrary,  the 
plaintiff  said  to  the  defendant:  kt  I  have  nothing  to  show  that  you 
warrant  this  horse  as  you  represent  him,"  to  which  the  defendant 
replied:  "The  horse  is  just  the  same  as  when  you  drove  him  on 
Mondav."  This  is  very  far  from  being  a  warranty.  It  was,  at  most, 
an  assertion  that  the  horse  was  in  the  same  condition  as  on  the  previous 
Monday,  and  there  was  nothing  in  the  case  to  show  that  it  was  not  true. 
There  was  evidence  of  previous  statements  having  been  made  to  the 
plaintiff,  that  the  horse  was  kind,  sound,  and  gentle,  but  the  defendant 
did  not  warrant  him  to  be  so.  It  was  held  in  Jackson  v.  Wetherill, 
7  S.  &  R.  480,  that  an  assertion  by  the  vendor  to  the  vendee,  at  the 
time  of  selling  a  mare,  that  he  is  sure  she  is  safe,  and  kind,  and  gentle 
in  harness,  amounts  only  to  a  representation,  and  does  not  constitute  a 
warranty,  or  express  promise  that  she  is  so.  In  McFarland  v.  New- 
man, (J  Watts,  55,  the  action  was  assumpsit  on  an  alleged  warranty  in 
the  sale  of  a  horse,  and  the  court  below  charged  the  jury  that  "  a  posi- 
tive averment,  made  by  the  defendant  at  the  time  of  the  contract,  is  a 
warranty;  that  it  is  a  part,  or  parcel,  of  the  contract."  This  ruling 
was  reversed  in  this  court,  Gibson,  C.  J.,  saying  in  his  opinion  :  *k  As 
the  cause  goes  back  to  another  jury,  it  is  proper  to  intimate  the  prin- 
ciple on  which  a  correct  decision  of  it  must  depend.  Though,  to 
constitute  a  warranty  requires  no  particular  form  of  words,  the  naked 
averment  of  a  fact  is  neither  a  warranty  of  itself  nor  evidence  of  it. 
In  connection  with  other  circumstances,  it  certainly  may  be  taken  into 
consideration  ;  but  the  jury  must  be  satisfied,  from  the  whole,  that  the 
vendor  actually,  and  not  constructively,  consented  to  be  bound  for  the 
truth  of  his  representation.  Should  he  have  used  expressions  fairly 
importing  a  willingness  to  be  thus  bound,  it  would  furnish  a  reason  to 
infer  that  he  had  intentionally  induced  the  vendee  to  treat  on  that 
basis  ;  but  a  naked  affirmation  is  not  to  be  dealt  with  as  a  warranty, 
merely  because  the  vendee  had  gratuitously  relied  on  it ;  for  not  to  have 
exacted  a  direct  engagement,  had  he  desired  to  buy  on  the  vendor's 
judgment,  must  be  accounted  an  instance  of  folly.  Testing  the  ven- 
dor's responsibility  by  these  principles,  justice  will  be  done  without 
driving   him   into  the  toils  of  an   imaginary  contract." 

We  have  quoted  this  extract  from  the  opinion  in  McFarland  y.  New- 
man, because  it  bears  upon  another  point.     It  was  contended,  in  the 


SECT.  I.]  ROGERS   V.   WOODRUFF,    ET   AL.  621 

case  in  hand,  that  the  question  whether  there  was  a  warranty  should 
have  been  submitted  to  the  jury.  As  the  warranty,  if  any,  is  to  be 
found  in  the  oral  testimony,  it  would  undoubtedly  be  the  province  of 
the  jury  to  determine  it,  if  there  was  a  conflict  of  evidence.  Had  the 
language  used  been  equivocal;  had  the  one  party  asserted  a  warranty, 
and  the  other  denied  it,  the  matter  should  have  been  submitted  to  the 
jury.  But  the  plaintiff's  own  testimony  showed  there  was  no  warranty. 
There  was  the  mere  assertion  of  a  fact,  which  the  cases  cited  show  was 
not  a  warranty,  nor  the  evidence  of  one.  Under  such  circumstances,  it 
would  have  been  the  duty  of  the  court  to  instruct  the  jury  that,  upon 
the  undisputed  facts,  there  was  not  sufficient  evidence  of  a  warranty. 
As  the  action  was  upon  a  warranty,  and  no  warranty  was  shown,  the 
learned  judge  did  not  err  in  directing  a  nonsuit. 

Judgment  affirmed.1 


JOSEPH    H.    ROGERS   v.   FRANKLIN    WOODRUFF   et   al. 
Ohio  Supreme  Court,  December  Term,  1873. 

[Reported  in  23  Ohio  State,  632  ] 

Error  to  the  Superior  Court  of  Cincinnati. 

Franklin  Woodruff  and  others,  the  plaintiffs  in  the  Superior  Court, 
sued  to  recover  the  price  of  eight  hundred  and  eighty-three  sacks  of 
Liverpool  salt  they  alleged  they  had  sold  and  delivered  to  the  defend- 
ant, at  $2.10  per  sack.  The  defendant  met  this  demand  by  a  counter- 
claim, by  which  he  alleged  that,  on  the  13th  day  of  October,  18C2,  he 
made  a  contract  in  writing  with  George  W.  Phillips,  who  was  the  duly 
authorized  agent  of  plaintiffs,  in  that  behalf,  by  which  contract,  plain- 
tiffs sold  to  the  defendant  one  thousand  sacks  coarse  Liverpool,  and 
two  thousand  sacks  fine  Liverpool  salt,  at  two  ten  one-hundredth s 
dollars  per  sack,  all  of  which  was  to  be  delivered  by  the  loth  day  of 
November,  then  next  ensuing,  to  be  paid  for  by  the  defendant  upon  the 
delivery  thereof. 

He  further  averred  that  the  plaintiffs  foiled  to  deliver  any  of  said 
salt  by  the  15th  of  November;  that  for  some  time  after  that  date  he 
was  ready  and  willing  to  receive  the  same,  and  so  notified  plaintiffs  ; 
that  between  that  date  and  December  8th,  the}'  did  deliver  the  eight 
hundred  and  eighty-three  sacks  mentioned  in  the  petition  ;  that  failing 
to  deliver  the  remainder  he,  on  December  8th,  notified  them  he  would 
not  receive  any  more,  but  should  hold  them  responsible  in  damages. 
He  claimed  damages  at  the  rate  of  ninety  cents  per  sack  for  the  salt 
not  delivered. 

The  plaintiffs  replied,  denying  that  they  contracted  to  deliver  the 
salt   by  November   loth,   and   averring,  among  other   things,  that  the 

1  A  doctrine  somewhat  similar  to  that  held  by  the  Pennsylvania  court  is  held  in 
House  v.  Fort,  4  Blackf.  294;  Jones  v.  Quick,  2^  Ind.  125;  Kircher  v.  Conrad,  9 
Mont.  191  ;  Enger  v.  Dawley,  62  \  t.  164.     See  also  Ilortou  v.  Green,  66  N.  C.  596. 


622  ROGERS    V.    WOODRUFF    ET    AL.  [CHAP.  V. 

contract  made  by  them  with  defendant  was  conditional  —  the  salt 
being  sold  to  arrive,  and  being  expected  to  arrive  ;  that  none  of  it  did 
arrive  by  the  time  named,  and  that  the  contract  was  therefore  deter- 
mined ;  but  that  salt  having  advanced,  defendant  continued  to  receive 
it  as  it  arrived  until  December  8th,  when,  salt  having  declined,  he  re- 
fused to  receive  any  more. 

Upon  the  "trial  plaintiffs  admitted  that  salt,  such  as  described  in  the 
contract,  on  November  15,  1862,  was  worth  three  dollars  per  sack. 
On  December  8th,  it  had  fallen  below  contract  price. 

The  contract,  put  in  evidence  by  defendant,  was  in  these  words  : 

Cincinnati,  October  13,  1862. 
Sold  J.  H.  Rogers  one  thousand  sacks  coarse   Liverpool,  and   two 
thousand  sacks  fine  Liverpool  salt  at  $2.10  per  sack,  to  arrive  by  the 
loth  November.  George  W.  Phillips,  Jr. 

It  further  appeared  that  the  salt  called  for  by  the  contract  did  not 
arrive  by  November  15th  ;  that  portions  of  it  did  arrive,  and  were  de- 
livered to  the  defendant,  as  the  same  arrived,  between  November  15th 
and  December  8th. 

Defendant  called  witnesses,  and  offered  to  prove  that  by  the  general 
custom  of  merchants,  the  phrase  "to  arrive  by  the  15th  November," 
meant  "deliverable  on  or  before  the  15th  of  November."  This  testi- 
mony was  objected  to  and  excluded,  and  defendant  excepted. 

The  case  was  tried  by  the  court  without  a  jury.  The  court  held  the 
defendant  not  entitled  to  recover  on  his  counter-claim,  and  rendered 
judgment  for  plaintiffs,  as  demanded  in  the  petition,  for  the  value,  at 
the  contract  pi  ice,  of  the  salt  delivered. 

The  defendant  moved  for  a  new  trial,  which  being  overruled,  he  took 
a  bill  of  exceptions  setting  out  all  the  testimony. 

It  is  now  insisted  on  his  behalf: 

1.  That  the  contract  was  not  conditional,  but  absolute  ;  and  that  by 
its  terras  plaintiffs  were  bound  to  deliver  the  salt  by  November  15th. 

2.  That  it  was  competent  for  the  defendant  to  show  that  by  the  cus- 
tom of  merchants,  the  terms  "  to  arrive  by  15th  November,''  meant 
"deliverable  by  15th  of  November." 

D.  There  Wright,  for  plaintiff  in  error. 

lUnry  Snow,  for  defendants  in  error. 

Stone,  J.  The  counter-claim  of  the  defendant  below  is  based  upon 
an  executory  contract  made  October  13,  1862,  by  which,  as  defendant 
alleges,  the  plaintiffs  sold  and  contracted  to  deliver  to  him  by  the  15th 
of  November,  then  next  ensuing,  3,000  sacks  of  Liverpool  salt.  This 
allegation  of  the  counter-claim  is  denied  by  the  reply,  and  is  not,  in  our 
judgment,  supported  by  the  contract  given  in  evidence. 

Effect  is,  of  course,  to  be  given  to  the  words  of  the  contract,  "to 
arrive  by  the  15th  of  November,"  but  the  question  is,  what  effect? 
They  are,  as  we  think,  words  of  condition  and  description  only,  and 
cannot  be  construed  as  a  warranty  that  the  salt  shall  arrive. 


SECT.  I.]  ROGERS   V.    WOODRUFF    FT    AL.  623 

The}'  serve  to  distinguish  the  salt  which  was  the  subject  of  the  con- 
tract from  the  mass  of  salt  of  the  same  variety  found  in  the  market. 
The  salt  plaintiffs  contracted  to  sell  and  defendants  to  buy,  was  not 
salt  which  plaintiffs  may  then  have  had  on  hand,  or  salt  which  had 
previously  arrived.  It  was  salt  which  was  to  arrive  between  the  date 
of  the  contract  and  the  loth  of  November  following.  Whether  it 
would  arrive  or  not  depended  upon  contingencies,  not  absolutely  within 
the  control  of  either  party.  If  it  arrived  within  the  time  limited,  plain- 
tiffs were  impliedly  bound  to  deliver  it  upon  the  contract.  If  it  failed 
to  arrive  within  that  time  no  such  obligation  arose.  There  was,  in 
that  case,  no  salt  which,  under  the  terms  of  the  contract,  the  plaintiffs 
were  bound  to  deliver  or  the  defendant  to  accept. 

Cases  have  frequently  arisen  involving  the  construction  of  contracts, 
in  their  essential  features,  not  to  be  distinguished  from  the  contract 
here  in  question.  It  has  uniformly  been  held  that  contracts  of  this 
description  —  for  the  sale  of  goods  to  arrive  —  arc  conditional,  the 
words  "  to  arrive,"  or  other  equivalent  words,  not  importing  a  war- 
ranty that  the  goods  will  arrive,  and  the  obligation  to  perform  the 
contract  by  an  actual  transfer  of  the  property  being,  therefore,  in  the 
absence  of  other  words  showing  a  contrary  intent,  contingent  upon  its 
arrival.  Alewyn  v.  Prvor,  Ryan  &  Moody,  404  ;  Lovatt  v.  Hamilton, 
5  M.  &  W.  039  ;  Johnston  v.  Macdonald,  (J  M.  &  W.  600;  Shields  v. 
Pettee,  2  Sand.  2G2.  See  also  Russell  v.  NicOl,  3  Wend.  112;  Benj. 
on  Sales,  470;  1  Parsons  on  Cont.,  title  k'Of  Sales  to  Arrive,"  and 
cases  cited. 

In  the  present  case,  it  is  not  alleged  that  any  of  the  salt  referred  to 
in  the  contract  arrived,  or  came  within  the  control  of  the  plaintiffs 
prior  to  the  15th  of  November,  nor  is  it  claimed  that  its  arrival  was 
delayed  by  their  agency.  The  defendant  counts  upon  the  contract  as 
made,  and  bases  his  claim  to  recover  solely  upon  the  ground  that  the 
plaintiffs,  by  its  terms,  stipulated  absolutely,  and  at  all  events,  to  de- 
liver the  salt  within  the  time  limited. 

2.  The  testimony  offered  by  defendant  to  show  that  by  the  custom 
of  merchants,  the  words  "to  arrive  by  the  15th  of  November,"  meant 
"deliverable  on  or  before  the  loth  of  November,"  tended  materially  to 
change  the  meaning  and  legal  effect  of  the  contract,  and  was  clearly 
incompetent.  Judgment  affirmed. 


624  MORLEY   V.    ATTEXBOROUGH.  [CHAP.  V. 


SECTION    II. 

Implied  Warranty. 
(a)   Warranty  of  Title. 

MORLEY   v.    ATTENBOROUGH. 
In  the  Exchequer,  February  17,  1849. 

[Reported  in  3  Exchequer,  500.] 

Parke,  B.  This  case  was  argued  some  time  ago  before  in}-  Lord 
Chief  Baron,  my  Brothers  Rolfe,  Piatt,  and  myself,  and  stood  over  for 
our  consideration.  The  plaintiff  brought  an  action  of  assumpsit, 
stating  that  in  consideration  that  the  plaintiff  would  buy  a  harp 
for  a  certain  sum,  the  defendant  promised  that  he,  the  defendant, 
had  lawful  right  to  sell  it,  and  the  breach  assigned  was  that  he 
had  not. 

It  appeared  on  the  trial,  before  m}'  Brother  Piatt,  that  the  defend- 
ant, who  was  a  pawnbroker,  had  the  harp  pledged  with  him  in  the  way 
of  his  business,  and,  the  time  having  elapsed  for  its  redemption,  and 
the  pledge  being  unredeemed,  offered  it  for  sale  through  certain  auc- 
tioneers, who  sold  it  to  the  plaintiff.  It  turned  out  that  the  harp  had 
been  pledged  to  the  defendant  by  a  person  who  had  no  title  to  it,  and 
the  real  owner  obliged  the  plaintiff  to  give  it  up,  after  it  had  been  deliv- 
ered to  him  by  the  defendant.  But,  of  the  want  of  title  of  the  pawner 
to  it,  the  defendant  was  ignorant,  and  there  was  no  express  warrant}'. 
My  Brother  Piatt  directed  a  verdict  for  the  plaintiff,  reserving  leave  to 
move  to  enter  a  nonsuit. 

On  showing  cause,  the  case  was  fully  argued,  and  every  authority 
cited  and  commented  upon  on  both  sides,  bearing  on  the  question, 
whether  there  is  an  implied  warranty  of  title  in  the  contract  of  sale  of 
an  article,  or  under  what  circumstances  there  is  a  liability  on  the  part 
of  the  vendor  to  make  good  a  loss  by  defect  of  title. 

It  is  very  remarkable  that  there  should  be  any  doubt,  as  that,  cer- 
tainly, is  a  question  so  likely  to  be  of  common  occurrence,  especially 
in  this  commercial  country.  Such  a  point,  one  would  have  thought, 
would  not  have  admitted  of  any  doubt.  The  bargain  and  sale  of  a 
specific  chattel,  by  our  law  (which  differs  in  that  respect  from  the  civil 
law),  undoubtedly  transfers  all  the  property  the  vendor  has,  where 
nothing  further  remains  to  be  done  according  to  the  intent  of  the  par- 
ties to  pass  it.  But  it  is  made  a  question,  whether  there  is  annexed  by 
law  to  such  a  contract,  which  operates  as  a  conveyance  of  the  property, 
an  implied  agreement  on  the  part  of  the  vendor,  that  he  has  the  ability 
to  convey.     With  respect  to  executory  contracts  of  purchase  and  sale, 


SECT.  II.]  MORLEY   V.   ATTENBO-KOUGH.  625 

where  the  subject  is  unascertained,  and  is  afterwards  to  be  conveyed,  it 
would  probably  be  implied  that  both  parties  meant  that  a  good  title  to 
that  subjeel  should  be  transferred,  in  the  same  manner  as  it  would  be 
implied,  under  similar  circumstances,  that  a  merchantable  article  was 
to  be  supplied.  Unless  goods,  which  the  party  could  enjoy  as  his  own, 
and  make  full  use  of,  were  delivered,  the  contract  would  not  be  per- 
formed. The  purchaser  could  not  be  bound  to  accept  if  he  discovered 
the  defect  of  title  before  delivery,  and  if  he  did,  and  the  goods  were 
recovered  from  him,  he  would  not  be  bound  to  pay,  or,  having  paid,  he 
would  be  entitled  to  recover  back  the  price,  as  on  a  consideration  which 
had  failed.  But  when  there  is  a  bargain  and  sale  of  a  specific  ascer- 
tained chattel,  which  operates  to  transmit  the  property,  and  nothing  is 
said  about  title,  what  is  the  legal  effect  of  that  contract?  Dors  the 
contract  necessarily  import,  unless  the  contrary  be  expressed,  that  the 
vendor  has  a  good  title?  or  has  it  merely  the  effect  of  transferring  such 
title  as  the  vendor  has?  According  to  the  Roman  law  (vide  Domat, 
Book  1,  tit.  2,  s.  2,  art.  3),  and  in  France  (Code  Civil,  chap.  4,  sect  1, 
art.  1603),  and  Scotland,  and  partially  in  America  (1  Johns.  Rep.  274  ; 
Broom's  Maxims,  G28,  where  this  subject  is  well  discussed),  there  is 
always  an  implied  contract  that  the  vendor  has  the  right  to  dispose  of 
the  subject  which  he  sells  (Bell  on  Sale,  94)  ;  but  the  result  of  the  older 
authorities  is,  that  there  is  by  the  law  of  England  no  warranty  of  title 
in  the  actual  contract  of  sale,  any  more  than  there  is  of  quality.  The 
rule  of  caveat  emptor  applies  to  both  ;  but  if  the  vendor  knew  that  he 
had  no  title,  and  concealed  that  fact,  he  was  always  held  responsible  to 
the  purchaser  as  for  a  fraud,  in  the  same  way  that  he  is  if  he  knew  of 
the  defective  quality.  This  rule  will  be  found  in  Co.  Litt.  102  a  ;  3  Rep. 
22  a ;  Nov,  Max.  42  ;  Fitz.  Nat.  Brev.  94  c,  in  Springwell  v.  Allen, 
Aleyn,  91,  cited  by  Littledale,  J.,  in  Early  v.  Garrett,  9  B.  &  C.  932, 
and  in  Williamson  v.  Allison,  2  East,  449,  referred  to  in  the  argument. 
The  same  principle  applies  to  transfer  by  deed.  Lord  Hale  says, 
"Though  the  words  'assign,  set  over,  and  transfer,'  do  not  amount  to 
a  covenant  against  an  eign  title,  yet,  as  against  the  covenantor  himself, 
it  will  amount  to  a  covenant  against  all  claiming  under  him"  (Deering 
v.  Farrington,  3  Keb.  304,  which  was  an  assignment  of  a  chose  in 
action). 

It  may  be,  that  as  in  the  earlier  times  the  chief  transactions  of 
purchase  and  sale  were  in  markets  and  fairs,  where  the  bona  fide 
purchaser  without  notice  obtained  a  good  title  as  against  all  except  the 
Crown  (and  afterwards  a  prosecutor,  to  whom  restitution  is  ordered  by 
the  21  Hen.  8,  c.  11),  the  common  law  did  not  annex  a  warranty  to  any 
contract  of  sale.  Be  that  as  it  may,  the  older  authorities  are  strong  to 
show  that  there  is  no  such  warranty  implied  by  law  from  the  mere  sale. 
In  recent  times  a  different  notion  appears  to  have  been  gaining  ground 
(see  note  of  the  learned  editor  to  3  Rep.  22  a) ;  and  Mr.  Justice  Black- 
stone  says,  "  In  contracts  for  sale  it  is  constantly  understood  that  the 
seller  undertakes  that  the  commodity  he  sells  is  his  own  ; "  and  Mr. 

40 " 


626  MORLEY   V.   ATTENBOROUGH.  [CHAP.  V. 

Wdoddeson*,  in  his  Lectures,  vol.  2,  p.  415,  goes  so  far  as  to  assert  that 
the  rule  of  caveat  emptor  is  exploded  altogether,  which  no  authority 
warrants. 

At  all  times,  however,  the  vendor  was  liable  if  there  was  a  warranty 
in  fact ;  and  at  an  early  period,  the  affirming  those  goods  to  be  his  own 
1)V  a  vendor  in  possession,  appears  to  have  been  deemed  equivalent  to 
a  warranty.  Lord  Holt,  in  Medina  v.  Stoughton,  1  Salk.  210;  Ld. 
Raym.  5!J8,  says,  that  "  where  one  in  possession  of  a  personal  chattel 
sells  it,  the  bare  affirming  it  to  be  his  own  amounts  to  a  warranty  ;  " 
and  Mr.  Justice  Buller,  in  Fasley  v.  Freeman,  3  T.  K.  57,  disclaims 
any  distinction  between  the  effect  of  an  affirmation,  when  the  vendor 
is  in  possession  or  not,  treating  it  as  equivalent  to  a  warranty  in  both 
cases. 

Some  of  the  text  writers  drop  the  expression  of  "warranty"  or 
"  affirmation,"  and  lay  down  in  general  terms,  that  if  a  man  sells  goods 
as  his  own,  and  the  title  is  deficient,  he  is  liable  to  make  good  the  loss, 
2  Black.  Com.  451  ;  the  commentator  cites,  for  that  position,  Cro.  Jac. 
474,  and  1  Roll.  Abr.  70,  in  both  which  cases  there  was  an  allegation 
that  the  vendor  affirmed  that  he  had  a  title,  and  therefore  it  would 
seem,  that  the  learned  author  treated  the  expression,  "selling  as  his 
own,"  as  equivalent  to  an  affirmation  or  warranty.  So  Chancellor 
Kent,  in  2  Com.  478,  says,  "  that  in  every  sale  of  a  chattel,  if  the  pos- 
session be  in  another,  and  there  be  no  covenant  or  warranty  of  title,  the 
rule  of  caveat  emptor  applies,  and  the  party  buys  at  his  peril ;  but  if 
the  seller  has  possession  of  the  article,  and  he  sells  it  at  his  own,  and 
for  a  fair  price,  he  is  understood  to  warrant  the  title."  From  the 
authorities  in  our  law,  to  which  may  be  added  the  opinion  of  the  late 
Lord  Chief  Justice  Tindal,  in  Ormrod  v.  Huth,  14  M.  &  W.  664,  it 
would  seem  that  there  is  no  implied  warranty  of  title  on  the  sale  of 
goods,  and  that  if  there  be  no  fraud,  a  vendor  is  not  liable  for  a  bad 
title,  unless  there  is  an  express  warrant}-,  or  an  equivalent  to  it,  by 
declarations  or  conduct;  and  the  question  in  each  case,  where  there  is 
no  warranty  in  express  terms,  will  be,  whether  there  are  such  circum- 
stances as  to  be  equivalent  to  such  a  -warranty.  Usage  of  trade,  if 
proved  as  a  matter  of  fact,  would,  of  course,  be  sufficient  to  raise  an 
inference  of  such  an  engagement ;  and  without  proof  of  such  usage, 
the  very  nature  of  the  trade  ma}'  be  enough  to  lead  to  the  conclusion, 
that  the  person  carrying  it  on  must  be  understood  to  engage  that  the 
purchaser  shall  enjoy  that  which  he  buys,  as  against  all  persons.  It 
is,  perhaps,  with  reference  to  such  sales,  or  to  executory  contracts,  that 
Blackstone  makes  the  statement  above  referred  to. 

Similar  questions  occur  in  cases  as  to  the  quality  of  goods,  in  which 
it  is  clear  there  is,  by  law,  no  implied  warranty;  .yet,  if  goods  are 
ordered  of  a  tradesman,  in  the  way  of  his  trade,  for  a  particular  pur- 
pose, he  may  be  considered  as  engaging  that  the  goods  supplied  are 
reasonably  fit  for  that  purpose.  We  do  not  suppose  that  there  would 
be  any  doubt,  if  the  articles  are  bought  in  a  shop  professedly  carried  on 


SECT.  II.]'  MORLEY   V.   ATTENBOROUGH.  627 

for  the  sale  of  goods,  that  the  shopkeeper  must  be  considered  as  war- 
ranting that  those  who  purchase  will  have  a  good  title  to  keep  the 
goods  purchased.  In  such  a  case  the  vendor  sells  "  as  his  own,"  and 
that  is  what  is  equivalent  to  a  warranty  of  title.  But  in  the  case  now 
under  consideration,  the  defendant  can  be  made  responsible  only  as  on 
a  sale  of  a  forfeited  pledge  eo  nomine.  Though  the  harp  ma}'  not 
have  been  distinctly  stated  in  the  auctioneer's  catalogue  to  be  a  for- 
feited pledge,  yet  the  auctioneer  had  no  authority  from  the  defendant 
to  sell  it  except  as  such.  The  defendant,  therefore,  cannot  be  taken 
to  have  sold  it  with  a  more  extensive  liability  than  such  a  sale  would 
have  imposed  upon  him  ;  and  the  question  is,  whether  on  such  a  sale, 
accompanied  with  possession,  there  is  any  assertion  of  an  absolute  title 
to  sell,  or  only  an  assertion  that  the  article  has  been  pledged  with  him, 
and  the  time  allowed  for  redemption  has  passed.  On  this  question  we 
are  without  any  light  from  decided  cases. 

In  our  judgment,  it  appears  unreasonable  to  consider  the  pawnbroker, 
from  the  nature  of  his  occupation,  as  undertaking  anything  more  than 
that  the  subject  of  sale  is  a  pledge  and  irredeemable,  and  that  he  is  not 
cognizant  of  any  defect  of  title  to  it.  By  the  statute  law  (see  1  Jac. 
1,  c.  21),  he  gains  no  better  title  by  a  pledge  than  the  pawner  had  ;  and 
as  the  rule  of  the  common  law  is,  that  there  is  no  implied  warranty  from 
the  mere  contract  of  sale  itself,  we  think,  that  where  it  is  to  be  implied 
from  the  nature  of  the  trade  carried  on,  the  mode  of  carrying  on  the 
trade  should  be  such  as  clearly  to  raise  that  inference.  In  this  case  we 
think  it  does  not.  The  vendor  must  be  considered  as  selling  merely 
the  right  to  the  pledge  which  he  himself  had  ;  and  therefore  we  think 
the  rule  must  be  absolute. 

Since  the  argument,  we  find  that  there  was  a  count  for  money  had 
and  received,  as  well  as  the  count  on  the  warranty,  in  the  declaration. 
But  the  attention  of  the  judge  at  the  trial  was  not  drawn  to  this  count, 
nor  was  it  noticed  on  the  argument  in  court, 

It  may  be,  that  though  there  is  no  implied  warranty  of  title,  so  that 
the  vendor  would  not  be  liable  for  a  breach  of  it  to  unliquidated  dam- 
ages, yet  the  purchaser  may  recover  back  the  purchase-money,  as  on  a 
consideration  that  failed,  if  it  could  be  shown  that  it  was  the  under- 
standing of  both  parties  that  the  bargain  should  be  put  an  end  to  if  the 
purchaser  should  not  have  a  good  title.  But  if  there  is  no  implied 
warranty  of  title,  some  circumstances  must  be  shown  to  enable  the 
plaintiff  to  recover  for  money  had  and  received.  This  case  was  not 
made  at  the  trial,  and  the  only  question  is,  whether  there  is  an  implied 
warranty.  Rule  absolute. 


628  EICHHOLZ   V.   BANNISTER.  [CHAP.  V. 


EICHHOLZ   v.   BANNISTER. 
In  the  Common  Pleas,  November  17,   1864. 

[Reported  in  17  Common  Bench,  New  Series,  708.] 

Erle,  C.  J.  I  am  of  opinion  that  this  rule  should  be  discharged. 
The  plaintiff  brings  his  action  to  recover  back  money  which  he  paid  for 
goods  bought  by  him  in  the  shop  of  the  defendant,  which  were  after- 
wards lawfully  claimed  from  him  by  a  third  person,  the  true  owner, 
from  whom  they  had  been  stolen.  The  plaintiff  now  claims  to  recover 
back  the  money  as  having  been  paid  by  him  upon  a  consideration  which 
has  failed.  The  jury  at  the  trial  found  a  verdict  for  the  plaintiff,  under 
the  direction  of  the  learned  judge  who  presided  ;  and  a  rule  has  been 
obtained  on  behalf  of  the  defendant  to  set  aside  that  verdict  and  to 
enter  a  nonsuit,  on  the  ground  that  it  is  part  of  the  common  law  of  Eng- 
land that  the  vendor  of  goods  by  the  mere  contract  of  sale  does  not 
warrant  his  title  to  the  goods  he  sells,  that  the  buyer  takes  them  at  his 
peril,  and  that  the  rule  caveat  emptor  applies.  The  case  has  been  re- 
markably well  argued  on  both  sides  ;  and  the  court  are  much  indebted 
to  the  learned  counsel  for  the  able  assistance  they  have  rendered  to 
them.  The  result  I  have  arrived  at  is  that  the  plaintiff  is  entitled  to 
retain  his  verdict.  I  consider  it  to  be  clear  upon  the  ancient  author- 
ities, that,  if  the  vendor  of  a  chattel  by  word  or  conduct  gives  the  pur- 
chaser to  understand  that  he  is  the  owner,  that  tacit  representation 
forms  part  of  the  contract,  and  that,  if  he  is  not  the  owner,  his  con- 
tract is  broken.  So  is  the  law  laid  down  in  the  very  elaborate  judg- 
ment of  Parke,  B.,  in  Morley  v.  Attenborough,  3  Exch.  500,  513, 
where  that  learned  judge  puts  the  case  upon  which  I  ground  my  judg- 
ment. A  difference  is  taken  in  some  of  the  cases  between  a  warranty 
and  a  condition  ;  but  that  is  foreign  to  the  present  inquiry.  In  Mor- 
ley v.  Attenborough,  Parke,  B.,  says:  "We  do  not  suppose  that 
there  wrould  be  an}"  doubt,  if  the  articles  are  bought  in  a  shop  profes- 
sedly carried  on  for  the  sale  of  goods,  that  the  shopkeeper  must  be 
considered  as  warranting  that  those  who  purchase  will  have  a  good 
title  to  keep  the  goods  purchased.  In  such  a  case  the  vendor  sells  '  as 
his  own,'  and  that  is  what  is  equivalent  to  a  warranty  of  title."  No 
doubt,  if  a  shopkeeper  in  words  or  by  his  conduct  affirms  at  the  time  of 
the  sale  that  he  is  the  owner  of  the  goods,  such  affirmation  becomes 
part  of  the  contract,  and,  if  it  turns  out  that  he  is  not  the  owner,  so 
that  the  goods  are  lost  to  the  buyer,  the  price  which  he  has  received 
may  be  recovered  back.  I  ventured  to  throw  out  some  remarks  in  the 
course  of  the  argument  upon  the  doctrine  relied  on  by  Mr.  Holker, 
which  he  answered  by  assertion  after  assertion  coming  no  doubt  from 
judges  of  great  authority  in  the  law,  to  the  effect  that  upon  a  sale  of 
goods  there  is  no  implied  warranty  of  title.  The  passage  cited  from 
Noy  certainly  puts  the  proposition  in  a  manner  that  must  shock  the 


SECT.  II.]  EICHHOLZ   V.   BANNISTER.  629 

understanding  of  any  ordinary  person.  But  I  take  the  principle  in- 
tended to  be  illustrated  to  be  this,  — I  am  in  possession  of  a  horse  or 
other  chattel:  I  neither  affirm  or  deny  that  I  am  the  owner;  if  you 
choose  to  take  it  as  it  is,  without  more,  caveat  emptor;  you  have  no 
remedy,  though  it  should  turn  out  that  I  have  no  title.  Where  that  is 
the  whole  of  the  transaction,  it  may  be  that  there  is  no  warrant)-  of 
title.  Such  seems  to  have  been  the  principle  on  which  Morley  ''. 
Attenborough  was  decided.  The  pawnbroker,  when  he  sells  an  unre- 
deemed pledge,  virtually  says,  —  I  have  under  the  provisions  of  the 
statute  a  right  to  sell.  If  you  choose  to  buy  the  article  it  is  at  your 
own  peril.  So,  in  the  case  of  the  sale  by  the  sheriff  of  goods  seized  under 
a  fi.  /a.,  — Chapman  v.  Speller,  14  Q.  B.  621  (E.  C.  L.  R.  vol.  68). 
The  fact  of  the  sale  taking  place  under  such  circumstances  is  notice  to 
buyers  that  the  sheriff  has  no  knowledge  of  the  title  to  the  goods;  and 
the  buyers  consequently  buy  at  their  own  peril.  Many  contracts  of 
sale  tacitly  express  the  same  sort  of  disclaimer  of  warranty.  In  this 
sense  it  is  that  1  understand  the  decision  of  this  court  in  Hall  v. 
Conder,  2  C  B.  n.  s.  22  (E.  C.  L.  R.  vol.  89).  There,  the  plaintiff 
merely  professed  to  sell  the  patent-right  such  as  he  had  it,  and  the 
court  held  that  the  contract  might  still  be  enforced,  though  the  patent 
was  ultimately  defeated  on  the  ground  of  want  of  novelty.  The  thing 
which  was  the  subject  of  the  contract  there  was  not  matter,  it  was 
rather  in  the  nature  of  mind.  These  are  some  of  the  cases  where  the 
conduct  of  the  seller  expresses  at  the  time  of  the  contract  that  he 
merely  contracts  to  sell  such  a  title  as  he  himself  has  in  the  thing. 
But,  in  almost  all  the  transactions  of  sale  in  common  life,  the  seller  by 
the  very  act  of  selling  holds  out  to  the  buyer  that  he  is  the  owner  of 
the  article  he  offers  for  sale.  The  sale  of  a  chattel  is  the  strongest  act  of 
dominion  that  is  incidental  to  ownership.  A  purchaser  under  ordinary 
circumstances  would  naturally  be  led  to  the  conclusion,  that,  by  offer- 
ing an  article  for  sale,  the  seller  affirms  that  he  has  title  to  sell,  and 
that  the  buyer  may  enjoy  that  for  which  he  parts  with  his  monev. 
Such  a  case  falls  within  the  doctrine  stated  by  Blackstone,  and  is  so 
recognized  by  Littledale,  J.,  in  Early  v.  Garrett,  9  B.  &  C.  928  (E.  C. 
L.  R.  vol.  17).  4  M.  &  R.  687,  and  by  Parke,  B.,  in  Morley  v.  Atten- 
borough, supra.  I  think  justice  and  sound  sense  require  us  to  limit 
the  doctrine  so  often  repeated,  that  there  is  no  implied  warranty  of 
title  on  the  sale  of  a  chattel.  I  cannot  but  take  notice,  that,  after  all 
the  research  of  two  very  learned  counsel,  the  only  semblance  of  author- 
ity for  this  doctrine  from  the  time  of  Noy  and  Lord  Coke  consists 
of  mere  dicta.  These  dicta,  it  is  true,  appear  to  have  been  adopted  by 
several  learned  judges,  amongst  others  by  my  excellent  Brother  Wil- 
liams, whose  words  are  almost  obligatory  on  me  ;  but  I  cannot  find  a 
single  instance  in  which  it  has  been  more  than  a  repetition  of  barren 
sounds,  never  resulting  in  the  fruit  of  a  judgment.  This  very  much 
tends  to  show  the  wisdom  of  Lord  Campbell's  remark  in  Sims  r. 
Marryat,  17  Q.  B.  291  (E.  C.  L.  R.  vol.  79),  that  the  rule  is  beset 


630  EICHHOLZ   V.    BANNISTER.  [CHAP.  V. 

with  so  many  exceptions  that  the}'  well  nigh  eat  it  up.  It  is  to  be 
hoped  that  the  notion  which  has  so  long  prevailed  will  now  pass  away, 
and  that  no  further  impediment  will  be  placed  in  the  way  of  a  buyer 
recovering  back  money  which  he  has  parted  with  upon  a  consideration 
which  has  failed.  Hule  discharged. l 

Note.  — In  Raphael  v.  Burt,  Cab.  &  Kllis,  325,  it  was  held  broadly  by  Stephen,  J., 
that  a  sale  of  personal  property  implies  an  affirmation  of  title.  See  also  Page  v. 
Cowasjee  EJuljee,  L.  E.  1  P.  C.  127,  144;  Bagulley  v.  Hawley,  L.  R.  2  C.  P.  625. 

In  the  United  States  the  distinction  between  sales  of  property  in  the  vendor's  possession 
and  sales  of  property  in  the  possession  of  a  third  person,  upheld  by  Holt,  J.,  in  Medina 
V.  Stoughton,  1  Salk.  210,  1  Ld.  Raym.  593,  and  denied  by  Boiler,  J.,  in  Pasley  v.  Free- 
man, 3  T.  R.  51,  has  found  some  support.  It  is  universally  held  that  where  the  vendor 
is  in  possession  a  warranty  of  title  is  implied.  Williamson  v.  Sammons,  34  Ala.  691 ; 
Lindsay  v.  Lamb,  24  Ark.  224;  Gross  v.  Kierski,  41  Cal.  Ill  ;  Starr  v.  Anderson,  19 
Conn.  *338;  Lines  v.  Smith,  4  Fla.  47;  Morris  v.  Thompson,  85  111.  16;  Marshall  v. 
Duke,  51  Ind.  62  ;  Paulsen  v.  Hall,  39  Kan.  365;  Maxfield  v.  Jones,  76  Me.  135,  137  ; 
Rice  v.  Forsyth,  41  Md.  389  ;  Shattuck  v  Green,  104  Mass.  42  ;  Hunt  v.  Sackett,  31 
Mich.  18;  Davis  v.  Nye,  7  Minn.  414;  Storm  v.  Smith,  43  Miss.  497;  Matheny  v. 
Mason,  73  Mo.  667  ;  Hall  v.  Aitkiu,  25  Neb.  360;  Sargent  v.  Currier,  49  N.  H.  310; 
Wood  v.  Sheldon,  42  N.  J.  L.  421  ;  Gould  v.  Bourgeois,  51  N.  J.  L.  361  ;  Cohen  v. 
Ammidown,  120  N.  Y.  398 ;  Inge  v.  Bond,  3  Hawks,  101  ;  Krumbhaar  v.  Birch,  83  Pa. 
426;  Colcock  v.  Goode,  3  McC.  513;  Word  v.  Gavin,  1  Head,  506;  Gilchrist  v. 
Hilliard,  53  Vt.  592  ;  Byruside  v.  Burdett,  15  W.  Va.  702  ;  Edgerton  v.  Michels,  66  Wis. 
1 24.  On  the  other  hand,  where  a  sale  is  made  by  a  judicial  officer,  auctioneer,  mortgagee, 
or  other  person,  of  property  belonging  legally  or  equitably  to  a  third  person,  it  is  well 
settled  that  no  such  warranty  is  implied.  The  Monte  Allegre,  9  Wheat.  616  ;  Ricks 
v.  Dillahunty,  8  Port.  133;  Bingham  v.  Maxcy,  15  111.  295,  Neal  v.  Gillaspy,  56  Ind. 
451  ,  Harrison  v.  Shanks,  13  Bush,  620;  Mockbee's  Adm.  v.  Gardner,  2  Harr.  &  G. 
176;  Storm  v.  Smith,  43  Miss.  497  ;  Hensley  v.  Baker,  10  Mo.  157  ;  Baker  v.  Arnot, 
67  N.  Y.  448 ;  Hicks  ».  Skinner,  71  N.  C  539  ;  Corwin  v.  Benham,  2  Ohio  St.  36 ; 
Bostick  v.  Winton,  1  Sueed,  524.  Further  it  has  been  frequently  said  and  sometimes 
decided  that  there  is  no  implied  warranty  when  the  vendor  is  out  of  possession.  Hun- 
tingdon r.  Hall,  36  Me.  501  ;  Long  u.  Hickingbottom,  28  Miss.  773;  Storm  v.  Smith,supra ; 
Edick  v.  ( 'rim,  10  Barb.  445  ,  Hopkins  v  Grinuell,  28  Barb.  533,  537  ,  Scrauton  v.  Clark, 
39  N.Y.220;  Andres  v.  Lee,  1  Dew  &  Bat.  Eq.318;  Scott  v.  Hix,  2  Sneed,192.  But  this 
has  been  doubted.  In  Gould  o.  Bourgeois,  supra,  Depue,  J.,  delivering  the  opinion  of  the 
court,  said  :  "  In  this  country  the  distinction  between  sales  where  the  vendor  is  in  posses- 
sion and  where  he  is  out  of  possession,  with  respect  to  implied  warranty  of  title,  has  been 
generally  recognized,  but  the  tendency  of  later  decisions  is  against  the  recognition  of 
such  a  distinction  and  favorable  to  the  modern  English  rule.  2  Benj.  Sales  (Corbin'a 
ed.),  §  962,  note  21  ;  Piddle,  Warranty.  §§  246.  247.  The  American  editor  of  the  ninth 
edition  of  Smith's  Leading  Cases,  in  the  note  to  Chandelor  v.  Lopus,  after  citing  the  cases 
in  this  country  which  have  held  that  the  rule  of  caveat  emptor  applies  to  sales  where  the 
vendor  is  out  of  possession,  remarks  that,  in  most  of  them,  what  was  said  on  that  point 
was  obiter  dicta,  and  observes  'thai  there  seems  no  reason  why,  in  every  ease  where  the 
vendor  purports  to  sell  an  absolute  and  perfect  title,  he  should  not  be  held  to  warrant 
it.'  1  Sm.  Lead.  Cas.  (Edsou's  ed.)  344."  In  Whitney  v.  Heywood,  6  Cush  82,  86, 
Dewey,  J.,  says  "  possession  here  must  be  taken  in  its  broadest  sense,"  and  "the  ex 
cepted  cases  must  be  substantially  cases  of  sales  of  the  mere  naked  interest  of  persons 
having  no  possession,  actual  or  constructive,  and  in  such  cases  no  warranty  of  title  is, 
implied;"  and  this  language  is  quoted  with  approval  in  Shattuck  v.  Green,  104  Mass 
42,  45. 

There  can  be  no  doubt  that  whether  a  vendor  is  in  or  out  of  possession,  he  may  by 
appropriate  words  sell  simply  his  interest  in  property  without  warranty.    First  Nat)  mal 

i  BYLE9  and  Keatisg,  .T.J.,  delivered  concurring  opiuions. 


SECT.  II.]  JONES   V.   JUST.  631 

Bank  v.  Massachusetts  Loan  &  Trust  Co.,  123  Mass.  330;  Gould  v.  Bourgeois,  supra ; 
Krumbhaar  v.  Birch,  supra  ;  Peuchen  v.  Imperial  Bank,  20  Oat.  Rep.  325. 

In  some  jurisdictions  it  is  held  that  no  action  lies  for  breach  of  a  warranty  of  title 
until  the  vendee's  possession  has  been  interfered  with.  Gross  v.  Kierski,  supra  ;  Lin- 
ton v.  Porter,  31  111.  1  (>7  ;  \Vranser  v.  Messier,  29  N.  J.  L.  250  ;  Burt  v.  Dewey,  40  N.  V. 
283  (compare  McGiffin  v.  Baird,  62  N.  Y.  329  ;  Caliill  v.  Smith,  101  N.  Y.  355) ;  Krum- 
bhaar v.  Birch,  supra.  See  also  Randon  v.  Toby,  11  How.  493.  In  other  jurisdictions 
the  fact  that  a  superior  title  or  encumbrance  exists  is  sufficient  ground  for  action.  Chan- 
cellor v.  Wiggins,  4  B.  Mon.  201  ;  Perkins  v.  Whelan,  116  Mass.  542;  Matheny  v. 
Mason,  73  Mo.  677,  680  ;  Word  v.  Cavin,  supra.  See  also  Harper  v.  Dotson,  43  la.-  232 ; 
Sargent  v.  Currier,  49  N.  H.  310. 


(6)  Warranty  of  Quality. 

JONES   v.  JUST. 
In  the  Queen's  Bench,  February  17,  18C8. 

[Reported  in  Law  Reports,  3  Queen's  Bench,  197.] 

The  judgment  of  the  court  (Cockburn,  C.  J.,  Blackburn  and  Mellor, 
JJ.),  was  delivered  by 

Mellor.  J.  In  this  case,  on  the  trial  before  Blackburn,  J.,  at  Liver- 
pool it  appeared  that  the  plaintiffs,  through  Messrs.  Beneke  &  Co., 
their  brokers,  entered  into  a  contract  with  the  defendant  for  the  pur- 
chase of  a  quantity  of  Manilla  hemp,  to  arrive. 

The  sold  note  was  in  the  following  terms:  "Liverpool,  19th  Oct., 
1865.  We  have  this  day  sold  for  you  the  following  goods  to  Messrs. 
J.  A.  Beneke  &  Co.  J.  H.  V.  200  bales  Manilla  hemp,  expected  to 
arrive  p.  '  Richard  Cobden,'  @  Singapore,  for  Liverpool,  .  .  .  309 
.  .  .  expected  to  arrive  pr.  '  Christopher  Newton,'  <g  Singapore  for 
Liverpool,  .  .  .  209  .  .  .  expected  to  arrive  pr.  '  Fortitude '  .  .  .  @ 

r  it    i  n o   \ 

Singapore  for  London,  j  h  H  1  f  '  *  '  exPected  to  arrive  P1*-  '  Opher,' 
@  Singapore  for  Liverpool,  @  £38  10s.  pr.  ton  of  2,240  lbs.,  cost 
freight  and  insurance.  Shipping  weights.  Payment,  cash  against 
shipping  documents  on  21st  Oct.,  1865,  less  2|%  discount." 

The  shipping  documents  were  duly  delivered  to  the  plaintiffs,  and 
the  price  was  paid.  All  the  vessels  named  in  the  contract  arrived  in 
due  course,  with  the  respective  numbers  of  bales  of  hemp  having 
marks  corresponding  to  those  specified  in  the  contract  on  board  ;  and 
the  bales  were  delivered  to  the  plaintiffs.  On  examination  of  the 
bales  it  was  found  that  the  whole  of  those  marked  J.  II.  V.  were  in  such 
a  state  as  to  afford  strong  evidence  that  they  had  at  some  time,  prob- 
ably from  a  shipwreck  when  on  the  voyage  from  Manilla  to  Singapore, 
hecn  wetted  through  with  salt  water,  had  afterwards  been  unpacked 
and  dried,  and  then  repacked  in  the  bales  which  were  afterwards 
shipped  at  Singapore. 


632  JONES  v.  just.  LCHAP- v- 

Manilla  hemp  is  divided  into  several  qualities.  The  hemp  in  the 
bales  in  question,  if  in  good  condition,  would  have  been  what  is  called 
••  fair  current  Manilla  hemp,"  which  is  not  the  lowest  quality;  but  in 
all  the  hales  the  hemp  was  damaged  to  some  extent,  though  not  so  far 
as  to  make  it  lose  the  character  of  hemp. 

After  some  correspondence  between  the  parties,  the  hemp  was  sold 
by  auction  by  the  plaintiffs'  orders  as  "Manilla  hemp,  with  all  faults," 
and  at  the  auction  it  realized  about  75  per  cent  of  the  price  which 
similar  hemp  would  have  fetched  if  undamaged.  The  price  of  hemp 
had  risen  considerably  since  the  contract,  so  that  the  proceeds  of  the 
sale  were  very  nearly  equal  to  the  invoice  price.  There  was  no  at- 
tempt to  show  that  the  defendant  knew  of  the  state  in  which  the  hemp 
had  been  shipped  at  Singapore. 

At  the  close  of  the  plaintiffs'  case,  Mr.  Brett,  for  the  defendant,  con- 
tended that,  in  point  of  law,  under  this  written  contract,  there  was  no 
further  condition  or  warranty  than  that  the  bales  on  their  arrival 
should  answer  the  description'  of  bales  of  Manilla  hemp,  which  they 
did,  as  was  proved  by  the  fact  that  the  hemp,  though  sold  with  a 
stigma  upon  it,  fetched  a  price  only  25  per  cent  below  that  of  sound 
hemp  ;  and  that  as  to  quality  or  condition  there  was  no  warranty  ;  that 
consequently  the  maxim  caveat  emptor  applied. 

The  learned  judge  expressed  an  opinion  adverse  to  this  view.  He 
said  :  "  I  think  that  the  question  is  for  the  jury,  whether  what  was 
supplied  under  this  contract  was,  when  shipped  at  Singapore,  such  as 
to  answer  the  description  of  reasonably  merchantable  Manilla  hemp, 
that  being  the  warranty  which,  I  think,  the  law  implies  in  a  contract 
to  supply,  as  this  is  :  though  it  would  be  different  in  a  sale  of  specific 
things  which  the  purchaser  might  examine,  or  of  things  sold  by  sample. 
And  I  think  the  question  whether  it  is  fairly  and  reasonably  merchant- 
able, is  a  question  of  more  or  less,  which  must  be  left  to  the  jury  as 
reasonable  men  to  determine."  The  judge  then  reserved  leave  to 
move  to  enter  the  verdict  for  the  defendant,  if  there  was  no  evidence 
to  go  to  the  jury  of  a  breach  of  warranty. 

Upon  this  intimation  of  opinion,  the  counsel  addressed  the  jury,  and 
the  case  was  left  to  them  substantially  to  the  effect  above  stated  ;  and 
the  jury  were  further  told  that  if  they  found  for  the  plaintiffs,  the 
damages  should  be  measured  by  the  rate  which  the  hemp  was  worth 
when  it  arrived  compared  with  the  rate  which  the  same  hemp  would 
have  realized  had  it  been  shipped  in  the  state  in  which  it  ought  to  have 
been  shipped:  thus,  in  effect,  giving  the  plaintiffs  the  benefit  of  the 
rise   in   the   market. 

The  jury  found  for  the  plaintiffs,  damages  £75G. 

.Mr.  Brett,  in  the  ensuing  term,  obtained  a  rule  to  enter  the  verdict 
for  the  defendant,  pursuant  to  the  leave  reserved;  or  for  a  new  trial, 
on  tiie  ground  of  misdirection  as  to  the  measure  of  damages,  which  he 
contended  ought  at  most  to  have  been  the  difference  between  the  value 
of  the  article  actually  delivered,  viz.,  fair  average  Manilla  hemp  in  a 


SECT.  II.]  JONES   V.   JUST.  G33 

damaged  state,  and  the  value  of  sound  Manilla  hemp  of  the  lowest 
quality  which  might  have  been  supplied  at  Singapore  under  this  eon- 
tract.  The  other  objections  to  the  direction  were  substantially  only 
varied  modes  of  putting  the  point  reserved. 

We  thought  that  if  the  contract  had  the  effect  which  the  direction 
stated  it  to  have,  the  true  measure  of  the  damages  was  given,  as  ii  put 
the  plaintiffs  in  the  position  in  which  they  would  have  been  if  the  con- 
tract, had  been  fulfilled;  but  we  took  time  to  consider  the  question  as 
to  what  the  contract  really  was,  which  is  no  doubt  one  of  importance 
and  difficult}'. 

After  careful  consideration,  we  are  of  opinion  that  Blackburn,  J.'s, 
direction  was  substantially  correct.  On  the  argument  before  us.  it  was 
contended  that  the  contract  was  performed  on  the  part  of  the  defend- 
ant by  the  shipping  at  Singapore  of  an  article  which  answered  the  de- 
scription of  "  Manilla  hemp,"  although  at  that  time  it  was  so  damaged 
as  to  have  become  unmerchantable.  It  was  said  that  there  being  no 
fraud  on  the  part  of  the  vendor,  and  both  parties  being  equally  igno- 
rant of  the  past  history  and  actual  condition  of  the  article  contracted 
for,  and  neither  of  them  having  had  the  opportunity  of  inspecting  it, 
it  was  the  duty  of  the  vendees  to  have  stipulated  for  a  merchantable 
article  if  that  was  what  they  intended  to  contract  for.  In  other  words, 
it  was  said  that  the  maxim,  caveat  emptor,  applied  in  such  a  ease,  in 
the  same  way  as  on  a  sale  of  a  specific  article  by  a  person  not  being 
the  manufacturer  or  producer,  even  though  the  defect  was  latent  and 
not  discoverable  upon  examination. 

We  are  of  opinion  that  there  is  a  great  distinction  between  the 
present  case  and  the  sale  of  goods  in  esse,  which  the  buyer  may 
inspect,  and  in  which  a  latent  defect  may  exist,  although  not  discover- 
able on  inspection. 

The  cases  which  bear  upon  the  subject  do  not  appear  to  be  in  con- 
flict, when  the  circumstances  of  each  are  considered.  They  may,  we 
think,  be  classified  as  follows  :  — 

First,  where  goods  are  in  esse,  and  may  be  inspected  by  the  buyer, 
and  there  is  no  fraud  on  the  part  of  the  seller,  the  maxim  caveat 
emptor  applies,  even  though  the  defect  which  exists  in  them  is  latent. 
and  not  discoverable  on  examination,  at  least  where  the  seller  is 
neither  the  grower  nor  the  manufacturer:  Parkinson  v.  Lee.  2  East, 
31  I.  The  buyer  in  such  a  case  has  the  opportunity  of  exercising  his 
judgment  upon  the  matter;  and  if  the  result  of  the  inspection  be  un- 
satisfactory, or  if  he  distrusts  his  own  judgment,  he  may  if  he  chooses 
require  a  warranty.  In  such  a  case,  it  is  not  an  implied  term  of  the 
contract  of  sale  that  the  goods  are  of  any  particular  quality  or  are 
merchantable.1     So  in  the  case  of  the  sale  in  a  market  of  meat,  which 

i  The  only  jurisdictions  in  the  United  States  where  the  rule  of  caveat  emptor  is  not 
applied  are  Louisiana,  where  the  civil  law  prevails.  McLellan  v.  Williams.  11  La.  An. 
721  ;  and  Sonth  Carolina,  where  ir  has  been  hell  from  a  very  early  day  till  the  pr 
time  that  a  warranty  of  soundness  is  implied   in  a  sale  for  a  "sound  price."     Timrod 
v.  Shoolbred,  I  Bay,  324;  Bulwinkle  v.  Cramer.  27  S.  C.  376. 


63±  JONES   V.   JUST.  [CHAP.  V. 

the  buyer  had  inspected,  but  which  was  in  fact  diseased,  and  unfit  for 
food,  although  that  fact  was  not  apparent  on  examination,  and  the 
seller  was  not  aware  of  it,  it  was  held  that  there  was  no  implied  war- 
ranty that  it  was  fit  for  food,  and  that  the  maxim  caveat  emptor  ap- 
plied :   Kmmerton  v.  Mathews,  7  H.  &  N.  586  ;  31  L.  J.  (Ex.)  139. 

Secondly,  where  there  is  a  sale  of  a  definite  existing  chattel  specifi- 
cally described,  the  actual  condition  of  which  is  capable  of  being  ascer- 
tained by  either  party,  there  is  no  implied  warranty :  Barr  v.  Gibson, 

3  M.  &  W.  390. 

Thirdly,  where  a  known  described  and  defined  article  is  ordered  of 
a  manufacturer,  although  it  is  stated  to  be  required  by  the  purchaser 
for  a  particular  purpose,  still  if  the  known,  described,  and  defined 
thing  be  actually  supplied,  there  is  no  warranty  that  it  shall  answer  the 
particular  purpose  intended  by  the  buyer:  Chanter  v.  Hopkins,  4  M. 
&  W.  399  ;  Olliyant  v.  Bayley,  5  Q.  B.  288. 

Fourthly,  where  a  manufacturer  or  a  dealer  contracts  to  supply  an 
article  which  he  manufactures  or  produces,  or  in  which  he  deals,  to  be 
applied  to  a  particular  purpose,  so  that  the  buyer  necessarily  trusts  to 
the  judgment  or  skill  of  the  manufacturer  or  dealer,  there  is  in  that 
case  an  implied  term  or  warranty  that  it  shall  be  reasonably  fit  for  the 
purpose  to  which  it  is  to  be  applied:  Brown  v.  Edgington,  2  Man.  & 
G.  279  ;  Jones  v.  Bright,  5  Bing.  533.  In  such  a  case  the  buyer  trusts 
to  the  manufacturer  or  dealer,  and  relies  upon  his  judgment  and  not 
upon  his  own. 

Fifthly,  where  a  manufacturer  undertakes  to  supply  goods,  manu- 
factured by  himself,  or  in  which  he  deals,  but  which  the  vendee  has 
not  had  the  opportunity  of  inspecting,  it  is  an  implied  term  in  the  con- 
tract that  he  shall  supply  a  merchantable  article  :  Laing  v.  Fidgeon, 

4  Camp.  1G9  ;  6  Taunt.  108.  And  this  doctrine  has  been  held  to 
apply  to  the  sale  by  the  builder  of  an  existing  barge,  which  was  afloat 
but  not  completely  rigged  and  furnished ;  there,  inasmuch  as  the 
buyer  had  onl}r  seen  it  when  built,  and  not  during  the  course  of  the 
building,  he  was  considered  as  having  relied  on  the  judgment  and  skill 
of  the  builder  that  the  barge  was  reasonably  fit  for  use:  Shepherd  v. 
By  bus,  3  Man.  &  G.  8G8. 

[f,  therefore,  it  must  be  taken  as  established  that,  on  the  sale  of 
goods  by  a  manufacturer  or  dealer  to  be  applied  to  a  particular  pur- 
pose, it  is  a  term  in  the  contract  that  they  shall  reasonably  answer 
that  purpose,  and  that  on  the  sale  of  an  article  by  a  manufacturer  to  a 
vendee  who  has  not  had  the  opportunity  of  inspecting  it  during  the 
manufacture,  that  it  shall  be  reasonably  fit  for  use,  or  shall  be  mer- 
chantable, as  the  case  may  be,  it  is  difficult  to  understand  why  a  simi- 
lar term  is  not  to  be  implied  on  a  sale  by  a  merchant  to  a  merchant  or 
dealer  who  has  had  no  opportunity  of  inspection.  Accordingly  in  the 
of  Bigge  v.  Parkinson,  7  H.  &  N.  955;  31  L.  J.  (Ex.)  301,  upon 
a  contract  to  supply  provisions  and  stores  to  a  ship  guaranteed  to  pass 
the   survey  of  the   East   India  Company's  officers,  it  was  held  by  the 


SECT.  II.]  JONES   V.    JUST.  635 

Court  of  Exchequer  Chamber  that  there  was  an  implied  term  in  the 
contract,  that  the  stores  should  be  reasonably  fit  fur  the  purpose  for 
which  they  were  to  be  supplied,  notwithstanding  that  the  vendor  hail 
specially  contracted  that  they  should  pass  the  survey  of  the  East  India 
Company's  officers. 

We  are  aware  of  no  case  in  which  the  maxim,  caveat  emptor,  has 
been  applied  where  there  has  been  no  opportunity  of  inspection,  or 
where  that  opportunity  had  not  been  waived.  The  case  of  Gardiner  v. 
Gray,  4  Camp.  144,  145,  appears  strongly  in  point  to  the  present 
The  contract  was  for  the  sale  of  twelve  bales  of  waste  silk  imported 
from  the  continent,  and  before  it  was  landed,  samples  were  shown  to 
plaintiff's  agent,  and  the  bargain  was  then  made,  but  without  reference 
to  the  sample.  It  was  purchased  in  London,  and  sent  to  Manchester, 
and  on  its  arrival  there  was  found  to  be  of  a  quality  not  salable  under 
the  denomination  of  "  waste  silk."  Lord  Ellenborough  expressed  his 
opinion  that  "the  purchaser  under  such  circumstances  had  a  right  to 
expect  a  salable  article  answering  the  description  in  the  contract. 
Without  any  particular  warrant}",  this  is  an  implied  term  in  every  such 
contract.  Where  there  is  no  opportunity  to  inspect  the  commodity  the 
maxim  caveat  emptor  does  not  apply." 

In  general,  on  the  sale  of  goods  by  a  particular  description,  whether 
the  vendee  is  able  to  inspect  them  or  not,  it  is  an  implied  term  of  the 
contract  that  they  shall  reasonably  answer  such  description,  and  if 
they  do  not,  it  is  unnecessary  to  put  any  other  question  to  the  jury  ; 
thus,  in  Wieler  v.  Schilizzi,  17  C.  B.  619;  25  L.  J.  (C.  P.)  89,  and  in 
Josling  v.  Kingsford,  13  C.  B.  (n.  s.)  447  ;  32  L.  J.  (C.  P.)  94,  the 
substantial  question  put  to  the  jury  was,  did  the  goods  delivered 
reasonably  answer  the  description  in  the  contract?  And  the  answer  of 
the  jury  being  that  they  did  not,  that  answer  sufficed  to  determine  each 
case.  In  one  of  those  cases  there  was  no  opportunit}*  to  inspect,  in 
the  other  there  was.  So  in  the  case  of  Nichol  v.  Godts,  10  Ex.  191  ; 
23  L.  J.  (Ex.)  314,  where  the  contract  was  for  the  sale  of  '*  foreign 
refined  rape  oil,  warranted  only  equal  to  sample,"  it  was  held  in  an 
action  for  not  accepting  the  article  tendered,  that  it  was  necessary  for 
the  vendor  to  establish  that  it  was  not  only  equal  to  the  sample  as  to 
quality,  but  that  it  was  in  fact  such  an  article  as  answered  the  descrip- 
tion of  foreign  refined  rape  oil.  In  Wieler  v.  Schilizzi,  supra,  in  which 
there  was  no  opportunity  to  inspect,  and  no  express  stipulation  as  to 
quality,  it  would  have  been  necessary,  had  the  finding  of  the  jury 
affirmed  that  the  article  delivered  did  in  fact  answer  the  description  of 
"Calcutta  linseed,"  to  determine  whether  the  judge  ought  not  to  have 
put  the  further  question,  was  it  reasonably  merchantable?  It  certainly 
was  not  determined  that  such  a  question  would  have  been  wrong. 
though  perhaps  the  words  "tale  quale  "  in  that  contract  might  have 
the  effect  of  excluding  any  such  warranty;  and  Willes,  J.,  in  his  judg- 
ment, 17  C.  B.  at  p.  621,  said  that  the  purchaser  in  that  case  ••  had  a 
right  to  expect,  not  a  perfect  article,  but  an  article  which  would  be 
salable  in  the  market  as  Calcutta  linseed." 


636  JONES  V.  JUST.  [chap.  v. 

It  appears  to  us  that,  in  every  contract  to  supply  goods  of  a  specified 
description  which  the  buyer  has  no  opportunity  to  inspect,  the  goods 
must  not  only  in  fact  answer  the  specific  description,  but  must  also  be 
salable  or  merchantable  under  that  description.  In  the  words  of  Lord 
EUenborough  in  Gardiner  v.  Gray,  4  Camp,  at  p.  145,  "Without  any 
particular  warranty  this  is  an  implied  term  in  every  such  contract." 
In  the  present  case  the  question  appears  to  be,  was  the  article  as 
delivered  at  Singapore  merchantable  or  salable  in  the  market  under 
the  description  of  "  Manilla  hemp"?  Blackburn,  J.,  appears  to  have 
divided  that  question  into  two,  viz.  :  Was  the  article,  in  fact,  Manilla 
hemp?  Secondly,  was  it  merchantable?  The  precise  mode  of  sub- 
mitting the  question  is  not  material,  provided  the  substantial  direction 
was  correct,  as  we  think  it  was. 

The  counsel  for  the  defendant  relied  upon  a  case  of  Turner  v.  Muck- 
low,  8  Jur.  (n.  s.)   870;  6  L.   T.   (n.  s.)    690,  tried  before  Mellor,  J., 
in  the  year  1862,  at  Liverpool."     In  that  case  the  plaintiffs  were  calico 
printers,  and  had  contracted  to  sell  to  the  defendant,  who  was  a  dry- 
salter  and  dye  extract  manufacturer,  a   boat-load  of  "spent  madder." 
The  defendant,  not  finding  the  spent  madder  supplied  suitable  for  his 
purpose,   repudiated  the  contract,   and  refused  to  pay  for  it.     It  ap- 
peared that  the  plaintiffs,  in  their  trade  as  calico  printers,  used  large 
quantities   of  madder   roots,   having  extracted   from   which   the    finer 
coloring  matter  by  chemical  processes  they  placed  the  refuse  or  spent 
madder  in  a  large  heap  in  their  yard.     They  occasionally  used  portions 
of  it,   and  by  the  application    of  other   chemical  processes  extracted 
from  it  a  coloring  matter  called  garancine,   but  they  did   not  manu- 
facture spent  madder  for  sale.     On  a  previous  occasion  they  had  sold 
to  the  defendant,  who  was  a  manufacturer  of  garancine,  a  small  quan- 
tity of  spent  madder  from  their  accumulation  ;  and  on  the  occasion  in 
question  the  defendant,  by  letter,  bargained  with  the   plaintiffs  for  a 
quantity  of  their  spent  madder,  which  he  did  not  inspect  before  de- 
livery, and  upon  a  portion  of  it  being  used  by  the   defendant  for  the 
purpose  of  manufacturing  garancine,  it  turned  out  that  the  garancine 
produced  by  it  was  of  very  inferior  quality  and  unmarketable.     The 
jury  were  directed  that  if  the   article  supplied  fairly  and  reasonably 
answered  the  description   of  "  spent    madder,"  there   was  no  implied 
warranty  that  it  was  of  an}'  particular  quality  or  fitness  for  any  par- 
ticular use,  and  upon  that  direction  the  jury  found  a  verdict   for  the 
plaintiffs  ;  and  upon  the  argument  on  a  rule  which  was  obtained  for  a 
new  trial,  on  the  ground  of  misdirection,  the  Court  of  Exchequer  held 
the  direction  to    be   right ;    Martin,   B.,   declaring  his  opinion    to  be 
"  that  no  direction  was  ever  more  correct." 

In  that  case  it  is  to  be  observed  that  the  defendant  had  the  opportu- 
nity, if  he  had  chosen  to  avail  himself  of  it,  to  inspect  the  heap  of 
spent  madder  ;  he  knew  that  it  was  the  refuse  madder  after  it  had  gone 
through  the  plaintiffs'  processes,  and  that  it  was  not  manufactured  for 
sale  These  circumstances  entirely  distinguish  that  case  from  the 
present. 


SECT.  II.]  JONES  V.    JUST.  637 

The  counsel  for  the  defendant  also  relied  upon  the  Statute  19  &  20 
Vict.  c.  GO,  s.  5,  as  a  sort  of  implied  legislative  declaration  of  the  law 
of  England  upon  that  subject  in  favor  of  his  argument;  but,  upon 
examining  the  section  referred  to,  it  does  not  appear  to  bear  out  that 
view,  for  all  thai  it  declares  is,  that  a  seller  of  goods,  without  knowl- 
edge that  they  are  defective  or  of  bad  quality,  shall  not  be  held  to  have 
warranted  their  quality  or  sufficiency. 

It  has  already  appeared  that  there  is  not  in  general,  on  the  sale  of 
goods  in  England  to  be  supplied,  an  implied  warranty  that  thej'  shall 
be  of  any  particular  quality  or  sufficiency  for  any  particular  purpose, 
but  merely  that  they  shall  be  merchantable  goods  of  the  description 
bargained  for.  The  present  case  depends  on  the  distinction  between 
a  sale  of  particular  articles  and  a  contract  to  supply  articles  of  a  par- 
ticular kind. 

The  authority  of  Chancellor  Kent  was  also  appealed  to  ;  but  as  the 
American  cases  which  he  cites  are  generally  adverse  to  his  opinion,  it 
can  at  most  be  said  that  the  opinion  of  an  eminent  writer  is  opposed  to 
the  authority  of  the  cases  which  he  cites. 

It  appears  to  us,  in  the  result  of  this  case,  that  the  maxim  of  caveat 
emptor  cannot  apply,  and  that  it  must  be  assumed  that  the  buyer  and 
seller  both  contemplated  a  dealing  in  an  article  which  was  merchant- 
able. The  buyer  bought  for  the  purpose  of  sale,  and  the  seller  could 
not  on  any  other  supposition  than  that  the  article  was  merchantable 
have  found  a  customer  for  his  goods,  and  the  buyer  must  be  taken  to 
have  trusted  to  the  judgment,  knowledge,  and  information  of  the  seller, 
as  it  is  clear  that  he  could  exercise  no  judgment  of  his  own  ;  and  this 
appears  to  us  to  be  at  the  root  of  the  doctrine  of  implied  warranty, 
and  that  in  this  view  it  makes  no  difference,  whether  the  sale  is  of 
goods  specially  appropriated  to  a  particular  contract,  or  to  goods  pur- 
chased as  answering  a  particular  description. 

It  was  contended  further  by  the  defendant's  counsel  that  the  ship- 
pers at  Singapore  were  the  persons  who  selected  the  goods  in  question, 
and  that  the  defendant,  who  mereby  sold  them  to  arrive,  was  as  little 
aware  of  their  true  condition  when  shipped  as  the  plaintiffs  ;  but  it  is 
clear  that  the  defendant,  if  not  directly  connected  with  the  shippers  as 
his  correspondents,  must  at  least  have  purchased  from  them,  and 
had  recourse  against  them  for  not  supplying  an  article  reasonabl}* 
merchantable. 

The  remarks  of  Cockburn,  C.  J.,  on  the  argument  in  Bigge  v.  Par- 
kinson, 7  H.  &  N.  at  p.  959,  though  not  in  terms  repeated  by  him  in 
delivering  the  judgment  of  the  Court  of  Exchequer  Chamber,  are  really 
involved  in  it,  and  are  very  closely  in  point  here. 

We  are  therefore  of  opinion  that  Blackburn,  J.'s,  direction  was  right, 
and  that  this  rule  must  be  discharged.  Rule  discharged. 


638  RANDALL  V.    NEWSON.  [CHAP.  V. 


RANDALL  v.   NEWSON. 

In  the  Queen's  Bench  Division,  Court  of  Appeal,  January  22, 

1877. 

[Reported  in  2  Queen's  Bench  Division,  102.] 

Statement  of  claim,  that  plaintiff  bought  of  defendant,  a  carriage- 
manufacturer,  a  phaeton  for  two  horses,  the  pole  made  and  supplied  for 
which  was  so  carelessly  and  negligently  made,  and  of  such  bad  and  im- 
proper wood,  that  while  the  plaintiff  was  driving  the  phaeton  the  pole 
broke  and  caused  the  horses  to  run  away,  and  the  horses  were  damaged. 

Defence,  denying  that  the  pole  was  carelessly  or  negligently  made,  or 
of  bad  or  improper  wood  ;  and  not  admitting  that  the  pole  broke  by  rea- 
son of  any  defect  in  the  wood,  or  that  the  defendant  sold  the  phaeton 
under  such  circumstances  as  to  render  him  liable  for  the  consequences 
of  a  latent  defect.     Issue  joined. 

At  the  trial  before  Archibald,  J.,  at  the  Middlesex  Hilary  sittings, 
1876,  it  appeared  that  the  plaintiff  bought  of  the  defendant,  who  was  a 
carriage-builder,  a  phaeton,  in  August,  1874  ;  it  was  only  fitted  with 
shafts  for  one  horse,  and  the  plaintiff  gave  orders  to  the  defendant  for 
a  pole  and  splinter-bar  to  be  made  and  fitted  to  it. 

The  phaeton  was  sent  home  with  the  pole  and  splinter-bar,  and  while 
the  plaintiff  was  driving  it  with  two  horses  in  October,  1875,  the  horses 
swerved  and  the  pole  broke  short  off  at  the  carriage.  The  horses  in 
consequence  became  restive  and  were  much  damaged. 

There  was  much  contradictory  evidence  as  to  the  cause  of  the  break- 
ing of  the  pole,  the  plaintiff's  witnesses  saying  it  was  of  bad  wood,  while 
the  defendant's  stated  that  the  wood  was  perfectly  good.  The  value  of 
a  new  pole  was  agreed  at  £3,  and  the  plaintiff  gave  evidence  that  his 
horses  were  damaged  to  between  £130  and  £140.  The  learned  judge 
expressed  it  as  his  opinion,  that  if  there  were  no  negligence  on  the  part 
of  the  defendant  in  making  the  pole,  or  in  the  selection  of  the  materials, 
the  plaintiff  could  not  recover  more  than  the  £3  ;  and  he  left  to  the  jury 
two  questions:  1.  Was  the  pole  reasonably  fit  and  proper  for  the  car- 
riage? 2.  Was  the  defendant  guilty  of  any  negligence?  And  he  asked 
the  jury  also  to  assess  the  consequential  damages,  in  case  they  should 
become  material.  The  learned  judge  was  obliged  to  leave  the  court  to 
attend  a  meeting  of  the  judges,  before  the  jury  had  returned  their  verdict. 

The  jury  answered  both  questions  in  the  negative,  and  as  to  the 
damages,  said  they  understood  from  the  judge  that  £3  was  all  they 
could  find. 

On  these  findings,  the  verdict  and  judgment  were  entered  for  the 
plaintiff  t&t  £3,  with  leave  to  move  to  enter  judgment  for  the  defendant. 

The  defendant  gave  notice  of  motion  accordingly ;  and  the  plaintiff 
obtained  an  order  for  a  new  trial  on  the  ground  of  misdirection  by  the 
learned  judge  as  to  the  measure  of  damages. 


SECT.  II.]  RANDALL   V.   NEWSON.  G39 

/Sills  (Cave,  Q.  C,  with  him),  for  the  defendant. 

(rates,  Q.  C,  and  Edward  Pollock,  for  the  plaintiff. 

Cur.  adv.  vult. 

The  judgment  of  the  court  (Kelly,  C.  B.,  Mellish,  L.  J.,  and  Brett  and 
Amphlutt,  JJ.  A.)  was  delivered  by 

Brett,  J.  A.  This  case  was  tried  upon  the  footing  that  it  was  an 
action  brought  against  the  defendant,  a  coachbuilder,  to  recover  dam- 
ages in  respect  of  injuries  to  the  plaintiff's  horses  and  carriage,  by  rea- 
son of  the  defendant  having  supplied  to  the  plaintiff  a  defective  carriage 
pole.  The  jury  found  that  the  pole  was  not  reasonably  tit  and  proper 
for  the  use  of  the  carriage  ;  but  that  there  was  no  negligence  on  the  part 
of  the  defendant  (including,  of  course,  his  servants  or  agents)  in  sup- 
plying the  pole.  The  price  of  a  new  pole  was  £3.  The  damage  done 
to  the  horses  and  carriage  was  much  more.  But  the  only  damages  found 
by  the  jury  were  £3.  Upon  these;  findings  the  Court  of  Queen's  Bench, 
applying  to  this  contract  the  principle  laid  down  in  Readhead  v.  Mid- 
land Ry.  Co.,  Law  Rep.  2  Q.  B.  412  ;  in  error  4  Q.  B.  379,  gave  judg- 
ment for  the  defendant.  No  dispute  was  made  at  the  trial,  or  in 
argument,  as  to  the  nature  of  the  order  given  and  accepted  ;  the  ques- 
tions argued  were  whether  the  defendant  was  liable  at  all,  and  what  was 
the  extent  of  damages  to  which  he  might  be  subjected,  if  he  was  liable 
at  all.  Now  as  to  these  questions,  it  is  to  be  taken,  although  nothing 
specific  seems  to  have  been  said,  that  the  order  given  and  accepted  was 
not  merely  for  a  pole  in  general,  but  for  the  supply  of  a  pole  for  the 
plaintiff's  carriage  ;  and  that  the  contract  therefore  was  for  the  purchase 
and  sale,  or  supply,  of  an  article  for  a  specific  purpose.  In  other  words, 
the  subject-matter  of  the  contract  was  not  merely  a  pole,  but  a  pole  for 
the  purchaser's  carriage  ;  or,  to  state  the  proposition  in  an  equivalent 
form,  the  thing  which  would,  if  the  contract  were  formally  drawn  up, 
be  described  in  it  as  the  subject-matter  of  it,  would  not  be  merely  a  pole 
generally,  but  a  pole  to  be  purchased  for  a  specific  purpose,  namely,  to 
be  used  in  the  plaintiff's  carriage.  The  question  is,  what,  in  such  a 
contract,  is  the  implied  undertaking  of  the  seller  as  to  the  efficiency  of 
the  pole?  Is  it  an  absolute  warranty  that  the  pole  shall  be  reasonably 
fit  for  the  purpose,  or  is  it  only  partially  to  that  effect,  limited  to  defects 
which  might  be  discovered  by  care  and  skill? 

In  order  to  decide  this  question  it  seems  advisable  to  ascertain  the 
primary  or  governing  principle  on  which  the  earlier  cases  were  decided, 
and  to  see  whether  the  principle  on  which  the}'  were  decided  ought  to  be 
modified  by  the  decision  in  Readhead  v.  Midland  Ry.  Co.,  s"/>r<t.  The 
earliest  case  seems  to  be  Parkinson  r.  Lee,  2  East.  314,  in  1802.  It  is 
sufficient  to  say  of  it  that,  either  it  does  not  determine  the  extent  of  a 
seller's  liability  on  the  contract,  or  it  has  been  overruled.  Neither  can 
the  case  of  Fisher  v.  Samuda,  1  Camp.  190,  in  1808,  be  said  to  decide 
anything.  The  first  cases  of  importance  are  Gardiner  v.  Gray.  4  Camp. 
144,  and  Laing  v.  Fidgeon,  6  Taunt.  108,  in  1815.    In  Gardiner  v.  Gray. 


6-10  RANDALL  V.   NEWSON.  [CHAP.  V. 

supra,  the  contract  was  for  the  purchase  and  sale  of  "  waste  silk."  The 
silk  was  imported,  and  the  bulk  had  not  been  seen  either  by  the  defend- 
ant, the  seller,  or  the  plaintiff,  the  Inner.  Lord  Ellenborough  said  :  "  I 
am  of  opinion  that,  under  such  circumstances"  (i.  e.  a  sale  of  silk  as 
waste  silk)  "  the  purchaser  has  a  right  to  expect  a  salable  article,  an- 
swering the  description  in  the  contract.  Without  any  particular  war- 
ranty, this  is  an  implied  term  in  every  such  contract."  The  contract 
was  for  the  purchase  and  sale  of  a  commodity  described  generall}-,  not 
described  to  be  ordered  or  supplied  for  a  particular  purpose.  The  de- 
scription of  it  was  that  it  was  waste  silk.  From  that  it  is  implied  that 
it  is,  or  in  other  words  it  is  assumed  that  it  might  be,  specifically  de- 
scribed as  salable  waste  silk.  The  decision,  therefore,  is  that  the  com- 
modity offered  and  delivered  must  answer  the  description  of  it  and  be 
salable  waste  silk.  The  principle  is  that  the  commodity  offered  must 
answer  the  description  of  it  in  the  contract.  Laing  v.  Fidgeon,  supra, 
is  to  the  same  effect.  In  Gra}T  v.  Cox,  4  B.  &  C.  108,  115,  in  1825,  the 
case  was  decided  on  a  variance  ;  but  Abbott,  C.  J.,  stated  that  he  was 
of  opinion,  "  that  if  a  person  sold  a  commodity  for  a  particular  purpose, 
he  must  be  understood  to  warrant  it  reasonably  fit  and  proper  for  such 
purpose."  The  commodit}'  ordered  was  copper  for  sheathing  the  ship 
"Coventry.''  It  was  proved  that  no  defect  could  be  discovered  by  in- 
spection of  the  article,  and  it  was  admitted  that  the  defendants  were 
ignorant  of  the  defective  qualit}'  of  the  copper.  It  is  obvious  that  Lord 
Tenterden  did  not  consider  the  seller  relieved  by  reason  of  the  defect 
being  latent. 

This  ruling  of  Lord  Tenterden  was  adopted  in  the  decision  of  Jones 
v.  Bright,  5  Bing.  533,  540,  in  1829.  The  contract  was  for  copper 
sheathing  for  a  ship.  The  question  proposed  b}r  Ludlow,  Serjt.,  in  ar- 
gument was,  "  whether  the  law  will,  according  to  the  dictum  of  Lord 
Tenterden,  in  Gray  v.  Cox,  supra,  lay  upon  the  seller  or  manufacturer 
an  obligation  to  warrant  in  all  cases  that  the  article  which  he  sells  shall 
be  reasonably  fit  and  proper  for  the  purpose  for  which  it  is  intended, 
and  render  him  responsible  for  all  the  consequences  which  may  result, 
if  it  shall  be  found  not  to  answer  the  purpose  for  which  it  was  designed, 
and  that,  on  account  of  some  latent  defect  of  which  he  was  ignorant,  and 
which  shall  not  be  proved  to  have  arisen  from  an}T  want  of  skill  on  his 
part,  or  the  use  of  improper  materials,  or  any  accident  against  which 
human  prudence  might  have  been  capable  of  guarding  him."  Here, 
therefore,  the  whole  proposition,  with  and  without  limitations,  was 
plainly  laid  before  the  judges  for  their  consideration. 

The  answer  given  b}T  Best,  C.  J.,  was  :  "I  wish  to  put  the  case  on  a 
broad  principle.  If  a  man  sells  an  article  he  thereby  warrants  that  it  is 
merchantable,  —  that  it  is  fit  for  some  purpose.  If  he  sells  it  for  that 
particular  purpose,  he  thereby  warrants  it  fit  for  that  purpose.  .  .  . 
Whether  or  not  an  article  has  been  sold  for  a  particular  purpose  is,  in- 
deed, a  question  of  fact;  but  if  sold  for  such  purpose,  the  sale  is  an 
undertaking  that  it  is  fit.  .  .  .  The  law  then  resolves  itself  into  this, — ■ 


SECT.  II.]  RANDALL   V.    NEWSON.  G41 

that  if  a  man  sells  generally ,  he  undertakes  that  the  article  sold  is  lit 
for  some  purpose  ;  if  he  sells  it  for  a  particular  purpose,  he  undertakes 
that  it  shall  be  fit  for  that  particular  purpose."  Nothing  can  be  more 
clear  than  that  the  rule  is  advisedly  enunciated  as  a  warranty  without 
limitation.     Brown  v.  Edgington,  2  M.  &  G.  27'J,  is  to  the  same  effect. 

In  Wieler  v.  Schilizzi,  17  C.  15.  619,  G22  ;  25  L.J.  (C.  P.)  89,  the  con- 
tract was  for  "  Calcutta  linseed."  Jervis,  C.  J.,  told  the  jury  that  the 
question  for  them  to  consider  was,  "  whether  there  was  such  an  admix- 
ture of  foreign  substances  in  it  as  to  alter  the  distinctive  character  of 
the  article,  and  prevent  it  from  answering  the  description  of  it  in  tie' 
contract."  Cresswell,  J.,  said,  "They  were  to  say  whether  the  article 
delivered  reasonably  answered  the  description  of  Calcutta  linseed." 
Crowder,  J.,  said,  "The  jury  in  effect  found  that  the  article  delivered 
did  not  reasonably  answer  the  description  in  the  contract."  Willes,  J., 
said,  --The  purchaser  had  a  right  to  expect,  not  a  perfect  article,  but 
an  article  which  would  be  salable  in  the  market  as  Calcutta  linseed. 
If  lie  got  an  article  so  adulterated  as  not  reasonably  to  answer  that  de- 
scription, he  did  not  get  what  he  bargained  for."  In  this  case  it  is  to 
be  observed  that  all  the  judges  adopted  the  form  of  stating  the  princi- 
ple which  was  used  by  Lord  Ellenborough  in  Gardiner  v.  Gray,  supra. 
In  Nichol  r.  Godts,  10  Ex.  191;  23  L.  J.  (Ex.)  314,  the' contract 
was  for  "  foreign  refined  rape  oil,  warranted  only  equal  to  samples." 
The  oil  offered  was  equal  to  samples,  but  both  samples  and  oil  were 
adulterated.  Parke,  B.,  told  the  jury  "that  the  statement  in  the  sold 
note  as  to  the  samples  related  to  the  quality  only  of  the  article,  and  that 
according  to  the  contract  the  defendant  was  entitled  to  have  rape  oil 
delivered  to  him."  Piatt,  B.,  in  banc,  said  :  "I  understand  that  the  oil 
to  be  delivered  was  to  be  equal  to  the  samples  in  quality.  But  the  de- 
fendant did  not  refuse  to  accept  the  oil  tendered  to  him  on  the  ground 
that  it  did  not  equal  the  samples,  but  on  account  of  its  not  being  foreign 
refined  rape  oil  at  all.  And  the  learned  judge  told  the  jury  that  if  they 
should  think  that  was  so,  the  defendant  was  not  bound  to  accept  it. 
That  direction  was  perfectly  correct.  If  the  jury  had  found  that  the 
article  which  the  plaintiff  tendered  was  known  in  the  market  under  the 
name  and  description  of  foreign  refined  rape  oil,  the  plaintiff  would  have 
been  entitled  to  succeed  ;  but  the  question  was  put  to  the  jury,  and  they 
were  of  opinion  that  it  was  not  known  as  such."  And  Parke,  B..  said 
"  the  evidence  went  to  show  that  the  oil  offered  did  not  answer  the  de- 
scription of  the  article  sold." 

This  form  of  stating  the  rule  was  distinctly  adopted  in  Josling  v. 
Kingsford,  13  C.  B.  (n.  s.)  447;  32  L.  J.  (C.  P.)  94.  by  Erie.  C.  J., 
and  Willes,  J.  Erie.  C.  J.,  told  the  jury  "  that  the  defendant  could  out- 
perform his  part  of  the  contract  by  delivering  that  which  in  commercial 
language  might  properly  be  said  to  come  under  the  denomination  of  ox- 
alic acid  ;  and  that  if  they  should  be  of  opinion  that  the  article  delivered 
by  the  defendant  as  oxalic  acid  did  not  properly  fulfil  that  description 
they  should  find  for  the  plaintiff." 

41 


G42  RANDALL  V.    NEWSON.  [CHAP.  V. 

I  have  cited  these  cases,  and  the  principles  laid  down  in  them,  in 
order  clearly  to  ascertain  what  is  the  primary  or  ultimate  rule  from  which 
the  rules  which  have  been  applied  to  contracts  of  purchase  and  sale  of 
somewhat  different  kinds  have  been  deduced.  Those  different  rules, 
as  applied  to  such  different  contracts,  are  carefully  enumerated  and  rec- 
ognized in  Jones  v.  Just,  Law  Rep.  3  Q.  B.  197.  In  some  contracts  the 
undertaking  of  the  seller  is  said  to  be  only  that  the  article  shall  be  mer- 
chantable ;  in  others,  that  it  shall  be  reasonably  fit  for  the  purpose  to 
which  it  is  to  be  applied.  In  all,  it  seems  to  us,  it  is  either  assumed  or 
expressly  stated,  that  the  fundamental  undertaking  is,  that  the  article 
offered  or  delivered  shall  answer  the  description  of  it  contained  in  the 
contract.  That  rule  comprises  all  the  others  ;  they  are  adaptations  of 
it  to  particular  kinds  of  contracts  of  purchase  and  sale.  You  must, 
therefore,  first  determine  from  the  words  used,  or  the  circumstances, 
what,  in  or  according  to  the  contract,  is  the  real  mercantile  or  business 
description  of  the  thing  which  is  the  subject-matter  of  the  bargain  of 
purchase  or  sale,  or,  in  other  words,  the  contract.  If  that  subject- 
matter  be  merely  the  commercial  article  or  commodity,  the  undertaking 
is,  that  the  thing  offered  or  delivered  shall  answer  that  description,  that 
is  to  say,  shall  be  that  article  or  commodity,  salable  or  merchantable. 
}{'  the  subject-matter  be  an  article  or  commodity  to  be  used  for  a  partic- 
ular purpose,  the  thing  offered  or  delivered  must  answer  that  descrip- 
tion, that  is  to  say,  it  must  be  that  article  or  commodity,  and  reasonably 
fit  for  the  particular  purpose.  The  governing  principle,  therefore,  is 
that  the  thing  offered  and  delivered  under  a  contract  of  purchase  and 
sale  must  answer  the  description  of  it  which  is  contained  in  words  in  the 
contract,  or  which  would  be  so  contained  if  the  contract  were  accurately 
drawn  out.  And  if  that  be  the  governing  principle,  there  is  no  place  in 
it  for  the  suggested  limitation.  If  the  article  or  commodity  offered  or 
delivered  does  not  in  fact  answer  the  description  of  it  in  the  contract,  it 
does  not  do  so  more  or  less  because  the  defect  in  it  is  patent,  or  latent, 
or  discoverable.  And  accordingby  there  is  no  suggestion  of  any  such 
limitation  in  an}'  of  the  judgments  in  cases  relating  to  contracts  of  pur- 
chase and  sale.  Unless,  therefore,  there  is  some  binding  authority  to 
the  contrary,  we  ought  not  now  to  introduce  by  implication  a  limitation 
into  contracts  of  purchase  and  sale  which  has  never  been  introduced 
before. 

It  is  said  that  the  case  of  Readhead  v.  Midland  Ry.  Co.,  Law  Rep. 
4  Q.  B.  379,  38G,  in  error  is  such  a  binding  authority.  But  in  answer 
to  the  cases  cited  of  the  implied  undertaking  in  contracts  of  purchase 
and  sale,  Montague  Smith,  J.,  says:  "The  counsel  for  the  plaintiff  re- 
ferred  to  some  of  the  cases  in  which  it  had  been  held  that  in  contracts 
for  the  supply  of  goods  for  a  particular  purpose,  there  is  an  implied 
warranty  that  the  goods  supplied  shall  be  reasonably  fit  for  that  purpose. 
.  .  .  But  the  agreement  to  sell  and  supply  for  a  price  which  may  be 
assumed  to  represent  their  value  is  a  contract  of  a  different  nature  from 
a  contract  to  carry,  and  has  essentially  different  incidents  attaching  to 


SECT.  II.]  RANDALL   V.    NEWSON.  643 

it."  Il  is  true  that  the  learned  judge  afterwards  says:  "Even  in  the 
cases  of*  contracts  to  supply  goods  it  may  be  a  question,  on  which  it  is 
not  now  necessary  to  express  an  opinion,  how  far  and  to  what  extent 
the  vendor  would  be  liable  to  the  vendee  in  the  ease  of  a  latent  defect 
of  the  kind  existing  in  the  present  case  which  no  skill  or  care  could  pre- 
vent or  detect."  lint  it  seems  impossible  logically  to  hold  that  a  ease, 
—  in  which  the  court  declined  to  follow  the  decisions  on  contracts  of 
purchase  and  sale,  on  the  ground  thai  (hose  contracts  are  of  a  different 
nature  and  have  essentially  different  incidents  from  the  contract  to 
carry,  which  was  in  discussion  in  that  ease  —  can  he  fairly  binding  on 
this  court,  so  as  to  oblige  it  to  introduce  a  particular  limitation  into  a 
contract  of  purchase  and  sale,  because,  in  that  case,  it  was  introduced 
into  a  contract  to  carry  passengers. 

The  case  of  Francis  v.  Cockrell.  Law  Rep.  5  Q.  B.  501,  503,  is  based 
upon  Readhead  /'.  Midland  Ry.  Co.,  supra,  and  is  therefore  of  itself  no 
more  a  binding  authority  on  us  in  this  case  than  the  other,  it  is  true, 
however,  that  the  Lord  Chief  Baron,  going  further  than  the  doubt  ex- 
pressed by  Montague  Smith,  J.,  does  recognize  the  limitation  as  appli- 
cable to  contracts  of  purchase  and  sale  (Law  Rep.  4  Q.  B.  503).  But 
the  statement  of  the  learned  judge  was  not  necessary,  and  therefore  is 
not  binding,  though  of  course  inviting  a  careful  consideration  of  the 
older  cases.  After  such  consideration,  for  the  reasons  before  given,  we 
are  of  opinion  that  the  undertaking  of  the  present  defendant  was  not  re- 
stricted by  the  limitations  applied  to  the  contract  of  carriage  in  Read- 
head  v.  Midland  Ry.  Co.,  supra,  and  that  so  long  as  the  verdict  in  this 
case  stands  it  imposes  a  liability  on  the  defendant.  We  are,  therefore, 
of  opinion  that  the  judgment  of  the  Court  of  Queen's  Bench  directing 
the  judgment  to  be  entered  for  the  defendant  was  wrong. 

In  the  Court  of  Queen's  Bench  a  cross  rule  had  been  obtained  on  be- 
half of  the  plaintiff  for  a  new  trial,  on  the  ground  of  misdirection  as  to 
the  measure  of  damages.  In  consequence  of  the  decision  that  the  de- 
fendant was  not  liable  at  all,  it  became  useless  to  argue  the  point.  But 
Mr.  Gates  has  renewed  it  before  us,  and  has  asked  for  a  new  trial  on 
the  ground  of  such  misdirection,  desiring  to  have  such  new  trial  confined 
to  the  question  of  damage  only.  We  think  that  a  question  should  have 
been  left  to  the  jury  similar  to  that  which  was  left  in  Smith  v.  Green, 
1  C.  P.  D.  92,  namely,  whether  the  injury  to  the  horses  was  or  was  not 
a  natural  consequence  of  the  defect  in  the  pole.  There  has  been  a  mis- 
carriage in  this  respect  at  .nil  events.  We  are  asked  to  confine  the  new 
trial  to  the  question  of  damages,  but  considering  that  the  real  question 
is  not  whether  the  pole  was  perfect,  but  only  whether  it  was  reasonably 
fit,  we  cannot  think  that  the  findings  of  the  jury  as  to  the  questions  left 
to  them  in  order  to  determine  the  liability  of  the  defendant  are  so  satis- 
factory as  to  authorize  us  to  confine  the  question  to  be  raised  on  a  new 
trial  to  the  damages  only.  We  think  that  the  judgment  of  the  Court  of 
Queen's  Bench  should  be  reversed,  and  that  the  order  should  be  for  a 
new  trial  generally,  if  the  plaintiff  elects  to  have  a  new  trial  at  all-     If 


644  DEUMMOND   V.    VAN    INGEN.  [CHAP.  V. 

V 

he  does  not,  the  verdict  and  judgment  for  the  plaintiff  for  £3  will 
stand. 

The  plaintiff  has  succeeded  on  the  appeal,  and  should  therefore  have 
the  costs  of  the  appeal. 

Kelly,  C  B.,  in  assenting  to  the  judgment  of  the  court,  observed, 
that,  if  the  language  imputed  to  him  in  Francis  v.  Cockrell,  supra,  be 
correctly  reported,  he  must  have  expressed  himself  inaccurately,  and 
he  had  no  intention  to  apply  the  doctrine  in  Readhead's  case,  supra,  to 
a  contract  for  the  sale  and  purchase  of  an  article  to  be  applied  to  a  spe- 
cific purpose.  Judgment  reversed. 


JAMES  DRUMMOND  &  SONS  v.  E.  H.  VAN  INGEN  &  Co. 
In  the  House  of  Lords,  April  1,   1887. 

[Reported  in  12  Appeal  Cases,  284.] 

Appeal  from  a  decision  of  the  Court  of  Appeal. 

The  following  statement  of  the  facts  and  pleadings  is  taken  from  the 
judgment  of  the  Earl  of  Selborne. 

The  respondents,  in  July,  1883,  ordered  from  the  appellants,  who  are 
•worsted  cloth  manufacturers  at  Bradford,  certain  goods,  described  in 
the  contracts  as,  "  mixt  worsted  coatings,"  which  were  to  be,  in 
"  quality  and  weight,"  equal  to  certain  numbered  samples,  which  the 
appellants  had  previously  furnished  to  the  respondents.  The  goods 
wire  of  a  class  well-known  in  the  trade  under  the  denomination  ot 
"corkscrew  twills."  They  were  delivered  to  the  respondents,  whose 
object  (known  to  the  appellants)  was  to  sell  them  to  clothiers  or  tailors 
in  the  United  States  of  America.  All,  or  great  part  of  them,  wrere, 
in  fact,  disposed  of  to  various  customers  of  the  respondents  in  the 
United  States  ;  but  they  were  returned  upon  the  respondents1  hands, 
as  not  suitable  for  the  purposes  of  that  trade.  They  were  afterwards 
sold  by  auction,  at  a  loss ;  and  an  action  (for  the  price  of  the  goods) 
having  been  brought  by  the  appellants  against  the  respondents,  a 
counter-claim  was  made  by  the  respondents  to  recover  damages  against 
the  appellants,  on  the  ground  that  the  goods  were  not  merchantable, 
a-   they  ought  to  have  been. 

The  goods  were,  in  point  of  fact,  made  exactly  in  the  same  manner 
as  the  samples;  and  the  defect  alleged  to  exist  in  them,  viz.,  that  ot 
"  slipperiness "  (or  want  of  such  cohesion  in  the  texture  of  the  cloth, 
between  the  warp  and  weft,  as  was  requisite  to  prevent  them  from  giving 
■way  under  the  strain  of  ordinary  wear  when  made  up  into  coats  in  the 
usual  manner)  existed  equally  in  those  samples. 

The  defence  to  the  counter-claim  was,  in  substance,  that  the  goods 
were  exactly  what  had  been  ordered;  that  there  was  no  implied  war- 
ranty that  they  should  be  merchantable  for  any  purpose,  for  which 
goods  of  such  a  make  and  texture  would  not  be  fit;  that  goods  of  that 


SECT.  II.]  DRUMMOND   V.    VAN    INGEN. 

particular  make  and  texture  were  not  wholly  salable,  or  incapable  of 
being  made  up  (if  the  tailor  did  his  work  in  a  manner  suitable  to  their 
quality)  into  coats  which,  might  endure  reasonable  wear;  that  the  de- 
tect, such  as  it  was,  was  one  of  degree  only,  and  was  so  far  patent, 
that  by  such  examination  of  the  sample  as  the  manufacturer  had  a 
right,  under  the  circumstances,  to  assume  the  merchant  to  have  made, 
it  might,  and  ought  to,  have  been  known. 

An  order  having  been  made  for  the  trial  of  certain  preliminary  issues 
in  fact  by  Da}',  J.,  without  a  jury,  before  any  of  the  other  questions  of 
fact,  that  learned  judge  found  upon  the  issues  as  follows:  — 

1.  That  there  was  an  implied  warranty  on  the  sale  of  the  goods  that 
the  cloth  should  be  merchantable  generally  as  worsted  coatings,  and 
should  be  properly  manufactured,  and  should  be  suitable  to  be  made 
up  into  coats  in  the  ordinary  course  of  tailors'  work.  2.  That  the 
plaintiffs  did  sell  the  cloth  for  the  purpose  of  being  made  up  into  coats 
in  the  ordinary  course  of  tailors'  work.  3.  That  it  was  an  express 
term  of  the  contract  of  sale  that  the  cloth  should  be  efficiently  woaded 
and  dyed  so  as  not  to  fade  unduly.  4.  That  the  cloth  was  not  mer- 
chantable as  worsted  coating,  and  was  not  properly  manufactured  and 
suitable  to  be  made  up  into  coats  in  the  ordinary  course  of  tailoring, 
and  was  not  efficiently  woaded  and  dyed  within  the  meaning  of  the 
contract.  5.  That  the  cloth  was  sold  by  sample  in  the  sense  that  it 
was  to  be  similar  to  a  sample  produced  in  respect  of  weight  and  quality, 
and  that  the  term  "quality"  covers  strength  as  distinguished  from 
rottenness  in  cloth,  but  the  judge  is  not  satisfied  that  the  term  quality 
has  been  ordinarily  applied  to  such  a  defect  as  is  alleged  to  exist  in  the 
cloth  delivered  under  the  contract,  that  is  to  say,  slipperiness  of  weft 
under  warp.  6.  That  the  cloth  did  correspond  with  the  sample.  7.  That 
the  sample  was  made  to  the  defendants'  order,  and  was  seen  and  ap- 
proved of  by  them  as  to  pattern,  color,  and  generally  as  to  handle. 
8  and  9.  That  the  defects  both  of  structure  and  color  in  the  cloth  and 
in  the  sample  were  latent,  and  were  not  apparent  or  discoverable  upon 
such  inspection  as  was  ordinary  and  usual  upon  sales  of  worsted  cloths 
of  this  class. 

The  Court  of  Appeal  (Lord  Esher,  M.  R.,  and  Fry,  L.  J.)  affirmed  the 
findings  of  Da}-,  J.,  upon  the  ground  that  there  having  been  a  conflict 
of  evidence  the  court  was  not  so  well  able  to  decide  as  the  learned 
judge  to  which  set  of  witnesses  credit  ought  to  be  given,  and  ought  not 
therefore  to  overrule  his  finding.  From  this  decision  the  present  appeal 
was  brought. 

Sir  11.   Webster,  A.-G. .  and  R.  0.  B.  Lane,  for  the  appellants. 

Waddy,  Q.  C,  and  E.  Tindal  Atkinson,  Q.  C.  (  Wilberforce,  with 
them),  for  the  respondents. 

Lord  Herschell.  My  Lords,  I  think  that  the  general  principles  of 
law  which  have  to  be  applied  to  the  facts  of  this  case  are  well  setth  d 
and  beyond  question.  It  was  laid  down  in  .Tones  v.  Bri  ht.  *>  Bing.  533, 
that  where  goods  are  ordered  of  a  manufacturer  for  a  particular  pur- 


616  drummond"  v.  van  ingen.  [chap.  v. 

pose,  he  impliedly  warrants  that  the  goods  he  supplies  are  fit  for  that 
purpose.  This  view  of  the  law  has  been  constantly  acted  upon  from 
the  time  of  that  decision,  and  was  not  impeached  by  the  learned 
counsel  for  the  appellants.  It  is  equally  well  settled  that  upon  a  sale 
of  goods  of  a  specified  description,  which  the  purchaser  has  no  oppor- 
tunity of  examining  before  the  sale,  the  goods  must  not  only  answer 
that  specific  description,  but  must  be  merchantable  under  that  descrip- 
tion. This  doctrine  was  laid  down  in  Jones  v.  Just,  Law  Rep.  3  Q.  B. 
11)7,  where  all  the  previous  authorities  on  the  point  were  reviewed.  In 
the  case  of  Mody  v.  Gregson,  Law  Rep.  4  Ex.  49,  in  the  P^xchequer 
Chamber,  the  decision  in  Jones  v.  Just  was  approved  of  and  acted 
upon,  and  it  was  further  held  that  the  implied  warranty  that  the 
goods  supplied  are  merchantable  was  not  absolutely  excluded  by  the 
fact  that  the  goods  were  sold  by  sample,  and  that  the  bulk  precisely 
corresponded  with  it,  but  was  onby  excluded  as  regards  those  matters 
which  the  purchaser  might,  by  due  diligence  in  the  use  of  all  ordinary 
and  usual  means,  have  ascertained  from  an  examination  of  the  sample. 
I  think  that  the  law  enunciated  in  these  cases  is  sound  and  not  open  to 
doubt.  I  proceed  to  consider  its  application  to  the  facts  of  the  case 
before  us. 

The  plaintiffs  were  manufacturers  at  Bradford  ;  the  defendants  were 
merchants  dealing  in  woollen  and  worsted  cloths,  carrying  ou  business 
in  Huddersfield  and  New  York. 

The  order  for  the  goods  in  respect  of  which  the  present  litigation  has 
arisen  was  given  by  the  defendants  to  the  plaintiffs  in  1883.  The  goods 
ordered  were  described  as  "  worsted  coatings,"  and  they  were  to  cor- 
respond in  quality  and  weight  with  patterns  which  had  been  supplied 
by  the  plaintiffs.  They  were  of  a  description  known  in  the  trade  as 
"corkscrew,"  having  the  warp  on  either  side  and  the  weft  not  exposed 
to  view.  The  goods,  when  delivered,  were  shipped  to  the  United  States, 
and  sold  by  the  defendants  to  various  purchasers  there.  It  turned  out, 
as  I  think  the  evidence  establishes,  that  owing  to  the  mode  of  manu- 
facture there  was  a  great  tendency  in  the  warp  to  slip,  and  this  to  so 
serious  an  extent  that  when  made  into  garments  in  the  ordinary  manner 
the  seams  gave  way  with  no  more  than  ordinaiy  tension  and  the  braid 
became  detached  from  the  cloth.  In  consequence  of  this  defect  many 
purchasers  from  the  defendants  returned  the  goods  to  them,  or  com- 
pelled them  to  make  allowances,  for  which  the}'  sought  compensation 
by  counter-claim  in  the  present  action.  It  is  important  to  observe 
that  the  contract  for  1883  was  not  the  first  dealing  between  the  parties. 
The  defendants  had  purchased  of  the  plaintiffs  a  quantity  of  "cork- 
screw "  worsted  coatings  in  the  previous  year,  and  I  cannot  see  any 
evidence  in  the  correspondence  which  passed,  or  in  the  oral  communica- 
tions, to  show  that  it  was  intended  by  either  of  the  parties  to  the  con- 
tract of  1883  that  the  goods  should  be  of  a  different  character  to  those 
of  the  previous  year  in  any  particular  material  to  the  controversy  which 
has  to  be  determined  in  this  action.     It  is  true  that  the  purchasers 


SECT.  II.]  DRUMMOND    V.    VAN    INGEN.  647 

desired  goods  of  a  somewhat  softer  "-handle;"  but  I  think  it  is 
abundantly  clear  on  the  evidence  that  this  was  a  matter  of  "  finish," 
and  that  it  was  not  the  endeavor  to  give  a  softer  "  handle"  which  led 
to  the  delect  of  excessive  slipping. 

I  have  said  that  the  goods  were,  by  the  order,  to  conform  to  certain 
patterns  supplied  by  the  plaintiffs  to  the  defendants,  and  approved  of 
by  them.  There  is  no  doubt  that  the  bulk  of  the  goods  corresponded 
in  every  particular  with  these  patterns;  and  this  the  plaintiffs  allege, 
is  a  complete  answer  to  the  defendants'  claim.  The  tendency  to  slip  is 
not,  they  insist,  properly  to  be  called  a  defect  but  a  characteristic  of 
the  manufactured  article,  which  existed  in  the  sample  just  as  much  as 
in  the  bulk  of  the  goods.  I  do  not  think  it  is  very  material  what  name 
is  given  to  it;  but  1  confess  it  strikes  me  that  a  characteristic  arising 
from  a  particular  mode  of  manufacture  which  renders  the  manufactured 
article  less  useful  for  the  purpose  for  which  such  an  article  is  ordinarily 
used,  without,  as  far  as  appears,  any  counterbalancing  advantage,  may 
well  be  called  a  defect. 

I  think  it  is  proved  by  the  evidence  that  this  defect  existed  to  such 
an  extent  that  the  worsted  coatings  could  not  be  used  for  the  purpose 
of  being  made  into  coats  in  the  manner  usual  with  goods  of  the  same 
general  description  and  quality,  and  that  they  could  only  be  made  into 
garments  capable  of  resisting  ordinary  tension  by  the  adoption  of 
special  precautions  both  in  regard  to  breadth  of  seam  and  method  of 
sewing.  The  question  arises  whether,  in  these  circumstances,  the  plain- 
tiffs have  complied  with  their  contract  by  delivering  coatings  precisely 
corresponding  in  quality  and  weight  with  the  patterns,  or  whether  thev 
are  liable  to  the  defendants. 

Let  me  consider,  first,  how  the  case  would  have  stood  if  no  samples 
had  been  supplied.  Suppose  the  defendants  had  simply  ordered  worsted 
coatings  similar  to  those  the}'  had  purchased  in  the  previous  year,  but 
with  a  difference  of  color,  design,  and  handle.  Could  the  plaintiffs 
have  justified  supplying  under  such  an  order  coatings  such  as  those 
which  have  given  rise  to  this  litigation?  It  is  true  that  the  purpose 
for  which  the  goods  were  required  was  not,  as  in  Jones  v.  Bright, 
supra,  stated  in  express  terms,  but  it  was  indicated  by  the  very 
designation  of  the  goods,  "coatings."  I  think  that  upon  such  an  order 
the  merchant  trusts  to  the  skill  of  the  manufacturer,  and  is  entitled  to 
trust  to  it,  and  that  there  is  an  implied  warranty  that  the  manufactured 
article  shall  not  by  reason  of  the  mode  of  manufacture  be  unfit  for  use 
in  the  manner  in  which  goods  of  the  same  qualit}-  of  material,  and  the 
same  general  character  and  designation,  ordinarily  would  be  used.  I 
think  too  that  where  the  article  does  not  comply  with  such  a  warrant v 
it  ma}-  properly  be  said  to  be  unmerchantable  in  the  sense  in  which 
that  word  is  used  in  relation  to  transactions  of  this  nature. 

It  was  urged  for  the  appellants  by  the  Attorney -General,  in  his  able 
argument  at  the  bar,  that  it  would  be  unreasonable  to  require  that  a 
manufacturer  should  be  cognizant  of  all  the  purposes   to  which    the 


C48  DEtJMMOND   V.    VAN   INGEN.  [CHAP.  V. 

article  he  manufactures  might  be  applied,  and  that  he  should  be 
acquainted  with  all  the  trades  in  which  it  may  be  used.  I  agree. 
Where  the  article  may  be  used  as  one  of  the  elements  in  a  variety 
of  other  manufactures,  I  think  it  may  be  loo  much  to  impute  to  the 
maker  of  this  common  article  a  knowledge  of  the  details  of  every  man- 
ufacture into  which  it  may  enter  in  combination  with  other  materials. 
But  no  such  question  arises  here.  There  seems  nothing  unreasonable 
in  expecting  that  the  maker  of  tk  coatings"  should  know  that  they  are 
to  be  turned  into  coats  and  other  garments,  and  that  lie  should  further 
know  what  coatings  will  and  what  will  not  be  capable  of  use  for  this 
purpose  in  the  ordinary  methods. 

It  seems  to  me  not  open  to  doubt  that  in  the  case  which  I  have 
supposed  the  manufacturer  would  be  liable.  Does  it  then  make  any 
difference  that  the  plaintiffs  furnished  patterns  which  were  approved  of 
by  the  defendants,  and  that  the  goods  delivered  were  in  complete  con- 
formity with  their  patterns?  Except  upon  the  assumption  (with  which 
I  will  deal  presently)  that  the  patterns  ought  to  have  conveyed  to  tlie 
defendants  knowledge  of  the  defect  of  which  they  complain,  I  cannot 
think  that  it  does. 

When  a  purchaser  states  generalby  the  nature  of  the  article  he  re- 
quires, and  asks  the  manufacturer  to  supply  specimens  of  the  mode  in 
which  he  proposes  to  carry  out  the  order,  he  trusts  to  the  skill  of  the 
manufacturer  just  as  much  as  if  he  asked  for  no  such  specimens.  And 
I  think  he  has  a  right  to  rely  on  the  samples  supplied  representing  a 
manufactured  article  which  will  be  fit  for  the  purposes  for  which  such 
an  article  is  ordinarily  used,  just  as  much  as  he  has  a  right  to  rely  on 
manufactured  goods  supplied  on  an  order  without  samples  complying 
with  such  a  warranty. 

I  adopt  what  was  said  by  Willes,  J.,  in  Mody  v.  Gregson,  Law  Rep. 
1  Ex.  49,  53  :  "  The  object  and  use  of  either  inspection  of  bulk  or 
sample  alike  are  to  give  information,  disclosing  directby  through  the 
senses  what  any  amount  of  circumlocution  might  fail  to  express.  It 
seems  difficult,  therefore,  to  ascribe  any  greater  effect  to  a  sample  in 
excluding  implication  than  would  be  ascribed  to  express  words  in  the 
contract  giving,  as  far  as  words  could  give,  the  same  amount  of  infor- 
mation ;  and  as  to  such  words,  the  doctrine  that  an  express  provision 
excludes  implication,  does  not  affect  cases  in  which  the  express  pro- 
vision appears  on  the  true  construction  of  the  contract  to  have  been 
superadded   for  the   benefit  of  the  buyer." 

There  is  no  doubt  that  the  implied  warranty  will  be  excluded  as  re- 
gards  any  defects  which  the  sample  would  disclose  to  a  buyer  of  ordinary 
diligence  and  experience.  The  inquiry,  therefore,  arises  whether  the 
defendants  by  "  due  diligence  in  the  use  of  all  ordinary  and  usual 
means  "  would  have  detected  in  the  patterns  the  defects  of  which  they 
now  complain.  I  think  not.  What  is  "due  diligence "  must  depend 
upon  the  circumstances.  Having  regard  to  the  order  given  in  the 
previous  year,  and  the  mode  in  which  that  order  was  fulfilled,  I  think 


SECT.  II.]  BARNARD    V.    KELLOGG.  649 

that  when  the  defendants  made  the  contract  there  was  nothing  which 
could  reasonably  load  them  to  anticipate  that  the  patterns  represented 
good-  possessing  the  defect  which  was,  in  fact,  inherent  in  them.  And 
I  am  satisfied  upon  the  evidence  that  the  defendants,  who  undoubtedly 
did  not  discern  the  defect,  did  not  fail  to  do  so  from  neglecting  to  use 
the  means  usually  adopted  by  buyers  under  like  circumstances. 

I  have  therefore  arrived  at  the  conclusion  that  the  learned  judge  who 
tried  the  case  took  a  correct  view  of  the  facts  on  this  part  of  it,  and 
that  his  decision  was  properly  affirmed  by  the  Court  of  Appeal. 

As  regards  the  other  complaint,  viz.,  that  the  goods  were  not  woaded 
according  to  contract,  I  have  nothing  to  add  to  what  has  been  said  by 
the  noble  Karl  on  the  woolsack.  It  depended  entirely  upon  disputed 
questions  of  fact,  and  I  am  not  satisfied  that  they  have  been  errone- 
ously determined. 

I  therefore  concur  in  the  motion  that  has  been  made. 

Order  appealed  from  affirmed;  and  appeal  dismissed  with  costs.1 


BARNARD  v.  KELLOGG. 
United  States  Supreme  Court,  December,  1870. 

[Reported  in  10  Wallace,  383.] 

Error  to  the  Circuit  Court  for  the  District  of  Connecticut,  the  case 
being  this :  — 

In  the  summer  of  1864,  Barnard,  a  commission  merchant  residing  in 
Boston,  Massachusetts,  placed  a  lot  of  foreign  wool,  received  from  a 
shipper  in  Buenos  Ayres,  and  on  which  he  had  made  advances,  in  the 
hands  of  Bond  &  Co.,  wool  brokers  in  Boston,  to  sell,  with  instructions 
not  to  sell  unless  the  purchaser  came  to  Boston  and  examined  the  wool 
for  himself.  These  brokers  sent  to  E.  N.  Kellogg  &  Co.,  merchants  and 
dealers  in  wool,  in  Hartford,  Connecticut,  at  their  request,  samples  of 
the  different  lots  of  wool,  and  communicated  the  prices  at  which  each 
lot  could  be  obtained.  Kellogg  &  Co.,  in  reply,  offered  to  take  the 
wool,  all  round,  at  fifty  cents  a  pound,  if  equal  to  the  samples  furnished, 
and  Bond  &  Co.,  for  their  principal,  on  Saturday,  the  6th  day  of  August, 
by  letter  and  telegram,  accepted  this  offer,  provided  Kellogg  &  Co. 
examined  the  wool  on  the  succeeding  Monday  and  reported  on  that  day 
whether  or  not  they  would  take  it.  Kellogg  &  Co.  acceded  to  this  con- 
dition, and  the  senior  member  of  the  firm  repaired  to  Boston  on  the  day 
named  and  examined  four  bales  in  the  broker's  office  as  fully  as  he  de- 
sired, and  was  offered  an  opportunity  to  examine  all  the  bales,  and  have 
them  opened  for  his  inspection.  This  he  declined  to  do,  and  concluded 
the  purchase  on  the  joint  account  of  all  the  plaintiffs.     Some  months 

1  The  Earl  of  Selborne  and  Lord  Macxaghten  delivered  concurring  opinions. 


650  BAKNAED    V.    KELLOGG.  [CHAP.  V. 

after  tins,  on  opening  the  bales  it  was  ascertained  that  a  portion  of  them 
were  falsely  and  deceitfully  packed,  by  placing  in  the  interior  rotten 
and  damaged  wool  and  tags,  which  were  concealed  by  an  outer  covering 
of  fleeces  in  their  ordinary  state.  This  condition  of  things  had  been 
unknown  to  Barnard,  who  had  acted  in  good  faith.  It  was,  however, 
communicated  to  him,  and  he  was  asked  to  indemnify  the  purchaser 
against  the  loss  he  sustained  in  consequence  of  it.  This  he  declined  to 
do,  ami  the  purchaser  brought  this  suit.     The  declaration  counted  :  — 

1st.    Upon  a  sale  by  sample. 

2d.  Upon  a  promise,  express  or  implied,  that  the  bales  should  not  be 
falsely  packed. 

3d.  Upon  a  promise,  express  or  implied,  that  the  wool  inside  of  the 
bales  should  not  differ  from  the  samples  by  reason  of  false  packing. 

The  court  below,  trying  the  cause  without  the  intervention  of  a  jury, 
held  that  there  was  no  express  warranty  that  the  bales  not  examined 
should  correspond  to  those  exhibited  at  the  brokers'  store,  and  that  the 
law  under  the  circumstances  could  not  imply  any.  But  the  court  found 
as  matters  of  fact,  that  the  examination  of  the  interior  of  the  bulk  of 
bales  of  wool  generally,  put  up  like  these,  is  not  customary  in  the  trade  ; 
and  though  possible,  would  be  very  inconvenient,  attended  with  great 
labor  and  delay,  and  for  these  reasons  was  impracticable  ;  and  that  by 
the  custom  of  merchants  and  dealers  in  foreign  wool  in  bales  in  Boston 
and  New  York,  the  principal  markets  of  this  country  where  such  wool 
is  sold,  there  is  an  implied  warranty  of  the  seller  to  the  purchaser  that 
the  same  is  not  falsely  or  deceitfully  packed,  and  the  court  held,  as  a 
matter  of  law,  that  the  custom  was  valid  and  binding  on  the  parties  to 
this  contract,  and  gave  judgment  for  the  purchaser. 

This  writ  of  error  was  taken  to  test  the  correctness  of  this  ruling. 

Mr.  N.  Shipman,  in  support  of  it. 

Mr.  Charles  E.  Perkins,  contra. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

No  principle  of  the  common  law  has  been  better  established,  or  more 
often  affirmed,  both  in  this  country  and  in  England,  than  that  in  sales 
of  personal  propcrt}-,  in  the  absence  of  express  warranty,  where  the 
buyer  has  an  opportunity  to  inspect  the  commodity,  and  the  seller  is 
guiltv  of  no  fraud,  and  is  neither  the  manufacturer  nor  grower  of  the 
article  he  sells,  the  maxim  of  caceat  emptor  applies.  Such  a  rule,  re- 
quiring the  purchaser  to  take  care  of  his  own  interests,  has  been  found 
best  adapted  to  the  wants  of  trade  in  the  business  transactions  of  life. 
And  there  is  no  hardship  in  it,  because  if  the  purchaser  distrusts  his 
judgment  he  can  require  of  the  seller  a  warranty  that  the  quality  or 
condition  of  the  goods  he  desires  to  buy  corresponds  with  the  sample 
exhibited.  If  he  is  satisfied  without  a  warranty,  andean  inspect  and 
declines  to  do  it,  he  takes  upon  himself  the  risk  that  the  article  is  mer- 
chantable. And  he  cannot  relieve  himself  and  charge  the  seller  on  the 
ground  thai  the  examination  will  occupy  time,  and  is  attended  with 
labor  and  inconvenience.     If  it  is  practicable,  no  matter  how  inconve- 


.SECT.  II.]  BARNARD    V.    KELLOGG.  GjI 

nient,  the  rule  applies.  One  of  the  main  reasons  why  the  rule  does  not 
apply  in  the  ease  of  a  sale  by  sample,  is  because  there  is  no  opportunity 
for  a  personal  examination  of  the  hulk  of  the  commodity  which  the 
sample  is  shown  to  represent  Of  such  universal  acceptance  is  the 
doctrine  of  caveat  emptor  in  this  country,  that  the  courts  of  all  the  States 
in  the  Union  where  the  common  law  prevails,  with  one  exception  (South 
Carolina),  sanction  it. 

Applying  this  acknowledged  rule  of  law  to  this  case,  it  is  easy  to 
settle  the  rights  of  the  parties,  and  to  interpret  the  contract  which  they 
made.  That  the  wool  was  not  sold  by  sample  clearly  appears.  And  it 
is  equally  clear  that  both  sides  understood  that  the  buyer,  if  he  bought, 
was  to  be  his  own  judge  of  the  quality  of  the  article  he  purchased. 
Barnard  expressly  stipulated,  as  a  condition  of  sale,  that  Kellogg  should 
examine  the  wool,  and  he  did  examine  it  for  himself.  If  Kellogg  in- 
tended to  rely  on  the  samples  as  a  basis  of  purchase,  why  did  he  go  to 
Boston  and  inspect  the  bales  at  all,  alter  notice  that  such  inspection  was 
necessary  before  the  sale  could  be  completed?  His  conduct  is  wholly 
inconsistent  with  the  theory  of  a  sale  by  sample.  If  he  wanted  to  secure 
himself  against  possible  loss,  he  should  either  have  required  a  warranty 
or  taken  the  trouble  of  inspecting  fully  all  the  bales.  Not  doing  this, 
he  cannot  turn  round  and  charge  the  seller  with  the  consequences  of  his 
own  negligence.  Barnard  acted  in  good  faith,  and  did  not  know  or 
have  reason  to  believe  that  the  wool  was  falsely  packed.  The  sale  on 
his  part  was  intended  to  be  upon  the  usual  examination  of  the  article, 
and  the  proceeding  by  Kellogg  shows  that  he  so  understood  it,  ami  it  is 
hard  to  see  what  ground  of  complaint  even  he  has  against  Barnard.  It 
will  not  do  to  say  that  it  was  inconvenient  to  examine  all  the  bales,  be- 
cause if  inconvenient  it  was  still  practicable,  and  that  is  all,  as  we  have 
seen,  that  the  law  requires.  The  case  of  Salisbury  v.  Stainer,  reported 
in  19th  Wendell,  page  158,  is  similar  in  its  facts  to  this  case,  and  the 
court  applied  to  it  the  rule  of  caveat  emptor.  There  bales  of  hemp 
were  sold  which  turned  out  to  be  falsely  packed.  The  purchaser  wished 
to  treat  the  sale  as  a  sale  by  sample  ;  but  the  court  said  to  him,  k>  You 
were  told  to  examine  for  yourself,  and  having  opened  one  bale,  and  at 
liberty  to  open  all.  and  omitting  to  do  it,  you  cannot  be  permitted  to 
allege  that  the  sale  was  a  sale  by  sample,  nor  to  recover  damages  as  on 
an  implied  warranty."  It  is,  therefore,  clear  by  the  general  principles 
of  law.  adopted  in  the  interests  of  trade  and  commerce,  that  the  seller 
in  this  instance  was  not  answerable  over  for  any  latent  defects  in  the 
bales  of  wool. 

But  the  learned  court  below  having  found  that  by  the  custom  of  deal- 
ers in  wool  in  New  York  and  Boston  there  is  a  warranty  by  the  seller 
implied  from  the  fact  of  sale,  that  the  wool  is  not  falsely  packed,  ai.d 
having  held  Barnard  bound  by  it.  the  inquiry  arises  whether  such  a 
custom  can  be  admitted  to  control  the  general  rules  of  law  in  relation  to 
the  sale  of  personal  property. 

It  is  to  be  regretted  that  the  decisions  of  the  courts,  defining  what 


652  BARNARD   V.   KELLOGG.  [CHAP.  V. 

local  usages  may  or  may  not  do,  have  not  been  uniform.  In  some 
judicial  tribunals  there  has  been  a  disposition  to  narrow  the  limits  of 
this  species  of  evidence,  in  others  to  extend  them,  and  on  this  account 
mainly  the  conflict  in  decision  arises.  But  if  it  is  hard  to  reconcile  all 
the  cases,  it  may  be  safely  said  they  do  not  differ  so  much  in  principle, 
as  in  the  application  of  the  rules  of  law.  The  proper  office  of  a  custom 
or  usage  in  trade  is  to  ascertain  and  explain  the  meaning  and  intention 
of  the  parties  to  a  contract,  whether  written  or  in  parol,  which  could 
not  be  done  without  the  aid  of  this  extrinsic  evidence.  It  does  not  go 
beyond  this,  and  is  used  as  a  mode  of  interpretation  on  the  theory  that 
the  parties  knew  of  its  existence,  and  contracted  with  reference  to  it. 
It  is  often  employed  to  explain  words  or  phrases  in  a  contract  of  doubt- 
ful signification,  or  which  may  be  understood  in  different  senses,  accord- 
ing to  the  subject-matter  to  which  they  are  applied.  But  if  it  be 
inconsistent  with  the  contract,  or  expressly  or  by  necessary  implication 
contradicts  it,  it  cannot  be  received  in  evidence  to  affect  it.  Usage, 
says  Lord  Lyndhurst,  "  may  be  admissible  to  explain  what  is  doubtful ; 
it  is  never  admissible  to  contradict  what  is  plain."  And  it  is  well  settled 
that  usage  cannot  be  allowed  to  subvert  the  settled  rules  of  law.  What- 
ever tends  to  unsettle  the  law,  and  make  it  different  in  the  different 
communities  into  which  the  state  is  divided,  leads  to  mischievous  con- 
sequences, embarrasses  trade,  and  is  against  public  policy.  If,  there- 
fore, on  a  given  state  of  facts,  the  rights  and  liabilities  of  the  parties  to 
a  contract  are  fixed  by  the  general  principles  of  the  common  law,  they 
cannot  be  changed  by  any  local  custom  of  the  place  where  the  contract 
was  made.  In  this  case  the  common  law  did  not,  on  the  admitted  facts, 
imply  a  warranty  of  the  good  quality  of  the  wool,  and  no  custom  in  the 
sale  of  this  article  can  be  admitted  to  imply  one.  A  contrary  doctrine, 
says  the  court,  in  Thompson  v.  Ashton,  14  Johnson,  317,  "would  be 
extremely  pernicious  in  its  consequences,  and  render  vague  and  uncer- 
tain all  the  rules  of  law  on  the  sales  of  chattels." 

In  Massachusetts,  where  this  contract  was  made,  the  more  recent  de- 
cisions on  the  subject  are  against  the  validity  of  the  custom  set  up  in 
this  case.  In  Dickinson  v.  Gay,  7  Allen,  29,  which  was  a  sale  of  cases 
of  satinets  made  by  samples,  there  were  in  both  the  samples  and  the 
goods  a  latent  defect  not  discoverable  by  inspection,  nor  until  the  goods 
were  printed,  so  that  they  were  unmerchantable.  It  was  contended  that 
by  custom  there  was  in  such  a  case  a  warranty  implied  from  the  sale 
that  the  goods  were  merchantable.  But  the  court,  after  a  full  review  of 
all  the  authorities,  decided  that  the  custom  that  a  warranty  was  implied, 
when  by  law  it  was  not  implied,  was  contrary  to  the  rule  of  the  common 
law  on  the  subject,  and  therefore  void.  If  anything,  the  case  of  Dodd 
v.  Farlow,  11  Allen,  426,  is  more  conclusive  on  the  point.  There  forty 
bales  of  goat-skins  were  sold  by  a  broker,  who  put  into  the  memoran- 
dum of  side,  without  authority,  the  words  "to  be  of  merchantable 
quality  and  in  good  order." 

It  was  contended  that  by  custom,  in  all  sales  of  such  skins,  there  was 


SECT.  II.]  BAKNARD   V.   KELLOGG.  653 

an  implied  warrant}*  that  they  were  of  merchantable  quality,  and. 
therefore,  the  broker  was  authorized  to  insert  the  words,  but  the  court 
held  the  custom  itself  invalid.  They  say,  "  It  contravenes  the  prin- 
ciple, which  lias  been  sanctioned  and  adopted  by  this  court,  niton  full 
and  deliberate  consideration,  that  no  usage  will  be  held  legal  or  binding 
on  parties,  which  not  only  relates  to  and  regulates  a  particular  course  or 
mode  of  dealing,  but  which  also  engrafts  on  a  contract  of  sale  a  stipula- 
tion or  obligation  which  is  inconsistent  with  the  rule  of  the  common  law 
on  the  subject."  It  is  clear,  therefore,  that  in  Massachusetts,  where 
the  wool  was  sold  and  the  seller  lived,  the  usage  in  question  would  not 
have  been  sanctioned. 

In  New  York  there  are  some  cases  which  would  seem  to  have  adopted 
a  contrary  view,  but  the  earlier  and  later  cases  agree  with  the  Massa- 
chusetts decisions.  The  question  in  Frith  v.  Barker,  2  Johnson,  327, 
was,  whether  a  custom  was  valid  that  freight  must  be  paid  on  goods  lost 
by  peril  of  the  sea,  and  Chief  Justice.  Kent,  in  deciding  that  the  custom 
was  invalid,  says:  "Though  usage  is  often  resorted  to  for  explanation 
of  commercial  instruments,  it  never  is,  or  ought  to  be,  received  to  con- 
tradict a  settled  rule  of  commercial  law."  In  Woodruff  v.  Merchants' 
Bank,  25  Wendell,  673,  a  usage  in  the  city  of  New  York,  that  days  of 
grace  were  not  allowed  on  a  certain  description  of  commercial  paper, 
was  held  to  be  illegal.  Nelson,  Chief  Justice,  on  giving  the  opinion  of 
that  court,  says:  --The  effect  of  the  proof  of  usage  in  this  case,  if 
sanctioned,  would  be  to  overturn  the  whole  law  on  the  subject  of  bills  of 
exchange  in  the  city  of  New  York  ; "  and  adds,  "  if  the  usage  prevails 
there,  as  testified  to,  it  cannot  be  allowed  to  control  the  settled  and 
acknowledged  law  of  the  State  in  respect  to  this  description  of  paper." 
And,  in  Beirne  v.  Dord,  1  Selden,  95,  the  evidence  of  a  custom  that  in 
the  sale  of  blankets  in  bales,  where  there  was  no  express  warrant)-,  the 
seller  impliedly  warranted  them  all  equal  to  a  sample  shown,  was  held 
inadmissible,  because  contrary  to  the  settled  rule  of  law  on  the  subject 
of  chattels.  But  the  latest  authority  in  that  State  on  the  subject  is  the 
case  of  Simmons  v.  Law,  3  Keys,  219.  That  was  an  action  to  recover 
the  value  of  a  quantity  of  gold-dust  shipped  by  Simmons  from  San 
Francisco  to  New  York  on  Law's  line  of  steamers,  which  was  not  de- 
livered. An  attempt  was  made  to  limit  the  liability  of  the  common 
carrier  beyond  the  terms  of  the  contract  in  the  bill  of  lading  by  proof 
of  the  usage  of  the  trade,  which  was  well  known  to  the  shipper,  but  the 
evidence  was  rejected.  The  court,  in  commenting  on  the  question,  say  : 
-•  A  clear,  certain,  and  distinct  contract  is  not  subject  to  modification  In- 
proof  of  usage.  Such  a  contract  disposes  of  all  customs  by  its  own 
terms,  and  by  its  terms  alone  is  the  conduct  of  the  parties  to  be  regu- 
lated, and  their  liability  to  be  determined.'' 

In  Pennsylvania  this  subject  has  been  much  discussed,  and  not  always 
with  the  same  result.  At  an  early  day  the  Supreme  Court  or'  the  State 
allowed  evidence  of  usage,  that  in  the  city  of  Philadelphia  the  seller  of 
cotton  warranted  against  latent  defects,  though  there  were  neither  fraud 


65-4  BARNARD   V.    KELLOGG.  [CHAP.  V. 

on  his  part  or  actual  warranty.  Chief  Justice  Gibson,  at  the  time,  dis- 
sented from  the  doctrine,  and  the  same  court,  in  later  cases,  has  disap- 
proved of  it,  and  now  bold  that  a  usage,  to  be  admissible,  kt  must  not 
conflict  with  the  settled  rules  of  law,  nor  go  to  defeat  the  essential  terms 
of  the  contract." 

It  would  unnecessarily  lengthen  this  opinion  to  review  any  further  the 
American  authorities  on  this  subject.  It  is  enough  to  say,  as  a  general 
thing,  that  they  are  in  harmony  with  the  decisions  already  noticed.  See 
the  American  note  to  Wigglesworth  v.  Dallison,  1  Smith's  Leading- 
Cases,  where  the  cases  are  collected  and  distinctions  noticed. 

The  necessitj-  for  discussing  this  rule  of  evidence  has  often  occurred 
in  the  highest  courts  of  England  on  account  of  the  great  extent  and 
variety  of  local  usages  which  prevail  in  that  country,  but  it  would  serve 
no  useful  purpose  to  review  the  cases.  They  are  collected  in  the  very 
accurate  English  note  to  Wigglesworth  v.  Dallison,  and  are  not  different 
in  principle  from  the  general  current  of  the  American  cases.  If  any  of 
the  cases  are  in  apparent  conflict,  it  is  not  on  account  of  any  difference 
in  opinion  as  to  the  rules  of  law  which  are  applicable. 

These  rules,  says  Chief  Justice  Wilde,  in  Spartali  v.  Benecke,  10 
Common  Bench,  222,  "  are  well  settled,  and  the  difficulty  that  has 
arisen  respecting  them  has  been  in  their  application  to  the  varied  cir- 
cumstances of  the  numerous  cases  in  which  the  discussion  of  them  has 
been  involved  "  But  this  difficulty  does  not  exist  in  applying  these 
rules  to  the  circumstances  of  this  case.  It  is  apparent  that  the  usage 
in  question  was  inconsistent  with  the  contract  which  the  parties  chose 
to  make  for  themselves,  and  contraiy  to  the  wise  rule  of  law  governing 
the  sales  of  personal  property.  It  introduced  a  new  element  into  their 
contract,  and  added  to  it  a  warrant}-,  which  the  law  did  not  raise,  nor 
the  parties  intend  it  to  contain.  The  parties  negotiated  on  the  basis  of 
caveat  emptor,  and  contracted  accordingly.  This  they  had  the  right  to 
do,  and  by  the  terms  of  the  contract  the  law  placed  on  the  buyer  the 
risk  of  the  purchase,  and  relieved  the  seller  from  liability  for  latent  de- 
fects. But  this  usage  of  trade  steps  in  and  seeks  to  change  the  position 
of  the  parties,  and  to  impose  on  the  seller  a  burden  which  the  law  said, 
on  making  his  contract,  he  should  not  carry.  By  this  means  a  new 
contract  is  made  for  the  parties,  and  their  rights  and  liabilities  under 
the  law  essentially  altered.  This,  as  we  have  seen,  cannot  be  done.  If 
the  doctrine  of  caveat  emptor  can  be  changed  by  a  special  usage  of  trade, 
in  the  manner  proposed  by  the  custom  of  dealers  of  wool  in  Boston,  it 
is  easy  to  see  it  can  be  changed  in  other  particulars,  and  in  this  way  the 
whole  doctrine  frittered  away. 

It  is  proper  to  add.  in  concluding  this  opinion,  that  the  conduct  of  the 
parties  shows  clearly  that  they  did  not  know  of  this  custom,  and  could 
not,  therefore  have  dealt  with  reference  to  it. 

Judgment  reversed,  and  the  cause  remanded  with  directions  to 
award  a  Venire  de  novo. 

Bradley  and  Strong,  JJ.,  dissented. 


SECT.   II.]  KELLOGG   BRIDGE   CO.    V.    HAMILTON.  655 


KELLOGG   BRIDGE   COMPANY   v.   HAMILTON. 

United  States   Supreme  Court,  October  31,  1883 -January  14, 

1884. 

[Reported  in  110  United  States,  108.] 

The  Kellogg  Bridge  Company,  the  defendant  below,  undertook  to 
construct,  for  the  Lake  Shore  and  Southern  Michigan  Railroad  Company 

an  iron  bridge  across  Mauraee  River  at  Toledo,  Ohio.  After  doing  a  por- 
tion of  the  work  it  entered  into  a  written  contract  with  the  defendant  in 
error,  for  the  completion  of  the  bridge  under  its  directions,  containing, 
among  others,  these  stipulations  :  — 

"  That  the  said  party  of  the  first  part  [Hamilton]  herein-  agrees  to 
furnish  and  prepare  all  the  necessary  false  work  and  erect  the  iron 
bridge  now  being  constructed  by  the  said  party  of  the  second  part 
[the  Kellogg  Bridge  Company]  for  the  Lake  Shore  and  Michigan 
Southern  Railroad  Company  at  Toledo,  Ohio,  over  the  Maumee  River, 
receiving  said  bridge  material  as  it  arrives  on  the  cars  at  the  site  of 
said  bridge,  and  erecting  the  same  in  the  best  manner,  according  to  the 
design  of  said  bridge  and  the  directions  of  said  second  party  from  time 
to  time,  commencing  the  erection  of  said  work  when  required  to  do  so 
by  said  second  party,  and  proceeding  with  the  same  with  a  force  suffi- 
cient to  complete  the  entire  work  on  or  before  the  first  day  of  March 
next ;  the  said  first  party  also  agrees  to  assume  and  pay  for  all  work 
done  and  materials  furnished  up  to  the  time  of  executing  this  contract, 
including  piling  and  piles,  timber,  and  other  materials  and  labor  done 
on  the  same,  but  not  including  bolts  and  washers  which  have  been  fur- 
nished by  the  party  of  the  second  part,  but  to  return  said  bolts  and 
washers  to  the  said  second  party,  or  pay  for  the  same  on  completion  of 
said  bridge. 

"  And  the  said  first  party,  in  consideration  of  the  payments  herein- 
after mentioned  to  be  made  by  said  second  party,  agrees  to  perform  all 
the  stipulations  of  this  agreement  in  a  thorough  and  workmanlike 
manner  and  to  the  satisfaction  of  the  second  party. 

"And  if  at  any  time  the  said  second  party  is  not  satisfied  with  the 
manner  of  performing  the  work  herein  described,  or  the  rapidity  with 
which  it  is  being  done,  the  second  party  shall  have  full  power  and  lib- 
erty to  put  on  such  force  as  may  be  necessary  to  complete  the  work 
within  the  time  named,  and  provide  such  tools  or  materials  for  false 
work  as  may  be  necessary,  and  charge  the  cost  of  the  same  to  the  said 
first  party,  who  agrees  to  pay  therefor." 

In  consideration  of  the  faithful  performance  of  these  stipulations, 
Hamilton  was  to  receive  from  the  Bridge  Company  SD00  on  the  com- 
pletion of  the  first  span,  a  like  sum  on  the  completion  of  the  second 
span,  8800  on  the  completion  of  the  third  span,  and  $1}403  on  the  com- 


G5 6  KELLOGG    BRIDGE    CO.    V.    HAMILTON.  [CHAP.  V. 

pletion  of  the  draw  and  the  entire  work  ;  such  payments  to  be  made 
only  on  the  acceptance  of  each  part  of  the  work  by  the  chief  engineer  of 
the  Lake  Shore  and  Michigan  Southern  Railroad  Company. 

The  bridge  which  Hamilton  undertook  to  erect  consisted  of  three 
independent  fixed  spans,  each  to  be  one  hundred  and  seventy-five  feet 
six  inches  in  length,  suspended  between  and  resting  at  each  end  of  the 
span  upon  stone  piers,  which  had  been  prepared  to  receive  the  same, 
and  one  draw  span  of  one  hundred  and  eighty-five  feet  in  length,  rest- 
ing upon  a  pier  in  the  centre,  also  then  prepared.  In  erecting  the  sev- 
eral spans  it  was  necessary  to  build  and  use  what  the  contract  described 
as  "  false  work,"  which  consisted  of  piles  driven  in  the  river  between 
the  piers  upon  which  the  spans  were  to  rest,  and  upon  which  was  placed 
a  platform. 

As  indicated  in  the  written  contract,  the  Bridge  Company  had  pre- 
viously constructed  a  part  of  this  false  work  between  the  first  and 
second  spans,  the  cost  of  which  Hamilton  paid,  as  by  the  contract  he 
agreed  to  do.  Assuming  this  work  to  be  sufficient  for  the  purposes  for 
which  it  was  designed,  Hamilton  proceeded  to  complete  the  erection  of 
the  bridge  according  to  the  plans  furnished  him. 

There  was  evidence  before  the  jury  tending  to  establish  the  following 
facts  :  — 

A  part  of  the  false  work  or  scaffolding  put  up  by  the  company  sank 
under  the  weight  of  the  first  span,  and  was  replaced  by  Hamilton.  When 
the  second  fixed  span  was  about  two  thirds  completed,  the  ice,  which 
before  that  had  formed  in  the  river,  broke  up  in  consequence  of  a  flood, 
earning  away  the  false  work  under  that  span,  and  causing  the  whole  of 
the  iron  material  then  in  place  on  the  span,  or  on  the  span  ready  to  be 
put  in  place,  to  fall  in  the  river,  which  at  that  place  was  about  sixteen 
feet  deep.  If  the  piles  driven  by  the  Bridge  Company  had  been  driven 
more  firmly  into  the  bed  of  the  river,  they  would  have  withstood  the 
force  of  the  ice  and  flood.  In  consequence  of  the  insufficiency  of  the 
false  work  done  by  that  company,  Hamilton  was  delayed  in. the  comple- 
tion of  the  bridge  and  subjected  to  increased  expense. 

The  bridge  being  completed,  Hamilton  brought  suit  in  the  State 
court  to  recover  the  contract  price  of  the  bridge,  extra  work  claimed  to 
have  been  done  on  it,  and  damages  sustained  by  reason  of  the  insuffi- 
ciency of  the  false  work  constructed  by  the  Bridge  Company,  —  in  all 
83,693.78.  The  cause  was  removed  to  the  Circuit  Court  of  the  United 
States,  where  the  Bridge  Company  answered,  setting  up  a  counter- 
claim for  $6,019.70.  Trial  was  had  with  verdict  and  judgment  for 
plaintiff  for  63,039.89.  The  defendant  below  brought  a  writ  of  error  to 
reverse  that  judgment. 

Mr.  Richard  Waite  and  Mr.  E.  T.  Watte,  for  plaintiff  in  error. 

Mr.  John  C.  Lee,  for  defendant  in  error. 

Mr.  Justice  Haklan  delivered  the  opinion  of  the  court. 

After  reciting  the  foregoing  facts,  he  continued  :  It  is  insisted  by  the 
defendant  in  error  that  the  value  of  the  matter  really  in  dispute  here  is 


SECT.  II. j  KELLOGG   BRIDGE   CO.    V.    HAMILTON.  657 

less  than  the  amount  requisite  to  give  this  court  jurisdiction.  Upon 
this  ground  a  motion  to  dismiss  was  heretofore  made,  and  was  denied. 
To  that  ruling  we  adhere.  Upon  the  pleadings  it  is  apparent  that  the 
defendant  asserts  its  right  to  judgment  for  $6,619.70,  after  crediting 
plaintiff,  not  only  with  the  sum  specified  in  the  contract,  but  with  even- 
other  sum  to  which  he  is  entitled  in  the  accounting.  This  is  conclusive 
as  to  our  jurisdiction  upon  this  writ  of  error. 

It  was  not  claimed  on  the  trial,  nor  is  it  contended  here,  that  the 
company  made  an}'  statement  or  representation  as  to  the  nature  or 
character  of  the  false  work  it  did,  and  which,  by  the  contract,  Hamilton 
agreed  to  assume  and  pay  for.  But  there  was  evidence  tending  to 
show  that  the  insufficiency  of  that  false  work  was  unknown  to  Hamilton 
at  the  time  the  contract  was  made  ;  was  not  apparent  upon  any  exami- 
nation he  then  made,  or  could  have  made  ;  and  was  not  discovered, 
indeed,  could  not  have  been  discovered,  until,  during  the  progress  of 
the  erection  of  the  bridge,  the  false  work  was  practically  tested. 

The  court,  among  other  things,  instructed  the  jury,  at  the  request  of 
plaintiff,  and  over  the  objections  of  the  defendant,  that  by  the  contract 

—  looking  at  all  the  circumstances  attending  its  execution  and  giving  to 
its  terms  a  fair  and  reasonable  interpretation  —  there  was  an  implied 
warranty  upon  the  part  of  the  company  that  the  false  work  it  did,  and 
which  plaintiff  agreed  to  assume  and  pa}'  for,  was  suitable  and  proper 
for  the  purposes  for  which  the  Bridge  Company  knew  it  was  to  be  used- 
This  instruction  was  accompanied  by  the  observation  that  if  the  evi- 
dence showed  "  that  the  particular  work  which  was  said  to  be  defective 
was  such  that  the  plaintiff  could  not  by  examination  ascertain  its  defects 

—  for  if  they  were  apparent  by  mere  examination  of  the  false  work  it  was 
the  duty  of  the  plaintiff  to  make  that  good  —  he  had  the  right  to  rely  upon 
the  implied  warranty  ;  that  is,  if  the  defects  were  such  that  they  could 
not  be,  by  ordinary  observation  and  care  on  behalf  of  the  plaintiff, 
ascertained  and  found  out."  That  instruction  presents  the  only  ques- 
tion we  deem  it  necessary  to  determine.  Although  there  are  several 
assignments  of  error,  they  depend,  as  counsel  for  plaintiff  in  error  prop- 
erly concede,  upon  the  inquiry  whether  the  court  erred  in  ruling  that 
by  the  terms  of  the  contract  there  was  an  implied  warranty  that  the  false 
work  constructed  by  the  Bridge  Company  was  suitable  and  proper  for 
the  purposes  for  which  it  was  to  be  used  by  Hamilton. 

The  argument  in  behalf  of  plaintiff  in  error  proceeds  upon  the  ground 
that  there  was  a  simple  transfer  by  the  company  of  its  ownership  of  the 
work  and  materials  as  the}'  existed  at  the  time  of  the  contract ;  that 
Hamilton  took  the  false  work  for  what  it  was,  and  just  as  it  stood  ; 
consequently,  that  the  rule  of  caveat  emptor  applies  with  full  force. 
The  position  of  counsel  for  Hamilton  is  that,  as  in  cases  of  sales  of 
articles  by  those  manufacturing  or  making  them,  there  was  an  implied 
warranty  by  the  Bridge  Company  that  the  work  sold  or  transferred 
to  Hamilton  was  reasonably  fit  for  the  purposes  for  which  it  was 
purchased. 

42 


658  KELLOGG    BRIDGE   CO.    V.    HAMILTON.  [CHAP.  V. 

The  cases  in  which  the  general  rule  of  caveat  emptor  applies  are  indi- 
cated in  Barnard  v.  Kellogg,  10  Wall.  383,  388,  where,  speaking  by 
Mr.  Justice  Davis,  the  court  observed,  that  "  no  principle  of  the  com- 
mon law  has  been  better  established,  or  more  often  affirmed,  both  in 
this  country  and  in  England,  thai)  that  in  sales  of  personal  property,  in 
the  absence  of  express  warranty,  where  the  buyer  has  an  opportunity 
to  inspect  the  commodity,  and  the  seller  is  guilty  of  no  fraud,  and  is 
neither  the  manufacturer  nor  grower  of  the  article  he  sells,  the  maxim 
of  c treat  emptor  applies." 

An  examination  of  the  ground  upon  which  some  of  the  cases  have 
placed  the  general  rule,  as  well  as  the  reasons  against  its  application, 
under  particular  circumstances,  to  sales  of  articles  by  those  who  have 
manufactured  them,  will  aid  us  in  determining  how  far  the  doctrines  of 
those  cases  should  control  the  one  before  us. 

The  counsel  for  the  Bridge  Company  relies  upon  Parkinson  v.  Lee,  2 
East,  314,  as  illustrating  the  rule  applicable  in  ordinary  sales  of  mer- 
chandise. That  case  arose  out  of  a  sale  of  five  pockets  of  hops,  sam- 
ples of  which  were  taken  from  each  pocket  and  exhibited  at  the  time  of 
sale.  The  question  was  whether,  under  the  circumstances  of  that  case, 
—  there  being  no  express  warranty  and  no  fraud  by  the  seller,  — there 
was  an  implied  warranty  that  the  commodity  was  merchantable.  It 
was  resolved  in  the  negative,  upon  the  ground  that  it  was  the  fault  of 
the  buyer  that  he  did  not  insist  on  a  warranty  ;  the  commodity  was  one 
which  might  or  might  not  have  a  latent  defect,  a  fact  well  known  in  the 
trade  ;  and  since  a  sample  was  fairly  taken  from  the  bulk,  and  the 
buyer  must  have  known,  as  a  dealer  in  the  commodity,  that  it  was 
subject  to  the  latent  defect  afterwards  appearing,  he  was  held  to  have 
exercised  his  own  judgment  and  bought  at  his  own  risk.  But  of  that 
case,  it  was  observed  b}'  Chief  Justice  Tindal,  in  Shepherd  v.  Pybus,  3 
Man.  &  Gr.  868,  that  two  of  the  judges  participating  in  its  decision  laid 
"great  stress  upon  the  fact  that  the  seller  was  not  the  grower  of  the 
hops,  and  that  the  purchaser,  by  the  inspection  of  the  hops,  had  as  full 
an  opportunity  of  judgment  of  the  quality  of  the  hops  as  the  seller  him- 
self." There  was,  consequently,  nothing  in  the  circumstances  to  justify 
the  buyer  in  relying  on  the  judgment  of  the  seller  as  to  the  quality  of 
the  commodity.  It  is  also  worthy  of  remark,  that  in  Randall  v.  New- 
son,  2  Q.  B.  102,  it  was  said  of  Parkinson  v.  Lee,  that  "  cither  it  does 
not  determine  the  extent  of  the  seller's  liabilit}r  on  the  contract,  or  it 
has  been  overruled." 

In  Brown  v.  Edgington,  2  Man.  &  Gr.  279,  the  plaintiff  sought  to 
recover  damages  resulting  from  the  insufficiency  of  a  rope  furnished  by 
the  defendant  upon  plaintiff's  order,  to  be  used,  as  defendant  knew. 
in  raising  pipes  of  wine  from  a  cellar.  The  defendant  did  not  himself 
manufacture  the  rope,  but  procured  another  to  do  so,  in  order  that  he, 
defendant,  might  furnish  it  in  compliance  with  the  plaintiff's  request. 
Tindal,  C.  J.,  said  :  "  It  appears  to  me  to  be  a  distinction  well  founded, 
both  in  reason  and  on  authority,   that  if  a  party  purchases  an  article 


SECT.  II.]  KELLOGG   BRIDGE    CO.    V.   HAMILTON.  659 

upon  his  own  judgment,  he  cannot  afterwards  hold  the  vendor  respon- 
sible on  the  ground  that  the  article  turns  out  to  be  unfit  for  the  purpose 
for  which  it  was  required;  but  if  he  relies  upon  the  judgment  of  the 
seller,  and  informs  him  of  the  use  to  which  the  article  is  to  be  applied, 
it  seems  to  me  the  transaction  carries  with  it  an  implied  warranty  that 
the  thing  furnished  shall  be  fit  and  proper  for  the  purpose  for  which  it 
was  designed." 

In  Shepherd  v.  Pybus,  already  referred  to,  the  question  was  whether, 
upon  the  sale  of  a  barge  by  the  builder,  there  was  a  warranty  of  fitness 
for  the  purpose  for  which  it  was  known  by  the  builder  to  have  been 
purchased.  It  was  held  that  the  law  implied  such  a  warranty.  The 
ground  of  the  decision  was  that  the  purchaser  had  no  opportunity  of 
inspecting  the  barge  during  its  construction,  having  seen  it  onl\-  after 
completion  ;  that  the  defects  afterwards  discovered  were  not  apparent 
upon  inspection,  and  could  only  be  detected  upon  trial. 

In  Jones  v.  Just,  L.  R.  3  Q.  B.  197,  upon  an  extended  review  of  the 
authorities,  the  court  classified  the  adjudged  cases  bearing  upon  the 
subject  of  implied  warranty,  and  said  that  "  it  must  be  taken  as  estab- 
lished that  on  the  sale  of  goods  by  a  manufacturer  or  dealer,  to  be 
applied  to  a  particular  purpose,  it  is  a  term  in  the  contract  that  they 
shall  teasonably  answer  that  purpose,  and  that  on  the  sale  of  an  article 
by  a  manufacturer  to  a  vendee  who  has  not  had  the  opportunity  of  in- 
specting it  during  the  manufacture,  that  it  shall  be  reasonably  fit  for 
use  or  shall  be  merchantable,  as  the  case  may  be." 

Other  cases  might  be  cited,  but  these  are  sufficient  to  show  the 
general  current  of  decision  in  the  English  courts. 

The  decisions  in  the  American  courts  do  not  indicate  any  substan- 
tial difference  of  doctrine.  A  leading  case  upon  the  subject,  where  the 
authorities  were  carefully  examined  and  distinguished,  is  Hoe  v.  San- 
born, 21  N.  Y.  552.  The  decision  there  was  that  "  where  one  sells  an 
article  of  his  own  manufacture  which  has  a  defect  produced  by  the 
manufacturing  process  itself,  the  seller  must  be  presumed  to  have  had 
knowledge  of  such  defect,  and  must  be  holden,  therefore,  upon  the 
most  obvious  principles  of  equity  and  justice  —  unless  he  informs  the 
purchaser  of  the  defect  —  to  indemnify  him  against  it." 

In  Cunningham  v.  Hall,  4  Allen,  268,  the  cases  of  Hoe  v.  Sanborn, 
and  Shepherd  v.  Pybus,  and  Brown  v.  Edgington,  supra,  are  cited 
with  approval.  In  Rodgers  v.  Niles,  11  Ohio  St.  48,  53,  the  Supreme 
Court  of  Ohio  recognizes  among  the  exceptions  to  the  general  rule, 
cases  t;  where  it  is  evident  that  the  purchaser  did  not  rely  on  his  own 
judgment  of  the  quality  of  the  article  purchased,  the  circumstances 
showing  that  no  examination  was  possible  on  his  part,  or  the  contract 
being  such  as  to  show  that  the  obligation  and  responsibility  of  ascer- 
taining and  judging  of  the  quality  was  thrown  upon  the  vendor,  as 
where  he  agrees  to  furnish  an  article  for  a  particular  purpose  or  use.'" 

So  in  Leopold  v.  Yankirk.  27  Wis.  152  :  "  The  general  rule  of  law  with 
respect  to  implied  warranties  is  well  settled  that  when  the  manufacture* 


G60  KELLOGG    BRIDGE    CO.    V.    HAMILTON.  [CHAP.  V. 

of  an  article  sells  it  for  a  particular  purpose,  the  purchaser  making  known 
to  him  at  the  time  the  purpose  for  which  he  buys  it,  the  seller  thereby 
warrants  it  fit  and  proper  for  such  purpose  and  free  from  latent  defects." 

So  also  in  Brenton  v.  Davis,  8  Blackf.  317,  318:  "  We  consider  the 
law  to  be  settled  that  if  a  manufacturer  of  an  article  sells  it  at  a  fair 
market  price,  knowing  the  purchaser  designs  to  apply  it  to  a  particular 
purpose,  he  impliedly  wan-ants  it  to  be  fit  for  that  purpose  ;  and  that  if, 
owing  to  some  defect  in  the  article  not  visible  to  the  purchaser,  it  is 
unfit  for  the  purpose  for  which  it  is  sold  and  bought,  the  seller  is  liable 
on  his  implied  warranty." 

2  Story  on  Contracts,  §  1077,  5th  ed.,  by  Bigelow  ;  1  Chitty  on  Con- 
tracts, 11th  American  ed.,  631,  632,  note  m  ;  Addison  on  Contracts, 
ch.  7,  §  1,  p.  212. 

The  authorities  to  which  we  have  referred,  although  differing  in  the 
form  of  stating  the  qualifications  and  limitations  of  the  general  rule,  yet 
indicate  with  reasonable  certainty  the  substantial  grounds  upon  which 
the  doctrine  of  implied  warranty  has  been  made  to  rest.  According  to 
the  principles  of  decided  cases,  and  upon  clear  grounds  of  justice,  the 
fundamental  inquiry  must  always  be  whether,  under  the  circumstances 
of  the  particular  case,  the  buyer  had  the  right  to  rely  and  necessarily 
relied  on  the  judgment  of  the  seller,  and  not  upon  his  own.  In  ordinary 
sales  the  buyer  has  an  opportunity  of  inspecting  the  article  sold  ;  and 
the  seller  not  being  the  maker,  and  therefore  having  no  special  or 
technical  knowledge  of  the  mode  in  which  it  was  made,  the  parties 
stand  upon  grounds  of  substantial  equality.  If  there  be,  in  fact,  in  the 
particular  case  any  inequality,  it  is  such  that  the  law  cannot  or  ought 
not  to  attempt  to  provide  against ;  consequently,  the  bu}'er  in  such  cases 
—  the  seller  giving  no  express  warranty  and  making  no  representations 
tending  to  mislead  —  is  holden  to  have  purchased  entirety  on  his  own 
judgment.  But  when  the  seller  is  the  maker  or  manufacturer  of  the 
thing  sold,  the  fair  presumption  is  that  he  understood  the  process  of 
its  manufacture,  and  was  cognizant  of  any  latent  defect  caused  by  such 
process,  and  against  which  reasonable  diligence  might  have  guarded. 
This  presumption  is  justified,  in  part,  by  the  fact  that  the  manufacturer 
or  maker  by  his  occupation  holds  himself  out  as  competent  to  make 
articles  reasonably  adapted  to  the  purposes  for  which  such  or  similar 
articles  are  designed.  When,  therefore,  the  buyer  has  no  opportunity 
to  inspect  the  article,  or  when,  from  the  situation,  inspection  is  imprac- 
ticable or  useless,  it  is  unreasonable  to  suppose  that  he  bought  on  his 
own  judgment,  or  that  he  did  not  reby  on  the  judgment  of  the  seller  as 
to  latent  defects  of  which  the  latter,  if  he  used  due  can1,  must  have 
been  informed  during  the  process  of  manufacture.  If  the  buyer  relied, 
and  under  the  circumstances  had  reason  to  rely,  on  the  judgment  of  the 
seller,  who  was  the  manufacturer  or  maker  of  the  article,  the  law  im- 
plies a  warranty  that  it  is  reasonably  fit  for  the  use  for  which  it  was 
designed,  the  seller  at  the  time  being  informed  of  the  purpose  to  devote 
it  to  that  use. 


SECT.  II.]  KELLOGG   BRIDGE   CO.    V.    HAMILTON.  6G1 

Whether  these  principles  control,  or  to  what  extent  they  are  applica- 
ble;, in  the  present  case,  we  proceed  to  inquire. 

Although  the  plaintiff  in  error  is  not  a  manufacturer  in  the  common 
acceptation  of  that  word,  it  made  or  constructed  the  false  work  which 
it  sold  to  Hamilton.  The  transaction,  if  not  technically  a  sale,  created 
between  the  parties  the  relation  of  vendor  and  vendee.  The  business 
of  the  company  was  the  construction  of  bridges.  By  its  occupation, 
apart  from  its  contract  with  the  railroad  company,  it  held  itself  out  as 
reasonably  competent  to  do  work  of  that  character.  Having  partially 
executed  its  contract  with  the  railroad  company,  it  made  an  arrange- 
ment with  Hamilton,  whereby  the  latter  undertook,  among  other  things, 
to  prepare  all  necessary  false  work,  and,  by  a  day  named,  and  in  the 
best  manner,  to  erect  the  bridge  then  being  constructed  by  the  Bridge 
Company,  —  Hamilton  to  assume  and  pay  for  such  work  and  materials 
as  that  company  had  up  to  that  time  done  and  furnished.  Manifestly, 
it  was  contemplated  by  the  parties  that  Hamilton  should  commence 
where  the  company  left  off.  It  certainly  was  not  expected  that  he 
should  incur  the  expense  of  removing  the  false  work  put  up  by  the  com- 
pany and  commence  anew.  On  the  contrary,  he  agreed  to  assume  and 
pa}'  for,  and  therefore  it  was  expected  by  the  company  that  he  should 
use,  such  false  work  as  it  had  previously  prepared.  It  is  unreasonable 
to  suppose  that  he  would  buy  that  which  he  did  not  intend  to  use,  or 
that  the  company  would  require  him  to  assume  and  pay  for  that  which 
it  did  not  expect  him  to  use,  or  which  was  unfit  for  use.  It  is  sug- 
gested that,  as  Hamilton  undertook  to  erect  the  bridge  in  a  thorough 
and  workmanlike  manner,  he  was  not  bound  to  use  the  false  wrork  put 
up  by  the  company,  and  that  if  he  used  it  in  execution  of  his  contract, 
he  did  so  at  his  own  risk.  This  is  only  one  mode  of  saying  that,  in  the 
absence  of  an  express  warranty  or  fraud  upon  the  part  of  the  company, 
the  law  will  not,  under  any  circumstances,  imply  a  warranty  as  to  the 
quality  or  sufficiency  of  this  false  work.  But  the  answer  to  this  argu- 
ment is  that  no  question  was  raised  as  to  its  sufficiency  :  that,  while 
Hamilton  must  be  charged  with  knowledge  of  all  delects  apparent  or 
discernible  upon  inspection,  he  could  not  justly  be  charged  with  knowl- 
edge of  latent  defects  which  no  inspection  or  examination,  at  or  before 
the  sale,  could  possibly  have  disclosed.  The  jury  have,  in  effect,  found 
the  false  work  to  have  been  insufficient,  in  that  the  piles  were  not 
driven  deep  enough  ;  that  had  the}'  been  properly  driven,  the  work 
would  have  answered  the  purposes  for  which  Hamilton  purchased  it  ; 
and  that  he  could  not  have  ascertained  such  defects  in  advance  of  an 
actual  test  made  during  the  erection  of  the  bridge.  It  must  be  assumed 
that  the  company  knew,  at  the  time  of  sale,  that  Hamilton  could  not.  by 
inspection,  have  discovered  the  latent  defects  which  were  subsequently 
disclosed.  And  if  it  be  also  assumed,  as  it  fairly  may  be,  that  Hamil- 
ton, being  himself  a  bridge  builder,  knew  that  there  might  be  latent 
defects  in  this  false  work",  caused  by  the  mode  of  its  construction,  and 
beyond  his  power  by  mere  inspection  to  ascertain,  it  must  not  be  over- 


662  MURCHIE   V.    CORNELL.  [CHAP.  V. 

looked  that  he  also  knew  that  the  company,  by  its  agents  or  servants, 
were  or  should  have  been  informed  as  to  the  mode  in  which  the  work 
had  been  done.  That  he  did  not  exact  au  express  warranty  against 
latent  defects  not  discoverable  by  inspection,  constitutes,  under  the  cir- 
cumstances, no  reason  why  a  warranty  may  not  be  implied  against  such 
defects  as  were  caused  by  the  mode  in  which  this  false  work  was  con- 
structed. In  the  cases  of  sales  by  manufacturers  of  their  own  articles 
for  particular  purposes,  communicated  to  them  at  the  time,  the  argu- 
ment was  uniformly  pressed  that,  as  the  buyer  could  have  required  an 
express  warranty,  none  should  be  implied.  But,  plainly,  such  an 
argument  impeaches  the  whole  doctrine  of  implied  warranty,  for  there 
can  be  no  case  of  a  sale  of  personal  property  in  which  the  buyer  may 
not,  if  he  chooses,  insist  on  an  express  warranty  against  latent  defects. 

All  the  facts  are  present  which,  upon  any  view  of  the  adjudged  cases, 
must  be  held  essential  in  an  implied  warranty.  The  transaction  was, 
in  effect,  a  sale  of  this  false  work,  constructed  by  a  company  whose 
business  it  was  to  do  such  work,  to  be  used  in  the  same  way  the  maker 
iutended  to  use  it,  and  the  latent  defects  in  which,  as  the  maker  knew, 
the  buyer  could  not,  by  an}'  inspection  or  examination  at  the  time,  dis- 
cover ;  the  buyer  did  not,  because  in  the  nature  of  things  he  could  not, 
rely  on  his  own  judgment ;  and,  in  view  of  the  circumstances  of  the 
case,  and  the  relations  of  the  parties,  he  must  be  deemed  to  have  relied 
on  the  judgment  of  the  company,  which  alone  of  the  parties  to  the  con- 
tract had  or  could  have  knowledge  of  the  manner  in  which  the  work 
had  been  done.  The  law,  therefore,  implies  a  warranty  that  this  false 
work  was  reasonably  suitable  for  such  use  as  was  contemplated  by  both 
parties.  It  was  constructed  for  a  particular  purpose,  and  was  sold  to 
accomplish  that  purpose  ;  and  it  is  intrinsically  just  that  the  company, 
which  held  itself  out  as  possessing  the  requisite  skill  to  do  work  of  that 
kind,  and  therefore  as  having  special  knowledge  of  its  own  workman- 
ship, should  be  held  to  indemnify  its  vendee  against  latent  defects, 
arising  from  the  mode  of  construction,  and  which  the  latter,  as  the 
company  well  knew,  could  not,  by  any  inspection,  discover  for  himself. 

For  the  reasons  stated,  we  are  of  opinion  that  the  court  did  not  err 
in  the  law  of  the  case,  and  the  judgment  must  be  Affirmed. 


MURCHIE  v.  CORMELL. 

Supreme  Judicial  Court  of  Massachusetts,  October  28  — 
Novemmer  25,  181)1. 
[Reported  in  155  Mass.  60.] 

Contract,  for  a  cargo  of  ice  sold  by  the  plaintiffs  to  the  defendants. 
At  the  trial  in  the  Superior  Court,  before  Dunbar,  J.,  there  was  evi- 
dence that  Pardon  Cornell,  as  representing  a  firm  composed  of   the 


SECT.  II.]  MUKCHIE   V.    CORNELL.  €63 

other  defendant  and  himself  which  dealt  in  ice,  went  to  Calais,  Maine, 
and  had  several  conversations  with  William  A.  Murchie,  one  of  the 
plaintiffs,  who  formed  a  firm  also  dealing  in  ice,  in  relation  to  the  pur- 
chase of  a  cargo  of  ice. 

The  plaintiffs'  evidence  tended  to  show  that  the  ice  which  the  plain- 
tiffs were  proposing  to  sell  to  the  defendants  was  in  Pembroke,  a  town 
upon  the  coast  of  Maine,  about  eighteen  miles  distant  from  Calais, 
with  which  the  only  communication  was  by  stage-coach  ;  that  Murchie 
suggested  to  Cornell  that  he  should  go  to  Pembroke  and  see  the  ice  ; 
that  at  the  time  of  the  first  conversation  between  them  in  regard  to  ice 
the  plaintiffs  did  not  own  the  ice,  but  proposed  to  buy  it  and  ship  it  to 
the  defendants,  but  before  the  negotiations  were  completed  they  had 
purchased  the  ice  ;  that  there  was  no  express  warranty  of  the  ice  ;  and 
that  the  ice  on  its  arrival  was  sound  and  merchantable. 

The  defendants'  evidence  tended  to  show  that  Murchie  proposed  to 
Cornell  to  sell  him  a  cargo  of  ice  to  be  shipped  from  Pembroke  ;  that 
the  negotiations  were  not  completed  at  Calais,  and  Cornell  left  there 
for  Bangor  and  New  Bedford  ;  that  the  contract  for  the  purchase  of 
the  ice  was  completed  by  telegrams  which  passed  between  Calais  and 
Bangor,  and  finally  between  Calais  and  New  Bedford ;  that  by  the 
terms  of  the  contract  the  plaintiffs  were  to  ship  a  cargo  of  ice,  of  three 
hundred  and  sixty  tons,  from  Pembroke,  Maine,  by  vessel  to  New 
Bedford,  at  a  certain  price  per  ton ;  and  that  the  ice  on  its  arrival  was 
unsound  and  unmerchantable. 

The  plaintiffs  introduced  evidence  tending  to  show  that  the  first 
complaint  they  had  from  the  defendants  as  to  the  quality  or  condition 
of  the  ice,  was  a  telegram  from  Cornell :  "  Schooner  arrived,  —  short- 
age needs  adjusting,  — come  at  once  ;  "  and  that  the  defendants  never 
notified  them  of  any  fault  with  the  ice  excepting  as  to  the  quantity 
until  after  the  bringing  of  this  action,  and  no  complaint  was  made  by 
the  defendants  to  them  as  to  the  quality  or  condition  of  the  ice.  The 
defendants,  having  introduced  evidence  tending  to  show  that  Cornell 
went  to  the  office  of  a  notary  public  the  day  the  discharging  of  the  ice 
was  completed,  and  there  signed  and  made  oath  to  a  statement  in 
writing,  which  was  duly  recorded  by  the  notary  in  his  book  of  pro- 
tests, thereupon  offered  this  written  statement  for  the  purpose  of  re- 
butting any  claim  on  the  part  of  the  plaintiffs  that  the  defendants  had 
no  fault  to  find  with  the  quality  and  condition  of  the  ice  prior  to  the 
bringing  of  the  action,  and  of  rebutting  any  argument  which  might  be 
made  therefrom  that  there  was  no  fault  to  be  found  with  the  quality  or 
the  condition  of  the  ice,  and  not  as  evidence  of  the  contents  of  such 
written  instrument.  The  judge  excluded  the  evidence  offered,  and  the 
defendants  excepted. 

The  defendants  asked  the  judge  to  rule  as  follows  ;  "  In  a  contract 
for  the  sale  of  ice  at  wholesale  by  a  dealer  in  the  article  to  one  to  lie 
sold  again,  where  there  is  no  opportunity  for  inspection  of  the  ice,  and 
no  express  warranty  is  made,  there  is  an  implied  warranty  that  the 
ice  sold  is  merchantable  and  salable  as  ice  for  ordinary  retail  use." 


664  MURCHIE   V.   CORNELL.  [CHAP.  V. 

The  judge  declined  to  give  the  ruling  asked  for,  but  instructed  the 
jury  in  relation  thereto  as  follows  :  "  There  is  no  implied  warranty  of 
the  quality  of  goods,  —  by  implied  warranty  I  mean  a  warranty 
which  arises  out  of  the  sale  itself,  nothing  being  said  as  to  quality,  — 
unless  the  kind  or  species  of  article  is  such  that  an  affirmation  is  neces- 
sarily implied  in  the  making  of  the  sale  of  that  article,  that  it  is  of  a 
particular  quality.  In  ordinary  sales,  in  the  sales  of  ordinary  articles, 
such  an  implied  warranty  does  not  arise  ;  and  speaking  strictly  of 
quality  in  this  case,  there  is  no  implied  warranty.  What  is  quality 
aud  what  is  condition  in  the  case  of  ice  is  a  matter  perhaps  very  diffi- 
cult to  determine,  when  there  is  no  question  of  the  purity  of  the  water 
contained  in  the  ice.  If  we  had  here  before  us  a  question  of  the  purity 
of  the  water  of  which  the  ice  had  been  frozen,  you  might  say  without 
any  qualification  it  was  a  question  of  quality.  Here  the  quality  relied 
upon  depends  largely  upon  the  condition  of  the  ice.  As  it  is  a  matter  of 
common  knowledge  that  ice  is  cut  in  cakes,  and  that  it  is  sold  and 
handled  and  delivered  in  cakes,  at  wholesale  at  least,  and  as  by  this 
contract  all  parties  contemplated  the  ice  was  to  be  shipped  on  board  a 
schooner  and  sent  by  sea  to  New  Bedford,  there  to  be  discharged 
and  stacked  or  housed,  there  must  be  an  implied  affirmation  that  the 
ice  was  of  such  a  kind  that  it  could  be  so  shipped,  transported,  and 
discharged  ;  that  is  as  far  as  there  can  be  an  implied  warranty  in  this 
case,  if  that  can  be  said  to  be  an  implied  warranty." 

The  jury  returned  a  verdict  for  the  plaintiffs  ;  and  the  defendants 
alleged  exceptions. 

//.  M.  Knowlton,  for  the  defendants. 

W.  Clifford,  for  the  plaintiffs. 

Holmes,  J.  1.  The  plaintiffs  agreed  to  sell,  and  the  defendants 
agreed  to  buy,  a  cargo  of  ice  of  three  hundred  and  sixty  tons,  to  be 
shipped  from  Pembroke,  Maine.  From  some  of  the  evidence  it  would 
serin  that  the  ice  was  not  identified  by  the  contract,  but  was  to  lie  sup- 
plied ami  appropriated  to  the  contract  by  the  plaintiffs,  the  sellers.  From 
other  parts  of  the  testimony  it  might  be  inferred  that  the  ice  was  iden- 
tified by  the  contract,  but  at  a  time  and  under  circumstances  when  the 
defendants  had  no  opportunity  to  inspect  it  before  shipment.  The 
judge  instructed  the  jury  generally  that  there  was  an  implied  affirma- 
tion that  the  ice  was  of  such  a  kind  that  it  could  be  shipped,  trans- 
ported by  sea,  and  discharged  at  New  Bedford,  as  contemplated  by  the 
contract,  and  no  other  implied  allirmation  or  warranty.  If  the  instruc- 
tion is  wrong  in  either  view  which  the  jury  might  have  taken  of  the 
facts,  the  exceptions  must  be  sustained,  and  it  is  unnecessary  to  con- 
sider whether  the  implication  would  be  more  extensive  in  the  former 
i  iian  in  the  latter. 

In  some  contracts  of  the  latter  kind,  when  the  sale  is  of  specific 
goods,  hut  tin-  buyer  has  no  chance  to  inspect  them,  the  name  given  to 
the  goods  in  the  contract,  taken  in  its  commercial  sense,  may  describe 
all  that  the  purchaser  is  entitled  to  demand.     Ho  it  was  held  with  re- 


SECT.  II.]  DOUNCE   V.    DOW   ET   AL.  665 

gard  to  "  Manila  sugar,"  in  Gossler  v.  Eagle  Sugar  Refinery,  103 
Mass.  331. 

But  in  many  cases  like  the  present,  the  inference  is  warranted  that 
the  thing  to  be  furnished  must  be  not  only  a  thing  of  the  name  men- 
tioned in  the  contract,  but  something  more.  How  much  more  may 
depend  upon  circumstances,  and  at  times  the  whole  question  may  be 
for  the  jury.  If  a  very  vague  generic  word  is  used,  like  "  ice,"  which 
taken  literally  may  be  satisfied  by  a  worthless  article,  and  the  contract 
is  a  commercial  contract,  the  court  properly  may  instruct  the  jury  that 
the  word  means  more  than  its  bare  definition  in  the  dictionary,  and 
calls  for  a  merchantable  article  of  that  name.  If  that  is  not  furnished 
the  contract  is  not  performed.  Warner  v.  Arctic  Ice  Co.,  71  .Maine, 
475;  Swett  v.  Shumway,  102  Mass.  365,  369;  Whitmore  ^•.  South 
Boston  Iron  Co.,  2  Allen.  52,  58. 

In  a  sale  of  "  Manilla  hemp,"  like  that  of  the  sugar  in  dossier  v. 
Eagle  Sugar  Refinery,  it  was  held  in  England  that  the  hemp  must  he 
merchantable.  Jones  y.  Just,  L.  R.  3  <,>.  15.  197;  Gardiner  v.  Cray, 
4  Camp.  144;  Howard  v.  Hoey,  23  Wend.  350,  351  ;  Merriam  v. 
Eield,  39  Wis.  578  ;  Fish  u.  Roseberry,  22  111.  288,  299  ;  Babcock  y. 
Trice,  18  111.  420.  See  Hight  v.  Bacon,  12G  Mass.  10,  12;  Hastings 
v.  Loveriug,  2  Pick.  214,  220. 

2.  The  plaintiffs  put  in  evidence  tending  to  show  that  the  defend- 
ants never  notified  them  of  any  defect  in  the  quality  or  condition  of 
the  ice  until  after  this  suit.  To  meet  this  the  defendants  offered  a 
protest  signed  and  sworn  to  by  one  of  them  on  the  day  the  ice  arrived. 
This  protest  was  no  evidence  that  the  statements  contained  in  it  were 
true,  or  that  the  defendants'  story  was  not  false.  So  far  as  the  plain- 
tiffs' evidence  was  introduced  for  the  purpose  of  showing  such  an 
acceptance  of  the  ice  as  to  bar  the  defendants  from  alleging  that  it  did 
not  satisfy  the  contract  (Morse  v.  Moore,  83  Maine,  473,  and  Gay- 
lord  Manuf.  Co.  v.  Allen,  53  N.  Y.  515,  519),  the  protest  of  course  had 
no  bearing.  And  although  it  did  show  that  the  defendant's  story  was 
not  an  afterthought,  it  was  properly  excluded,  the  plaintiffs,  so  far  as 
appears,  not  having  taken  that  specific  point.  Wallace  v.  Story,  139 
Mass.  115.  Exceptions  sustained. 


WILLIAM  J.   DOUNCE  v.   BENJAMIN  F.    DOW  et  Al. 
New  York  Court  of  Appeals,  February   18 — March  21,  1876. 

[Reported  in  64  New  York,  411  ] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department  in  favor  of  plaintiff,  entered  upon  an 
order  denying  motion  for  a  new  trial  and  directing  judgment  upon  a 
verdict.     (Reported  below,  6  T.  &  C.  653.) 

This  action  was  upon  a  promissory  note  made  by  defendants,  to  the 


6G6  DOUNCE   V.    DOW   ET   AL.  [CHAP.  V. 

order  of  the  plaintiff,  payable  at  four  months  at  the  Genesee  Valley 
National  Bank. 

The  defence  was  that  the  note  was  given  for  ten  tons  of  "  XX  pipe 
iron,"  which  defendants  bought  of  plaintiff,  to  be  used  in  making  cast- 
ings for  agricultural  implements,  in  the  manufacture  of  which  defendants 
were  engaged  at  Fowlerville,  in  this  State.  The  iron  was  shipped  to, 
anil  received  by  the  defendants,  and,  without  making  any  test  or  exam- 
ination of  it,  it  was  mixed  with  other  varieties  of  pig-iron  and  con- 
verted into  such  castings.  The  iron  so  purchased  of  plaintiff  was  so 
rotten  and  worthless  that  the  castings  made  from  it  were  valueless, 
and  the  defendants  were  put  to  great  expense  in  the  effort  to  use  said 
iron,  and  to  great  loss  in  utter  worthlessness  of  the  machinery  made 
therefrom.  This  loss  and  expense  they  set  up  as  a  counter-claim  to 
the  note. 

It  appeared  upon  the  trial  that  the  plaintiff  was  a  dealer  in  pig 
metals,  at  Elmira,  and  the  defendants  were,  and  had  for  a  number  of 
years  been,  manufacturers  of  castings  for  agricultural  implements  at 
Fowlerville.  Prior  to  the  27th  of  January,  1869,  several  letters  had 
passed  between  the  parties  as  to  pig-iron  of  various  sorts,  in  one  of 
which  letters  defendants  ask  plaintiff  the  price  for  "  XX  pipe  iron." 
On  the  twenty-eighth  of  January  plaintiff  wrote  to  defendants  a  letter, 
in  which  he  acknowledged  the  receipt  of  a  letter  from  them,  and  told 
them  he  could  supply  them  XX  pipe  through  the  season,  but  would  not 
fix  any  certain  price  for  the  same.  He  said  he  could  sell  XX  pipe 
then  at  fort3--two  dollars  and  fifty  cents,  and  would  sell  all  the  season 
that  brand  at  the  lowest  figure  he  could.  He  also  gave  the  time  and 
manner  in  which  he  required  payment.  On  the  twenty  ninth  of  Jan- 
uary defendants  wrote  to  the  plaintiff  to  enter  their  order  for  ten  tons 
of  XX  pipe  iron,  and  send  to  them  at  Caledonia  as  soon  as  received. 
On  the  12th  of  February,  1869,  plaintiff  shipped  to  defendants,  as 
directed,  ten  tons  branded  and  billed  as  XX  pipe,  addressed  to  them 
at  Fowlerville.  On  or  about  the  fifteenth  of  February,  and  before  the 
iron  was  received,  defendants  sent  to  plaintiff  their  note  for  the  amount 
of  the  bill.  It  did  not  conform  entirely  to  the  terms  of  sale,  and  plain- 
tiff returned  it  to  defendants,  who  corrected  the  error  and  returned  the 
same  to  plaintiff.  A  few  days  thereafter  the  iron  was  received  by 
defendants.  AVhen  they  came  to  use  the  castings  made,  they  were 
found  to  be  brittle  and  worthless,  and,  on  examination,  the  XX  pipe 
iron  was  found  to  be  brittle,  rotten,  and  worthless. 

Five  tons  of  the  XX  iron  were  used  before  its  worthlessness  was 
discovered,  and  then  defendants  wrote  to  plaintiff  complaining  of  the 
injury  done  to  them  by  reason  of  the  bad  quality  of  the  iron  sold 
to  them,  refusing  to  use  an}'  more  of  it  and  offering  to  return  what 
remained  unused.  The  iron  in  question  was  manufactured  at  a  furnace 
in  Pennsylvania,  and  purchased  by  plaintiff  to  be  sold  by  him.  lie  had 
none  on  hand  when  he  received  defendants'  order,  but  ordered  it  from 
the  manufactory,  received  and  shipped  it  as  "  XX  pipe  iron."     The 


SECT.  II.]  BOUNCE   V.    DOW    ET   AL.  667 

quality  of  pig  iron  cannot  be  ascertained  by  merely  examining  it 
externally.  There  are  two  tests  by  which  to  determine  the  qualitv. 
One  is  melting  it;  the  other,  breaking  the  pig  so  that  the  internal 
surface  may  be  examined,  and  from  the  appearance  of  that  surface  a 
person  acquainted  with  pig-iron  could  determine  its  quality  quite  accu- 
rately without  using  it.  The  iron  sent  to  defendants  was  not  broken 
and  examined,  and  the  effect  of  it  upon  the  castings  was  not  ascertained 
for  several  weeks,  as  defendants  cast  a  large  quantity  before  they  pre- 
pared them  for  use. 

There  was  some  conflict  in  the  evidence  as  to  whether  the  iron  was, 
in  fact,  "XX  pipe." 

Counsel  for  the  defendants  asked  permission  to  go  to  the  jury  upon 
the  questions  of  the  market  value  of  the  iron  in  question ;  as  to  whether 
the  iron  was  worth  anything  for  the  purposes  of  the  defendants'  busi- 
ness, and  as  to  whether  there  was  not  a  warranty  on  the  part  of  the 
plaintiff,  express  or  implied,  that  the  iron  shipped  upon  the  order  of 
defendants  was  fit  and  suitable  for  use  in  the  manufacturing  business 
of  the  defendants.  The  court  declined  to  grant  the  requests  ;  to  which 
ruling  and  decision  counsel  for  the  defendants  duly  excepted. 

The  court  directed  a  verdict  for  plaintiff  for  the  amount  of  the  note. 
Exceptions  were  ordered  to  be  heard  at  first  instance  at  General  Term. 

J.  B.  Adams,  for  the  appellants. 

J.  11.   Ward,  for  the  respondent. 

Church,  C.  J.  The  article  ordered  was  "XX  pipe  iron,"  and  the 
same  was  forwarded  and  billed  as  such.  This  was  a  warranty  of  the 
character  of  the  article  within  the  decision  in  Hawkins  v.  Pemberton, 
51  N.  Y.  198,  which  modified,  to  some  extent,  the  earlier  decisions  of 
Seixas  v.  Woods,  2  Caines,  48,  and  Swett  v.  Colgate,  20  J.  R.  196. 
The  words  "pipe  iron"  referred  to  the  furnace  where  manufactured, 
and  "  XX"  to  the  brand  indicating  the  quality.  The  plaintiff  was  not 
a  manufacturer,  but  a  dealer  in  "  pig  metals,"  and  was  not  presumed 
to  know  the  precise  quality  of  every  lot  of  pigs  bought  and  sold  by  him. 
bearing  that  brand,  and  hence  cannot  be  held  to  have  warranted  that 
the  pigs  in  question  were  of  any  certain  quality.  Hoe  v.  Sanborn,  21 
N.  Y.  552.  There  was  no  fraud.  Both  parties  supposed,  doubtless, 
that  the  iron  was  first  quality  for  the  purpose  for  which  it  was  intended. 
But  it  is  not  enough  that  the  plaintiff  knew  such  purpose.  34  X.  Y. 
118  The  defendant  should  have  exacted  a  specific  warranty,  and  then 
both  parties  would  have  acted  understanding^.  If  the  defendants  had 
ordered  XX  pipe  iron,  which  was  tough  and  soft,  and  fit  for  manufac- 
turing agricultural  implements,  and  the  plaintiff  had  agreed  to  deliver 
iron  of  that  quality,  a  warranty  would  have  been  established,  which, 
probably,  within  the  case  of  Day  v.  Pool.  52  N.  Y.  416,  would  have 
survived  the  acceptance  of  the  article.  Here  both  parties  acted  in  good 
faith.  The  defendants  ordered  simpby  XX  pipe  iron,  supposing  that 
such  iron  was  always  tough  and  soft.  The  plaintiff  forwarded  the  iron 
under  the  same  impression.     The   iron   proved   to  be   brittle   and  hard. 


G68  DOUNCE   V.    DOW   ET   AL.  [CHAP.  V. 

and  the  question  is,  which  party  is  to  bear  the  loss?  The  plaintiff 
(in  the  absence  of  fraud)  was  only  bound  by  his  contract,  which  was 
to  deliver  XX  pipe  iron,  and  we  are  now  assuming  that  such  iron  was 
delivered.  If  so,  he  was  relieved  from  liability.  The  only  other  liabil- 
ity which  can  be  claimed  that  he  incurred  was  of  an  implied  warranty 
that  the  iron  was  merchantable,  and  this  could  not  be  affirmed  unless 
the  contract  was  executory.  2  Kent's  Com.  (11th  ed.),  note  c,  p.  G34. 
Without  inquiring  whether  such  a  warranty  would  be  implied  under 
the  circumstances  of  this  case,  or  if  it  would,  what  in  this  case  the  term 
"  merchantable  "  would  import,  it  is  sufficient  to  say  that  the  defend- 
ants, by  using  a  large  portion  of  the  iron  after  an  opportunity  to 
examine  and  ascertain  whether  it  was  merchantable,  must  be  deemed 
to  have  accepted  it,  and  to  have  waived  the  alleged  implied  warranty 
within  the  general  rule  which,  to  this  extent,  is  not  impaired  by  Day  v. 
Pool,  supra. 

The  only  serious  question  in  the  case  is,  whether  the  court  erred  in 
directing  a  verdict.  There  was,  as  we  have  seen,  an  express  warranty 
that  the  iron  was  XX  pipe  iron,  and  there  was  some  evidence,  although 
slight,  that  it  was  not.  It  is  claimed  that  this  point  was  waived.  The 
counsel  for  the  defendants  asked  to  go  to  the  jury  upon  several  questions, 
but  did  not  include  among  them  the  question  whether  this  warranty 
was  broken.  It  must,  I  think,  be  assumed  that  when  a  party  requests 
that  certain  specified  questions  be  submitted  to  the  jury,  for  which 
there  is  no  valid  ground,  that  he  intends  to  waive  the  submission  of 
other  questions.     43  N.  Y.  85,  and  cases  cited. 

Regarding  this  point  as  waived,  the  requests  made  to  submit  to  the 
jury  were  properly  declined. 

The  ruling  in  rejecting  the  letter  of  the  28th  March,  1868,  to  the 
defendants'  predecessors,  with  this  point  out  of  the  case,  was  not  erro- 
neous. That  letter  was  not  a  warranty  that  the  iron  in  question  was 
tough  and  soft,  but  might  have  been  admissible  as  a  declaration  of  the 
party,  if  the  iron  had  not  been  XX  pipe  iron.  The  same  brand  of  iron 
is  not  always  of  the  same  quality,  and  the  statement,  the  year  before, 
by  the  plaintiff  that  he  was  receiving  iron  of  that  brand,  which  was 
tough  and  soft,  would  not  inure  as  a  warranty  that  all  the  iron  which 
he  might  thereafter  sell  of  that  brand  was  of  that  quality. 

We  think  that  the  judgment  must  be  affirmed. 

All  concur ;  Andrews,  J.,  concurring  in  result. 

Judgment  affirmed. 


SECT.  II.]  BURN  BY  V.    BOLLETT.  669 


BURXBY  v.  BOLLETT. 
In  the  Exchequer,  April  21,  1847. 

[Reported  in  16  Meeson  <$■   Welsby,  044.] 

Parke,  B.,  now  delivered  the  judgment  of  the  Court.  This  case 
was  tried  before  my  Brother  Patteson,  at  the  last  Summer  Assizes  for 
I  lie  county  of  Lincoln.  It  was  an  action  on  the  case,  alleging  that  the 
defendant  publicly  offered  the  carcase  of  a  pig  for  sale,  as  and  for  food 
for  man,  and  by  falsely  and  fraudulently  warranting  it  to  be  whole- 
some, and  fit  for  food  for  man,  sold  it  to  the  plaintiff,  who  paid  the 
defendant  the  price. 

It  appeared  on  the  trial,  that  the  carcase  of  the  pig  was  exposed  for 
sale  in  the  public  street  of  Lincoln,  in  the  shop  of  one  Penrose,  a 
butcher,  when  the  defendant  bought  it,  but  did  not  take  it  away.  The 
plaintiff  afterwards  applied  to  Penrose  to  purchase  it,  but  being  in- 
formed it  was  already  sold  to  the  defendant,  he  applied  to  him.  and 
agreed  with  him  to  buy  it,  and  paid  him  for  it.  It  turned  out  that  the 
pig  was  measly  ;  it  became  afterwards  putrid,  was  unfit  for  food,  and 
the  plaintiff,  having  called  on  the  defendant  to  repay  the  sum  given  to 
him,  which  was  refused,  brought  this  action. 

It  did  not  appear  that  the  defendant  had  any  knowledge  of  the  un- 
sound state  of  the  pig  ;  and  he  was  not  a  butcher,  or  dealer  in  meat. 
He  had  not  exposed  it  publicly  for  sale.  He  had  bought  the  pig  for 
his  own  use,  and  left  it  till  it  should  be  delivered  ;  but  when  he  sold  it 
to  the  plaintiff,  there  was  a  reasonable  presumption  for  the  considera- 
tion of  the  jury  that  he  knew  it  was  to  be  used  for  human  food. 

On  this  state  of  facts.  Mr.  Whitehurst,  for  the  defendant,  proved  for  a 
nonsuit  at  the  close  of  the  plaintiff's  case.  The  learned  judge  permitted 
the  case  to  proceed,  reserving  the  point,  whether  he  ought  to  have  non- 
suited. The  plaintiff  had  a  verdict,  and  a  rule  nisi  for  a  nonsuit  having 
been  obtained,  the  case  was  fully  argued  at  the  sittings  after  last  term. 

The  argument  for  the  plaintiff  was,  that  the  sale  of  victuals  to  be 
used  as  food  for  man  differed  from  the  sale  of  other  commodities,  and 
that  the  vendor  of  such,  if  they  were  unwholesome,  was  liable  to  the 
vendee,  without  fraud  or  warranty.  This  position  is  laid  down,  ap- 
parently in  general  terms,  in  Keilway,  91  ;  but  the  cases  there  referred 
to,  in  the  Year  Books,  9  Hen.  G,  37,  pi.  53,  and  11  Edw.  4,  Trim  10, 
pi.  6,  and  other  authorities,  when  considered,  lead  to  this  conclusion, 
that  there  is  no  other  difference  between  the  sale  of  victuals  for  food. 
and  other  articles,  than  this,  that  victuallers,  butchers,  and  other  com- 
mon dealers  in  victuals  are  not  merely  in  the  same  situation  that  com- 
mon dealers  in  other  commodities  are,  and  liable  under  the  same 
circumstances  as  they  are.  so  that,  if  an  order  be  sent  to  them  to  be 
executed,  they  are  presumed  to  undertake  to  supply  a  good  and  mer- 


670  BURXBY   V.    BOLLETT.  [ciIAP.  V. 

charitable  article  ;  but  they  are  also  liable  to  punishment  for  selling 
corrupt  victuals,  by  virtue  of  an  ancient  statute  (certainly  if  they  do 
so  knowingly,  and  probably  if  they  do  not),  and  are  therefore  respon- 
sible civilly  to  those  customers  to  whom  the}'  sell  such  victuals,  for  any 
special  or  particular  injury  by  the  breach  of  the  law  which  they  thereby 
commit.  That  they,  the  common  dealers,  not  all  persons,  are  liable 
criminally  for  selling  corrupt  victuals,  is  clear ;  for  Lord  Coke  says,  in 
4  Inst.  261  :  "This  court  of  the  leet  ma}'  inquire  of  corrupt  victual,  as  a 
common  nuisance,  whereof  some  have  doubted,  both  for  that  it  is  omitted 
in  the  statute  of  the  leet,  and  of  the  weak  authority  of  the  book  of  the 
9  Hen.  6,  where  Martyn  saith  that  it  is  ordained  that  none  should  sell 
corrupt  victual.  And  Cottismore  held  the  opinion  that  it  is  actio  pop u- 
iaris,  whereupon  it  is  collected  that  the  conusance  thereof  belongeth  to 
the  leet;  and  Martyn  and  Neal  (11  Hen.  4),  agreeing  with  him,  said 
truly;  for,  by  the  statute  of  51  Hen.  3,  Stat.  '  pillor',  et  tumbrel',  et 
assiss'  panis  et  cervis','  and  by  the  statute  made  in  the  reign  of  Kdw.  1, 
intituled  .Stat.  '  de  pistoribus  et  brasiatoribus,  et  aliis  vitellarus,'  it  is 
ordained  that  none  shall  sell  corrupt  victuals." 

The  statute  of  51  Hen.  .3,  of  the  Pillory  and  Tumbril,  and  Assize  of 
Bread  and  Ale,  applies  only  to  vintners,  brewers,  butchers,  and  cooks. 
Amongst  other  things,  inquiry  is  to  be  made  of  the  vintners'  names, 
and  how  they  sell  a  gallon  of  wine,  or  if  any  corrupted  wine  be  in  the 
town,  or  such  is  not  wholesome  for  man's  body ;  and  if  any  butcher 
sell  contagious  flesh,  or  that  died  of  the  murrain,  or  cooks  that  seethe 
unwholesome  flesh,  &c.  Lord  Coke  goes  on  to  say,  that  Britton,  who 
wrote  after  the  statute  51  Hen.  3,  and  following  the  same,  saith,  "  Puis 
soit  inquise  de  ceux  queux  achatent  per  un  manner  de  measure,  et  vendent 
per  meinder  measure  faux,  et  ceux  sont  punis  come  vendors  des  vines, 
et  auxi  ceux  que  serront  atteint  de  faux  aunes,  et  faux  poys,  et  auxi  les 
macegrieves  (jnacellarii,  butchers),  et  les  gents  que  de  usage  vendent 
a  trespassants  (passengers)  mauvaise  vians  corrumpus  et  wacrus,  et 
autrement  perillous  a  la  saunty  de  home,  encountre  le  forme  de  nous 
statutes." 

This  view  of  the  case  explains  what  is  said  in  the  Year  Book,  9  Hen. 
6,  53,  that  "  the  warrant}'  is  not  to  the  purpose  ;  for  it  is  ordained  that 
none  shall  sell  corrupt  victuals;"  and  what  is  said  by  Tanfield,  C.  B., 
and  Altham,  B.,  Cro.  Jac.  197,  "  that  if  a  man  sells  corrupt  victuals, 
without  warranty,  an  action  lies,  because  it  is  against  the  common- 
wealth ; "  and  also  explains  the  note  of  Lord  Hale,  in  1st  Fitzherbert's 
Natura  Brevium,  94,  that  there  is  diversity  between  selling  corrupt 
wines  as  merchandise  ;  for  there  an  action  on  the  case  does  not  lie 
without  warranty  ;  otherwise,  if  it  be  for  a  taverner  or  victualler,  if  it 
prejudice  any. 

The  defendant  in  this  case  was  not  dealing  in  the  way  of  a  common 
trade,  and  was  not  punishable  in  the  leet  for  what  he  did.  He  merely 
transferred  his  bargain  to  the  plaintiff.  He  falls  within  the  reason  of 
the  former  part  of  Lord   Hale's  distinction  ;  and  there  being  no  evi- 


SECT.  III.]  POULTON   V.    LATTIMORE.  G71 

dence  of  a  warranty,  or  of  any  fraud,  he  is  not  liable.  The  plaintiff 
ouglit,  therefore,  to  have  been  nonsuited  at  the  trial,  and  this  rule  must 
be  made  absolute.  Rule  absolute.1 


SECTION   III. 

Kemedies  for  Breach  of  Warranty. 

POULTON  v.   LATTIMORE. 
In  the  King's  Bench,  Hilary  Term,  1829. 

[Reported  in  9  Barnewall  Sf  Cresswell,  259.] 

A  — cmpsit  for  goods  sold  and  delivered.  Plea,  general  issue.  At 
the  trial  before  Garrow,  B„  at  the  Summer  Assizes  for  the  county  of 
Hertford,  1828,  it  appeared  that  the  action  was  brought  to  recover  the 
price  of  eight  quarters  of  cinq  foin  seed  sold  by  the  plaintiff  to  the 
defendant  at  £3  per  quarter,  and  warranted  to  be  good  new  growing 
seed.  The  defence  was,  that  it  did  not  correspond  with  the  warranty. 
It  was  proved  that  soon  after  the  seed  had  been  purchased  by  the 
defendant,  it  had  been  examined  and  tasted  by  a  person  of  skill,  and 
that  he  had  declared  it  not  to  be  good  growing  seed  ;  that  the  defendant 
did  not  communicate  this  to  the  plaintiff  or  return  the  seed;  but,  on 
the  contrary,  sowed  part,  and  sold  the  residue  to  two  individuals,  who 
were  called  as  witnesses,  and  they  stated  that  the  seed  had  proved 
wholly  unproductive,  and  was  not  worth  anything,  and  that  they  neither 
had  paid  nor  would  pay  for  it.  It  was  insisted,  on  the  part  of  the 
plaintiff,  that  as  the  defendant  had  not  returned  the  seed,  hut  had  sown 
part  of  it,  and  had  sold  the  residue  to  two  persons  who  had  sown  it, 
he  had  adopted  the  contract  in  part ;  that  he  could  not  adopt  it  in  part 
by  keeping  the  seed,  and  reject  it  in  part  by  refusing  to  pay  the  stipu- 
lated price;  but  that  tiaving  adopted  it  in  part,  he  was  bound  to  adopt 
it  altogether,  and  therefore  to  pay  the  stipulated  price  ;  and  that  being 
so,  that  it  was  not  competent  to  the  defendant  to  insist  on  the  breach 
of  warranty  as  a  defence  to  this  action.  The  learned  Judge  received 
the  evidence,  but  reserved  liberty  to  the  plaintiff,  in  case  the  verdict  of 
the  jury  should  be  against  him.  to  move  to  enter  a  verdict  in  his  favor, 
if  the  Court  should  be  of  opinion  that  the  breach  of  warranty  was  no 

1  In  a  few  jurisdictions  it  has  been  decided  in  accordance  with  a  statement  in  3 
Blackstone's  Commentaries,  165,  that  there  is  always  an  implied  warranty  in  the  sale 
of  provisions.  Hoover  v.  Peters,  18  Mich.  51  ;  Sinclair  v.  Hathaway.  57  .Mich.  60; 
Copas  v.  Anglo-American  Provision  Co.,  73  Mich.  541  ;  Van  Bracklin  r.  Fonda,  12 
Johns.  46S;  Divine  v.  McCormick,  50  Barb.  116  (compare  Moses  v.  Mead,  1  Denio, 
378,  5  Denio,  617;  Fairbank  Canning  Co.  v.  Met/per,  118  N.  Y.  267).  But  it  is 
doubtful  if  it  would  generally  be  held  that  there  was  such  a  warranty,  unless  the  seller 
was  a  dealer,  and  the  buyer  was  buying  for  immediate  consumption.  Bumphreys  v. 
Comline,  8  Blackf.  516  ;  Giroux  v.  Stedman,  145  Mass.  439  (citing  earlier  Massachu- 
setts cases) ;  Kyder  v.  Neitge,  21  Minn.  70. 


672  POULTON    V.    LATTIMORE.  [CHAP.  V. 

defence  to  the  action;  and  lie  directed  the  jury  to  find  for  the  defendant 
if  upon  the  evidence  the}'  were  of  opinion  that  the  seed  did  not  cor- 
respond with  the  warranty.  The  jury  having  found  for  the  defendant, 
a  rule  nisi  was  obtained  in  last  Michaelmas  term  by  Brodrick  for 
entering  a  verdict  for  the  plaintiff  for  the  value  of  the  seed,  against  which 

Andrews,  Serjt,  now  showed  cause. 

Brodrick  and  Ryland,  contra. 

Littledalb,  J.  It  seeins  to  me  that  it  was  competent  to  the  de- 
fendant, in  answer  to  this  action,  which  is  brought  by  the  plaintiff  to 
recover  the  price  or  value  of  the  seed,  to  show  that  it  did  not  corre- 
spond with  the  warranty.  It  is  said,  that  the  buyer  cannot  insist  on 
that  as  a  defence,  because  he  neither  returned  the  seed  to  the  seller, 
nor  gave  any  notice  to  him  that  it  was  defective  in  quality.  I  am 
of  opinion,  that  where  goods  are  warranted,  the  vendee  is  entitled, 
although  he  do  not  return  them  to  the  vendor,  or  give  notice  of  their 
defective  quality,  to  bring  an  action  for  breach  of  the  warranty  ;  or  if 
an  action  be  brought  against  him  by  the  vendor  for  the  price,  to  prove 
the  breach  of  the  warranty,  either  in  diminution  of  damages,  or  in 
answer  to  the  action,  if  the  goods  be  of  no  value.  In  Fielder  v. 
Starkin,  1  H.  Bl.  17,  a  horse  had  been  sold,  warranted  sound.  It  was 
proved  to  have  been  unsound  at  the  time  of  the  sale.  Soon  after  the 
sale,  the  defendant  discovered  him  to  be  unsound,  but  kept  him  three 
months  after  the  discover}7.  It  was  decided  that  the  seller  was  liable 
to  an  action  on  the  warranty,  although  the  purchaser  had  not  returned 
the  horse,  or  given  notice  of  the  unsoundness,  on  the  ground  that 
there  had  been  a  breach  of  the  contract  on  the  part  of  the  seller.  The 
not  giving  notice,  indeed,  raises  a  strong  presumption  that  the  article 
at  the  time  of  the  sale  corresponded  with  the  warrant}*,  and  calls  for 
strict  proof  of  breach  of  the  warranty.  But  if  that  be  clearly  estab- 
lished, the  seller  will  be  liable  in  an  action  brought  for  breach  of  his 
contract,  notwithstanding  any  length  of  time  which  may  have  elapsed 
since  the  sale.  And  if  that  be  so,  it  is  reasonable  and  just,  when  an 
action  is  brought  by  the  seller  to  recover  the  price  or  value  of  the 
goods,  that  the  buyer  should  be  at  liberty  to  show  the  breach  of  the 
warranty  in  defence  to  the  action.  Then  the  only  question  is,  was 
the  seller  entitled  to  recover  anything.  There  may  be  cases  where  a 
buyer  may  keep  goods  which,  though  they  do  not  correspond  with  the 
warranty,  may  be  worth  something,  and  the  seller  may  be  entitled  to 
recover.  Suppose  one  hundred  bushels  of  seed  had  been  sold,  and 
warranted  good,  and  one  bushel  turned  out  to  be  bad,  the  seller  would 
be  entitled  to  recover  the  value  of  the  ninety-nine.  The  question  in 
this  case,  is,  was  the  article  worth  anything?  And  secondly,  if  it  was, 
should  the  learned  judge  have  left  the  question  of  value  to  the  jury? 
His  attention  was  not  called  to  that  point,  and  if  it  had,  taking  the 
whole  evidence  together,  I  think  that  the  jury  would  have  found  that 
the  seed  was  worth  nothing.  Hide  discharged.1 

1  Bavley  and  Parke,  JJ.,  delivered  concurring  opinions. 


SECT.  III.]  STREET   V.   BLAT.  673 

STREET  v.  BLAY. 
In  the  King's  Bench,  Trinity  Term,  1831. 

[  ll< ported  in  2  Darnewall  $•  Adolphus,  456.] 

Loup  Tenterden,  C.  J.,  delivered  the  opinion  of  the  court.1 
The  facts  of  the  case  were  these:  The  plaintiff,  on  the  2d  of  Feb- 
ruary, sold  the  horse  to  the  defendant  for  £43,  with  a  warranty  of 
soundness.  The  defendant  took  the  horse,  and  on  the  same  day  sold 
it  to  Bailey  for  £45.  Bailey,  on  the  following  day,  parted  with  it  in 
exchange  to  Osborne  ;  and  Osborne,  in  two  or  three  days  afterwards, 
sold  it  to  the  defendant  for  £30.  No  warranty  appeared  to  have  been 
given  on  any  of  the  three  last  sales.  The  horse  was,  in  fact,  unsound 
at  the  time  of  the  first  sale;  and  on  the  9th  of  February  the  defend- 
ant offered  to  return  it  to  the  plaintiff,  who  refused  to  accept  it.  The 
question  for  consideration  is,  whether  the  defendant,  under  these  cir- 
cumstances, had  a  right  to  return  the  horse,  and  thereby  exonerate 
himself  from  the  payment  of  the  whole  price  ? 

It  is  not  necessary  to  decide,  whether  in  any  case  the  purchaser  of 
a  specific  chattel,  who,  having  had  an  opportunity  of  exercising  his 
judgment  upon  it,  has  bought  it,  with  a  warranty  that  it  is  of  any  par- 
ticular quality  or  description,  and  actually  accepted  and  received  it 
into  his  possession,  can  afterwards,  upon  discovering  that  the  warranty 
has  not  been  complied  with,  of  his  own  will  only,  without  the  concur- 
rence of  the  other  contracting  party,  return  the  chattel  to  the  vendor, 
and  exonerate  himself  from  the  payment  of  the  price,  on  the  ground 
that  he  has  never  received  that  article  which  he  stipulated  to  purchase. 
There  is.  indeed,  authority  for  that  position.  Lord  Eldon,  in  the  case 
of  Curtis  v.  Hannay,  3  Esp.  N.  P.  C.  83,  is  reported  to  have  said,  that 
"  he  took  it  to  be  clear  law,  that  if  a  person  purchases  a  horse  which  is 
warranted  sound,  and  it  afterwards  turns  but  that  the  horse  was  un- 
sound at  the  time  of  the  warranty,  the  buyer  might,  if  he  pleased,  keep 
the  horse  and  bring  an  action  on  the  warranty,  in  which  he  would  have 
a  right  to  recover  the  difference  between  the  value  of  a  sound  horse 
and  one  with  such  defects  as  existed  at  the  time  of  the  warranty  ;  or 
he  might  return  the  horse  and  bring  an  action  to  recover  the  full  money 
paid  ;  but  in  the  latter  case,  the  seller  had  a  right  to  expect  that  the 
horse  should  be  returned  in  the  same  state  he  was  when  sold,  and  not 
by  any  means  diminished  in  value  ;"  and  he  proceeds  to  say,  that  if  it 
were  in  a  worse  state  than  it  would  have  been  if  returned  immediately 
after  the  discovery,  the  purchaser  would  have  no  defence  to  an  action 
for  the  price  of  the  article.  It  is  to  be  implied  that  he  would  have  a 
defence  in  case  it  were  returned  in  the  same  state,  and  in  a  reason- 
able time  after  the  discovery.     This  dictum  has  been  adopted  in  3Ir. 

1  Lord  Tenterden,  C  J.,  Littledale,  Parke,  and  Pattesox,  JJ. 

43 


674  STREET   V.   BLAY.  [CHAP.  V. 

Starkie's  excellent  work  on  the  Law  Of  Evidence,  part  iv.  p.  G45  ;  and 
it  is  there  said  that  a  vendee  may,  in  such  a  case,  rescind  the  contract 
altogether  by  returning  the  article,  and  refuse  to  pay  the  price,  or  re- 
cover it  back  if  paid.     It  is,  however,  extremely  difficult,  indeed  impos- 
sible, to  reconcile  this  doctrine  with  those  cases  in  which  it  has  been 
held   that  where  the  property  in  the  specific  chattel  has  passed  to  the 
vendee,  and  the  price  has  been  paid,  he  has  no  right,  upon  the  breach 
of  the  warranty,  to  return  the  article  and  revest  the  property  in  the 
vendor,  and  recover  the  price  as  money  paid  on  a  consideration  which 
has  failed,  but  must  sue  upon  the  warranty,  unless  there  has  been  a 
condition  in  the  contract,   authorizing   the  return,  or  the  vendor  has 
received  back  the  chattel,  and  has  thereby  consented  to  rescind  the 
contract,  or  has  been  guilty  of  a  fraud,  which  destroys  the  contract 
altogether.     Weston  v.  Downes,  1  Doug.  23  ;  Towers  v.  Barrett,  1  T.  R. 
133  ;    Payne  v.  Whale,   7    East,  274  ;    Power  v.    Wells,  Doug.  24  n.  ; 
and   Emanuel  v.   Dane,  3  Campb.  299,  where  the  same  doctrine  was 
applied  to  an  exchange  with  a  warranty,  as  to  a  sale,  and  the  vendee 
held  not  to  be  entitled  to  sue  in  trover  for  the  chattel  delivered,  by 
way  of  barter,  for  another  received.     If  these  cases  are  rightly  decided, 
and  we  think  they  are,  and  they  certainly  have  been  always  acted  upon, 
it  is  clear  that  the  purchaser  cannot  by  his  own  act  alone,  unless  in 
the  excepted  cases  above  mentioned,  revest  the  property  in  the  seller, 
and  recover  the  price  when  paid,  on  the  ground  of  the  total  failure  of 
consideration  ;  and   it  seems   to  follow  that  he   cannot,  by  the  same 
means,   protect  himself  from  the  payment  of  the  price  on  the  same 
ground.     On  the  other  hand,  the  cases  have  established,  that  the  breach 
of  the  warranty  may  be  given  in  evidence  in  mitigation  of  damages,  on 
the  principle,  as  it  should  seem,  of  avoiding  circuity  of  action,  Cormack 
v.  Gillis,  cited  7  East,  480  ;  King  v.  Boston,  7  East,  481  n. ;  and  there  is 
no  hardship  in  such  a  defence  being  allowed,  as  the  plaintiff  ought  to  be 
prepared  to  prove  a  compliance  with  his  warranty,  which  is  part  of  the 
consideration  for  the  specific  price  agreed  b}'  the  defendant  to  be  paid. 

It  is  to  be  observed,  that  although  the  vendee  of  a  specific  chattel, 
delivered  with  a  warranty,  may  not  have  a  right  to  return  it.  the  same 
reason  does  not  apply  to  cases  of  executory  contracts,  where  an  article, 
for  instance,  is  ordered  from  a  manufacturer,  who  contracts  that  it 
shall  be  of  a  certain  quality,  or  fit  for  a  certain  purpose,  and  the  article 
sent  as  such  is  never  completely  accepted  Irv  the  party  ordering  it.  In 
this  and  similar  cases  the  latter  ma}'  return  it  as  soon  as  he  discover 
the  defect,  provided  he  has  done  nothing  more  in  the  mean  time  than 
was  necessary  to  give  it  a  fair  trial,  Okell  /•.  Smith,  1  Stark.  N.  P.  C. 
li'T  ;  nor  would  the  purchaser  of  a  commodity,  to  be  afterwards  deliv- 
ered according  to  sample,  be  bound  to  receive  the  bulk,  which  may  not 
agree  with  it ;  nor  after  having  received  what  was  tendered  and  deliv- 
ered  as  being  in  accordance  with  the  sample,  will  he  be  precluded  b}r 
the  simple  receipt  from  returning  the  article  within  a  reasonable  time 
for  the  purpose  of  examination  and   comparison.     The  observations 


SECT.  III.]  MONDEL   V.    STEEL.  673 

above  stated  are  intended  to  apply  to  the  purchase  of  a  certain  specific 
chattel,  accepted  and  received  by  the  vendee,  and  the  property  in  which 
is  completely  and  entirely  vested  in  hi  in. 

But  whatever  may  be  the  right  of  the  purchaser  to  return  such  a  war- 
ranted article  in  an  ordinary  case,  there  is  no  authority  to  show  that  he 
may  return  it  where  the  purchaser  has  done  more  than  was  consistent 
with  the  purpose  of  trial,  where  he  has  exercised  the  dominion  of  an 
owner  over  it,  by  selling  and  parting  with  the  property  to  another,  and 
where  he  has  derived  a  pecuniary  benefit  from  it.  These  circumstances 
concur  in  the  present  case  ;  and  even  supposing  it  might  have  been 
competent  for  the  defendant  to  return  this  horse,  after  having  accepted 
it,  and  taken  it  into  his  possession,  if  he  had  never  parted  with  it  to 
another,  it  appears  to  us  that  he  cannot  do  so  after  the  re-sale  at  a 
profit. 

These  are  acts  of  ownership  wholly  inconsistent  with  the  purpose  of 
trial,  and  which  are  conclusive  against  the  defendant,  that  the  particu- 
lar chattel  was  his  own  ;  and  it  ma}-  be  added,  that  the  parties  cannot 
be  placed  in  the  same  situation  by  the  return  of  it,  as  if  the  contract 
had  not  been  made,  for  the  defendant  has  derived  an  intermediate  bene- 
fit in  consequence  of  the  bargain,  which  he  would  still  retain.  But  he 
is  entitled  to  reduce  the  damages,  as  he  has  a  right  of  action  against  the 
plaintiff  for  the  breach  of  warrant}".  The  damages  to  be  recovered  in 
the  present  action  have  not  been  properly  ascertained  by  the  jury,  and 
there  must  be  a  new  trial,  unless  the  parties  can  agree  to  reduce  the 
sum  for  which  the  verdict  is  to  be  entered  ;  and  if  they  do  agree,  the 
verdict  is  to  be  entered  for  that  sum. 

Rule  absolute  on  the  above  terms. 


MONDEL  v.  STEEL. 

In  the  Exchequer,  Trinity  Vacation,  1841. 

[Reported  in  8  Meeson  $•  Welsh?/,  858.] 

TnE  judgment  of  the  court  (Parke,  B.,  Alderson,  B.,  Gurnet,  B., 
and  Rolfe,  B.)  was  now  delivered  by 

Parke,  B.  In  this  case,  the  declaration  is  in  special  assumpsit  on  a 
contract  to  build  a  ship  for  the  plaintiff,  at  a  certain  rate  per  ton,  and 
according  to  a  certain  specification  :  and  the  breach  assigned  is  for  not 
building  a  vessel  with  scantlings,  fastenings,  and  planking,  according 
to  such  specification  ;  by  reason  whereof  the  ship,  on  a  voyage  from 
London  to  New  South  Wales  and  back,  was  so  much  strained  that  it 
became  necessary  to  re-fasten  and  repair  her. 

To  this  declaration  there  was  one  plea,  to  which  it  is  unnecessarv  to 
allude,  as  it  was  admitted  to  be  bad  on  special  demurrer,  and  is  to  be 


676  MONDEL   V.    STEEL.  [CHAP.  V. 

amended  ;  and  a  second  plea,  on  which  the  question,  which  we  have 
taken  time  to  consider,  arises. 

This  plea  states  in  substance,  that  the  defendant  had  sued  the  plain- 
tiff for  the  balance  of  the  agreed  price  of  the  vessel,  after  payment  of 
£3,500,  and  also  for  a  sum  of  £134  odd  for  extra  work,  in  the  form 
of  an  action  for  work  and  labor,  and  for  goods  sold  and  delivered  ;  that 
issue  was  joined,  and,  on  the  trial  of  the  cause,  the  plaintiff  gave  evi- 
dence in  his  defence  of  the  same  breach  of  contract  alleged  in  the 
declaration  ;  and  insisted,  that  if  the  amount  of  compensation  to  which 
he  was  entitled,  exceeded  or  equalled  the  balance  of  the  price  and  the 
value  of  the  extra  work,  the  now  plaintiff  was  entitled  to  a  verdict ;  if 
it  was  less,  that  he  was  entitled  to  a  deduction  from  the  amount  of  both, 
of  such  amount  of  compensation.  The  plea  proceeds  to  state  (and,  we 
must  assume,  correctly,  for  the  purposes  of  this  argument,  though  the 
statement  has  arisen  from  mistake),  that  the  learned  judge  before  whom 
the  cause  was  tried,  my  brother  Rolfe,  so  directed  the  jury  ;  and  that  the 
jury  found  that  the  now  defendant  had  committed  a  breach  of  contract, 
and  was  entitled  to  some  compensation,  which  they  deducted  from  the 
price  of  the  vessel  and  value  of  the  extra  work  ;  and  the  now  defend- 
ant had  judgment  for  the  amount,  after  such  deduction  had  been  made, 
since  the  commencement  of  this  suit. 

The  plaintiff  demurred  to  this  plea,  assigning  several  causes  of 
special  demurrer,  which  it  is  not  necessary  to  notice,  as  we  are  all  of 
opinion  that  it  is  bad  in  substance. 

The  ground  on  which  it  was  endeavored  to  support  the  plea,  in  a 
very  ingenious  argument,  was  this  :  that  a  defendant  in  an  action  for 
the'stipulated  price  of  a  chattel,  which  the  plaintiff  had  contracted  to 
make  for  the  defendant  of  a  particular  quality,  or  of  a  specific  chattel 
sold  with  a  warranty,  and  delivered,  had  the  option  of  setting  up  a 
counter  claim  for  breach  of  the  contract  in  the  one  instance,  or  the 
warranty  in  the  other,  in  the  nature  of  a  cross-action  ;  and  that  if  he 
exercised  that  option,  he  was  in  the  same  situation  as  if  he  had 
brought  such  an  action  ;  and  consequently,  could  not,  after  judgment 
in  one  action,  bring  another ;  and  the  case  was  likened  to  a  set-off 
under  the  statutes.  This  argument  was  founded  on  no  other  authority 
than  an  expression  of  Lord  Tenterden  in  giving  the  judgment  of  the 
court  in  the  case  of  Street  v.  Blay,  2  B.  &  Aid.  4G2,  his  lordship 
having  said  that  a  breach  of  warranty  might  be  given  in  evidence  in 
an  action  for  the  price  of  a  specific  article  sold,  in  mitigation  of  dam- 
ages, "  on  the  principle,  it  should  seem,  of  avoiding  circuity  of  action." 
But  we  are  all  of  opinion  that  no  such  inference  is  to  be  drawn  from 
that  expression  ;  what  was  meant  was,  that  the  sum  to  be  recovered 
for  the  price  of  the  article  might  be  reduced  by  so  much  as  the  article 
was  diminished  in  value,  by  reason  of  the  non-compliance  with  the 
warranty;  and  that  this  abatement  was  allowed  in  order  to  save  the 
necessity  of  a  cross-action.  Formerly,  it  was  the  practice,  where  an 
action  was  brought  for  an  agreed  price  of  a  specific  chattel,  sold  with  a 


SECT.  III.]  MONDEL   V.    STEEL.  677 

warranty,  or  of  work  which  was  to  be  performed  according  to  contract, 
to  allow  the  plaintitf  to  recover  the  stipulated  sum,  leaving  the  defend- 
ant to  a  cross-aetion  for  breach  of  the  warranty  or  contract ;  in  which 
action,  as  well  the  difference  between  the  price  contracted  for  and  the 
real  value  of  the  articles  or  of  the  work  done,  as  any  consequential 
damage,  might  have  been  recovered;  and  this  'course  was  simple  and 
consistent.  In  the  one  case,  the  performance  of  the  warranty  not 
being  a  condition  precedent  to  the  payment  of  tin;  price,  the  defend- 
ant, who  received  the  chattel  warranted,  has  therein-  the  property  vested 
in  him  indefensibly,  and  is  incapable  of  returning  it  back;  he  has  all 
that  iie  stipulated  for  as  the  condition  of  paying  the  price,  and  there- 
fore it  was  held  that  he  ought  to  pa}-  it,  and  seek  his  remedy  on  the 
plaintiff's  contract  of  warranty.  In  the  other  case,  the  law  appears  to 
have  construed  the  contract  as  not  importing  that  the  performance  of 
every  portion  of  the  work  should  be  a  condition  precedent  to  the 
payment  of  the  stipulated  price,  otherwise  the  least  deviation  would 
have  deprived  the  plaintiff  of  the  whole  price  ;  and  therefore  the  de- 
fendant was  obliged  to  pay  it,  and  recover  for  am-  breach  of  contract 
on  the  other  side.  But  after  the  case  of  Basten  v.  Butter,  7  East, 
479,  a  different  practice,  which  had  been  partially  adopted  before  in 
the  case  of  King  v.  Boston,  7  East,  481,  n.,  began  to  prevail,  and  being 
attended  with  much  practical  convenience,  has  been  since  generally 
followed  ;  and  the  defendant  is  now  permitted  to  show  that  the  chattel 
by  reason  of  the  non-compliance  with  the  warrant}'  in  the  one  case,  and 
the  work  in  consequence  of  the  non-performance  of  the  contract  in  the 
other,  were  diminished  in  value ;  Kist  v.  Atkinson,  2  Camp.  64 ; 
Thornton  v.  Place,  1  M.  &  Rob.  218,  &c.  The  same  practice  has 
not,  however,  extended  to  all  cases  of  work  and  labor,  as  for  instance, 
that  of  an  attorney,  Templerv.  MT.achlan,  2  Bos.  &  P.  N.  R.  136,  unless 
no  benefit  whatever  has  been  derived  from  it ;  nor  in  an  action  for 
freight:  Shiels  v.  Davies,  4  Camp.  119.  It  is  not  so  easy  to  reconcile 
these  deviations  from  the  ancient  practice  with  principle,  in  those  par- 
ticular cases  above-mentioned,  as  it  is  in  those  where  an  executory 
contract,  such  as  this,  is  made  for  a  chattel,  to  be  manufactured  in  a 
particular  manner,  or  goods  to  be  delivered  according  to  a  sample; 
Germaine  v.  Burton,  3  Stark.  32;  where  the  party  may  refuse  to 
receive,  or  may  return  in  a  reasonable  time,  if  the  article  is  not  such  as 
bargained  for;  for  in  these  cases  the  acceptance  or  non-return  affords 
evidence  of  a  new  contract  on  a  quantum  r<il>J„it ;  whereas,  in  a  case 
of  a  delivery  with  a  warranty  of  a  specific  chattel,  there  is  no  power  of 
returning,  and  consequently  no  ground  to  imply  a  new  contract  ;  and  in 
some  cases  of  work  performed,  there  is  difficulty  in  finding  a  reason  for 
such  presumption.  It  must,  however,  be  considered,  that  in  all  these 
cases  of  goods  sold  and  delivered  with  a  warranty,  and  work  and  labor, 
as  well  as  the  case  of  goods  agreed  to  be  supplied  according  to  a  con- 
tract, the  rule  which  has  been  found  so  convenient  is  established  ;  and 
that  it  is  competent  for  the  defendant,  in  all  of  those,  not  to  set-off,  by 


678  HEYWORTH   V.    HUTCHINSON.  [CHAP.  V. 

a  proceeding  in  the  nature  of  a  cross-action,  the  amount  of  damages 
which  he  has  sustained  by  breach  of  the  contract,  but  simply  to  defend 
himself  by  showing  how  much  less  the  subject-matter  of  the  action  was 
worth,  by  reason  of  the  breach  of  contract ;  and  to  the  extent  that  he 
obtains,  or  is  capable  of  obtaining,  an  abatement  of  price  on  that 
account,  he  must  be  considered  as  having  received  satisfaction  for  the 
breach  of  contract,  and  is  precluded  from  recovering  in  another  action 
to  that  extent ;  but  no  more. 

The  opinion,  therefore,  attributed  on  this  record  to  the  learned 
judge,  is,  we  think,  incorrect,  and  not  warranted  by  law;  and  all  the 
plaintiff  could  by  law  be  allowed  in  diminution  of  damages,  on  the 
former  trial,  was  a  deduction  from  the  agreed  price,  according  to 
the  difference,  at  the  time  of  the  delivery,  between  the  ship  as  she  was, 
and  what  she  ought  to  have  been  according  to  the  contract :  but  all 
claim  for  damages  beyond  that,  on  account  of  the  subsequent  necessity 
for  more  extensive  repairs,  could  not  have  been  allowed  in  the  former 
action,  and  ma}r  now  be  recovered. 

We  have  already  observed  in  the  course  of  the  argument,  that  the 
defence  made  in  the  second  plea  cannot  be  supported  on  the  ground 
that  it  discloses  a  mutual  agreement  by  the  plaintiff  and  defendant  to 
leave  the  amount  of  the  cross-claim  to  the  jury  as  arbitrators,  and  that 
they  have  made  an  award.  The  plea  does  not  state  any  such  agree- 
ment, or  an  equivalent  thereto.  Our  judgment  must  therefore  be  for 
the  plaintiff.  Judgment  for  the  plaintiff. 


HEYWORTH  v.   HUTCHINSON. 
In  the  Queen's  Bench,  April  17,  1867. 

[Reported  in  Law  Reports,  2  Queen's  Bench,  447.] 

At  the  trial,  before  Shee,  J.,  at  the  Spring  Assizes  at  Liverpool,  it 
appeared  that  the  action  was  brought  for  the  non-acceptance  by  the  de- 
fendant of  certain  wool  which  he  had  agreed  at  Liverpool  to  purchase 
of  the  plaintiffs,  through  their  brokers,  Messrs.  Perkins  &  Robinson  ; 
the  following  being  the  material  parts  of  the  contract  or  sale  note :  — 

Victoria  Buildings,  IIackin's  Hey, 
Liverpool,  7  April,  1866. 
Mr.  Richard  Hutchinson. 

Dear  Sir,  —  We  have  this  day  bought  on  your  account  from  our 
principals  the  following  wool,  viz.  [then  followed  an  enumeration  of 
different  lots  of  wool,  making  altogether]  413  bales  greasy  Entiv  Rios, 
at  I0\d.  per  lb.,  to  arrive  ex  "  Stige,"  or  any  vessel  they  may  be  trans- 
shipped in,  and  subject  to  the  wool  not  being  sold  in  New  York  before 
advice  reaches  the  consignees  to  send  the  wool  forward  here.     The  wool 


SECT.  III.]  IIEYW0KTI1    V.    HUTCHINSON.  079 

to  be  guaranteed  about  similar  to  samples  in  Perkins  &  Robinson's 
possession,  and  if  any  dispute  arises  it  shall  be  deeided  by  the  selling 
brokers,  whose  decision  shall  be  final  .  .   .   &c. 

We  are,  your  obedient  servants, 

Perkins  &  Robinson. 

The  413  bales  arrived  in  Liverpool  from  New  York  by  the  "  Sunrise," 
in  June,  1866,  of  which  the  brokers  informed  the  defendant,  and  after 
examination  they  sent  an  account  to  him,  stating  that,  as  to  180  bales 
(specifically  described),  "these  wools  are  not  so  good  as  the  original 
samples  by  2d.  per  11). ;  "  as  to  201  bales,  "this  parcel  is  not  so  good  :is 
sample  by  \\d.  per  lb.  ;  "  and  as  to  37  bales,  "  this  parcel  is  not  so  good 
as  sample  by  Id.  per  lb."  The  defendant  afterwards  inspected  the  wool, 
and  refused  to  take  it ;  and  after  due  notice  to,  and  under  protest  from, 
the  defendant,  on  the  9th  of  August,  18G6,  the  brokers  formally  awarded 
that  the  413  bales  "should  be  taken  by  the  defendant  at  the  following 
allowances,"  as  set  out  in  the  second  count. 

Mr.  Robinson,  one  of  the  brokers,  was  called  as  a  witness,  and  said 
that  the  wool  was  not  "about  similar  to  samples,"  and  that  was  the 
reason  he  made  the  allowances. 

Certain  disputed  facts,  which  are  immaterial  for  the  present  report, 
were  left  to  the  jur}',  and  a  verdict  was  taken  by  consent  for  £1,747, 
with  leave  to  move  to  enter  a  nonsuit  or  verdict  for  the  defendant,  if 
the  court  should  think  him  entitled  on  the  true  construction  of  the  con- 
tract, the  court  to  amend  any  of  the  pleadings  if  necessaiy. 

E.  James,  Q.  C.  (Baylis  with  him),  moved  accordingly,  and  con- 
tended that,  under  the  contract,  all  the  brokers  had  to  decide  was, 
whether  the  wool  was  or  was  not  "  about  similar  to  samples  ; "  that  the 
evidence  showed  that,  although  the  wool  was  not  about  similar  to  sam- 
ples, they  had  not  decided  this,  but  had  awarded  that  the  defendant 
should  take  the  wool  at  a  certain  abatement  in  the  price.  They  had  no 
authority  to  do  this,  and  therefore  in  any  view  the  plaintiffs  could  not 
succeed  in  the  present  action. 

Blackburn,  J.  The  contract  relates  to  the  particular  bales  of 
wool  specified,  and  to  those  only  ;  and  the  additional  clause  that  the 
contract  is  to  be  off  if  the  bales  are  previously  sold  in  New  York, 
shows  that  the  contract  is  confined  to  this  particular  cargo.  Then 
the  wools  are  "guaranteed  about  similar  to  samples."  Now,  such 
a  clause  may  be  a  simple  guarantee  or  warranty,  or  it  may  be  a  condi- 
tion. Generally  speaking,  when  the  contract  is  as  to  any  goods,  such 
a  clause  is  a  condition  going  to  the  essence  of  the  contract ;  but  when 
the  contract  is  as  to  specific  goods,  the  clause  is  only  collateral  to  the 
contract,  and  is  the  subject  of  a  cross-action,  or  matter  in  reduction  of 
damages,  according  to  the  case  of  Mondel  /•.  Steel,  8  M.  &  W.  858,  870. 
Here  there  is,  I  think,  merely  a  warranty  as  distinguished  from  a  con- 
dition ;  so  that,  if  an  action  were  brought,  the  question  would  be,  was 
the  contract  broken  or  not?  and  if  so,  how  much  reduction  ought  there 


680  AZ&V1AR   V.    CASELLA.  [CHAP.  V. 

to  be  made,  in  estimating  the  damages,  from  the  contract  price  in  con- 
sequence of  the  inferiority  of  the  goods?  But  instead  of  leaving  the 
parties  simply  to  an  action,  the  contract  goes  on  to  say  :  "If  any  dis- 
pute arises  it  shall  be  decided  by  the  selling  brokers."  Mr.  James  says, 
they  are  merely  to  decide  the  question,  aye  or  no,  are  the  goods  "  about 
similar  to  samples?"  But  I  think  the  meaning  is,  that  the  brokers  are 
to  proceed  and  decide  the  case  on  the  principle  enunciated  in  Mondell 
v.  Steel,  supra.  If  the  inferiority  were  so  great  as  to  amount  in  effect 
to  a  different  article,  possibly  the  brokers  might  have  power  to  decide 
that  the  contract  was  off,  and  the  buyer  not  bound  to  accept ;  but  they 
certainly  were  not  bound  so  to  decide.  It  seems  to  me  clear  that  they 
had  power  to  reduce  the  prices  to  be  paid  ;  that  they  have  done  in  effect, 
though  they  call  it  an  allowance.  Rule  refused.1 


AZEMAR  v.  CASELLA. 
In  the  Common  Pleas,  February  9,  1867. 

[Reported  in  Law  Reports,  2  Common  Pleas,  431.] 

Action  for  refusal  to  accept  128  bales  of  cotton  and  for  refusal  to 
submit  to  arbitration. 

The  defendants,  through  brokers,  bought  of  the  plaintiff  "the  fol- 
lowing cotton,  viz.,  -jp  128  bales,  at  25c?.  per  lb.,  expected  to  arrive  in 
London  per  'Cheviot'  from  Madras.  The  cotton  guaranteed  equal  to 
sealed  sample  in  our  (the  brokers')  possession.  Should  the  quality 
prove  inferior  to  the  guarantee,  a  fair  allowance  to  be  made."  The 
sample  was  of  "Long-staple  Salem"  cotton.  The  128  bales  marked 
5^  which  arrived  by  the  "Cheviot"  contained  "Western  Madras" 
cotton.  Upon  a  special  case,  it  was  stated  that  "the  cotton  was  there- 
fore not  in  accordance  with  the  sample  ;  that  Western  Madras  cotton 
is  interior  to  Long-staple  Salem,  and  requires  machinery  for  its  manu- 
facture different  to  that  which  is  used  for  Long-staple  Salem  ;  and  that 
the  market-price  of  Western  Madras  was  at  the  date  of  the  contract 
only  23c?.  per  lb."2 

Sir  G.  Honyman,  Q.  C.  (with  him  McLeod),  for  the  plaintiff. 

.1.  Brown,  Q.  C.  (with  him  Hawkins,  Q.  C,  and  Hannen),  for  the 
defendants. 

Willes,  J.  I  am  of  opinion  that  the  defendants  are  entitled  to  judg- 
ment. The  action  is  brought  upon  a  contract  for  the  purchase  of  cotton 
to  arrive  bj'  the  "Cheviot,"  from  Madras,  and  guaranteed  equal  to 
sealed  sample  in  the  possession  of  the  seller's  brokers.  Upon  the 
arrival  of  the  cotton,  it  was  rejected  bj'  the  purchaser,  on  the  ground 
that  it  was  not  in  accordance  with  the  sample  referred  to  in  the  contract ; 

1  A  statement  of  the  pleadings  is  omitted.  Cockburn,  C.  J.,  and  Shee  and  Lush, 
.J. J.,  delivered  concurring  opinions. 

-  At  the  trial  a  verdict  was  found  for  the  plaintiff  subject  to  a  special  case  setting 
forth  these  facts  at  greater  Length.  The  court  was  given  liberty  to  draw  inferences 
of  fact  in  the  same  way  as  a  jury  would  be  entitled  to  do. 


SECT.  III.]  AZEMAR   V.    CASELLA.  C81 

and  an  arbitration  was  suggested  by  the  seller,  to  be  limited  to  the 
question  whether  the  quality  equalled  the  sample;  but  the  defendants 
insisted  that  there  was  another  question  to  be  determined,  viz.,  whether 
the  cotton  tendered  was  the  thing  bought  by  them;  and  consequently 
the  attempt  to  arbitrate  failed.  It  is  obvious  to  my  mind  that  the 
defendants  are  not  answerable  for  the  failure  of  the  arbitration  ;  and 
indeed  it  was  not  insisted  for  the  plaintiff  that  there  could  be  any 
recovery  for  the  second  breach.  The  defendants  clearly  were  not  bound 
to  refer  less  than  the  whole  dispute.  The  sole  question  to  be  decided 
is,  whether  the  defendants  were  right  in  their  ground  of  rejection,  viz., 
that  the  128  bales  by  the  "Cheviot"  were  not  the  cotton  they  contracted 
to  receive  and  to  pay  for.  Whether  they  were  right  in  that  contention,  or 
the  plaintiff  right  in  saying  that  the  defendants  were  bound  to  receive 
that  cotton  subject  to  an  allowance  for  any  inferiority  of  qualit.y,  must 
depend  upon  the  terms  of  the  contract  itself.  That  was  a  contract  by 
which  Messrs.  Barber,  acting  as  brokers  for  both  parties,  bought  for 
the  defendants  of  the  plaintiff  128  bales  of  cotton,  marked  -~  -,  expected 
to  arrive  in  London  per  "Cheviot"  from  Madras,  at  2.jr/.  per  lb.  If  it 
had  stopped  there,  it  would  have  been,  as  was  insisted  by  Sir  George 
Ilonvman.  a  bargain  for  the  purchase  of  128  bales  of  cotton  arriving 
with  a  particular  mark  m  London  from  Madras.  The  description  would 
extend  to  cotton  generally  coming  so  marked  from  Madras  on  board 
the  ship  named.  The  contract,  however,  goes  on,  "The  cotton  guaran- 
teed equal  to  sealed  sample  in  our  possession."  There  wre  have  for  the 
first  time  a  complete  description  of  what  the  parties  are  bargaining 
about.  Messrs.  Barber,  the  brokers  who  signed  for  both  sides,  had  m 
their  hands  a  sample  with  reference  to  which  the  bargain  was  made. 
That,  when  looked  at,  turns  out  to  be  a  sample  of  "Long-staple  Salem 
cotton,"  and  we  must  therefore  take  it  that  the  defendants  bargained 
for  "Long-staple  Salem  cotton."  Then  come  the  words:  "Should  the 
quality  prove  inferior  to  the- guarantee,  a  fair  allowance  to  be  made." 
The  subsequent  parts  of  the  contract  are  clear  to  show  that  the  property 
in  the  cotton  was  not  meant  to  vest  in  the  buyers  by  the  bargain  alone. 
If  it  had  been  otherwise,  there  would  have  been  considerable  plausibility 
in  the  argument  of  Sir  George  Horn-man,  that,  this  being  a  sale  of 
specific  cotton,  the  property  passed,  and  the  defendants  would  have  to 
resort  to  a  cross-action  in  respect  of  an}-  breach  of  the  collateral  war- 
ranty. It  seems  to  me,  however,  that  the  contrary  construction  is  the 
correct  one.  and  that  the  property  in  the  cotton  did  not  pass  by  the 
contract.  There  was  no  delivery  and  no  acceptance.  The  only  ques- 
tions, therefore,  which  we  have  now  to  consider  are,  first,  whether  the 
description  "equal  to  sealed  sample  in  our  possession."  refers  to  the 
species  of  cotton  to  which  the  sample  belonged,  and  whether  the  cotton 
which  arrived  by  the  "Cheviot"  answered  that  description  ;  and.  if  so, 
secondly,  it  would  be  necessary  to  refer  to  the  subsequent  clause  in  the 
contract,  to  see  how  far  it  affected  the  question  whether  species  was  in 
the  contemplation  of  the  parties  ;  and,  lastly,  we  have  to  make  up  our 


682  A2EMA11   V.  'CASELLA.  [CHAP.  V. 

minds  on  the  construction  of  the  contract,  regard  being  had  to  the  facts 
of  the  case,  and  particularly  to  those  stated  in  the  eighth  paragraph. 

First,  as  to  the  question  whether  the  contract  was  for  cotton  of  a  par- 
ticular species,  I  cannot  entertain  a  moment's  doubt.  I  exclude  the 
words  "Should  the  quality  prove  inferior  to  the  guarantee,"  because 
they  refer  to  an  allowance  to  be  made  in  money  in  respect  of  the  article 
being  of  less  value  than  that  represented  by  the  sample.  In  terms  they 
do  not  extend  to  enforce  on  the  buyers  the  acceptance  of  an  article 
different  from  that  which  they  bought.  I  would  add  that  I  am  not  led 
to  this  conclusion  by  an}'  supposed  similarity  between  a  case  of  this 
sort  and  the  cases  as  to  the  purchase  of  lands  ;  for,  in  truth,  those 
cases  have  very  little  bearing  upon  the  question  ;  but  I  found  my  judg- 
ment upon  this,  apart  from  all  the  authorities,  that  the  stipulation  as  to 
allowance  being  made  for  inferiority  of  quality  does  not  relate  to  a  dif- 
ference in  kind,  affecting  the  identity  of  the  article  itself.  That  being 
so,  let  us  see  whether  the  contract  was  for  the  purchase  of  a  specific 
sort  of  cotton,  or  applies  to  cotton  in  general.  That  depends  upon  the 
language  of  the  guarantee  clause,  "The  cotton  guaranteed  equal  to 
sealed  sample  in  our  possession,"  which  is  to  be  construed  by  the  facts 
existing  at  the  time  of  the  bargain,  and  by  the  surrounding  circum- 
stances so  far  as  the}'  are  relevant  to  the  dealings  of  the  parties.  Now, 
the  first  remarkable  fact  is  the  description  of  the  sample  itself;  it  was 
a  sort  of  cotton  well  known,  called  Long-staple  Salem  cotton,  which 
might  have  been  expected  to  be  shipped  from  Madras.  What  did  the 
bulk  consist  of?  and  was  it  "Long-staple  Salem  cotton,"  or  was  it  a 
thing  of  the  same  species  as  Long-staple  Salem  cotton,  so  that  the  par- 
ties must  be  taken  to  have  intended  that  it  should  be  taken  in  satis- 
faction of  the  contract?  Now,  as  to  this  the  case  (par.  8)  finds  that 
"the  cotton  was  not  Long-staple  Salem,  but  was  a  particularly  good 
sample  of  Western  Madras  ;  the  cotton,  therefore,  was  not  in  accord- 
ance with  the  sample."  Was  that  a  mere  difference  in  Value  which 
could  be  compensated  for  under  the  allowance  clause?  or  was  it  an 
essential  difference  in  the  species,  so  that  the  contract  was  for  one 
thing,  and  the  article  tendered  another?  That  seems  to  me  to  be  de- 
termined by  what  follows  in  the  case:  "Western  Madras  cotton  is  infe- 
rior to  Long-staple  Salem,  and  requires  machinery  for  its  manufacture 
different  to  that  which  is  used  for  Long-staple  Salem  ;  and  the  market- 
price  of  Western  Madras  was  at  the  date  of  the  contract  only  23d.  per 
lit."  Inferiority  of  quality  and  value  might  be  compensated  for  by  an 
allowance  ;  but  the  question  is  whether  difference  of  kind  or  species 
may  be.  I  must  own  that  it  would  have  been  more  satisfactory  to  my 
mind  to  have  had  these  questions  disposed  of  by  the  verdict  of  a  jury. 
In  determining  the  question,  it  is  impossible  to  exclude  from  one's 
mind  the  fact  that,  when  a  man  bargains  for  Long-staple  Salem  cotton, 
and  the  seller  offers  him  cotton  of  a  totally  different  kind,  and  cotton 
which  requires  a  different  description  of  machinery  for  its  manufacture, 
he  is  seeking  to  compel  him  to  accept  X.  when  he  bargained  for  Y. 


SECT.  III.]  LYON   V.   BEKTHAM    ET   AL.  683 

The  conclusion  at  which,  upon  the  whole,  I  feel  myself  compelled  to 
come,  is,  that,  taking  the  contract  and  the  sample  together,  what  the 
defendants  agreed  to  buy  was  128  hales  of  the  species  of  cotton 
contained  in  the  sealed  sample.  The  allowance  was  to  be  in  respect  of 
inferiority  of  quality,  and  not  of  difference  of  kind  ;  and  the  defendants 
were  not  bound  to  accept  with  an  allowance  cotton  of  a  description  differ- 
ent from  that  which  they  bargained  for.  I  am  confirmed  in  this  view 
by  the  absence  of  any  statement  in  the  case  (which  has  evidently  been 
drawn  with  great  care)  that  the  cotton  in  question  was  not  such  as 
might  have  been  expected  to  be  produced  at  Salem.  It  would  no  doubt 
have  been  so  stated  if  it  could  have;  been.  Then,  taking  up  the  opposite 
phase  of  the  question,  I  find  that,  though  the  bulk  was  a  particularly 
good  sample  of  Western  Madras,  it  was  inferior  in  value  to  Long  staple 
Salem  by  2^d.  per  pound.  I  should  therefore  infer  that  Western  Madras 
did  not  come  within  the  description  of  the  cotton  which  was  contained 
in  the  sample;  and  I  come  to  the  conclusion  that  the  cotton  tendered 
to  the  defendants  was  not  that  which  they  contracted  to  buy,  and  con- 
sequently that  they  are  entitled  to  judgment. 

Judgment  accordingly} 


JOSEPH    H.    LYON    v.   JOHN    BERTRAM  and  Others. 
United  States  Supreme  Court,  December  Term,  1857. 

[Reported  in  20  Howard,  149.] 

Tins  case  was  brought  up,  by  writ  of  error,  from  the  Circuit  Court  of 
the  United  States  for  the  district  of  California. 

The  facts  are  particularly  stated  in  the  opinion  of  the  court. 

It  was  argued  by  Mr.  Brent  and  Mr.  Poe  for  the  plaintiff  in  error, 
and  Mr.  Fessenden  for  the  defendants. 

Mr.  Justice  Campbell  delivered  the  opinion  of  the  court. 

This  suit  was  commenced  by  the  defendants  in  error,  to  recover  the 
price  for  a  cargo  of  flour,  bargained  and  sold  to  the  plaintiff  in  error, 
in  the  city  of  San  Francisco.  The  judgment  of  the  Circuit  Court  was 
rendered  upon  a  special  verdict  in  favor  of  the  plaintiffs  in  that  court. 
The  verdict  finds  that  on  the  13th  January,  1853,  the  plaintiffs,  and 
Flint,  Peabody,  &  Co.,  were,  jointly,  the  owners  of  a  cargo  of  flour, 
consisting  of  two  thousand  barrels,  branded,  and  which  were  in  fact 
Gallego,  then  being  on  the  bark  "  Ork,"  lying  at  a  public  wharf  in  San 
Francisco,  and  composing  its  entire  cargo  of  flour,  which  inspected  1.771 
barrels  superfine,  and  2'2\)  bad. 

The  firm  of  Flint,  Peabody,  &  Co.,  as  agents  and  part-owners, 
on  the  day  aforesaid,  concluded  the  following  agreement  with  the 
defendant :  — 

1  The  statement  of  facta  lias  been  abbreviated  and  the  concurring  opinion  of 
Montague  Smith,  J.,  omitted.  Keating,  J.,  also  concurred.  The  decision  was 
affirmed  in  the  Exchequer  Chamber.     L.  R.  2  C.  P.  677. 


684  LYON    V.    BERTRAM    ET   AL.  [CHAP.  V. 

San  Francisco,  January  13,  1853. 
Sold  this  day  to  Joseph  H.  Lyon,  Esq.,  a  cargo  of  Haxall  Hour,  now 
on  board  the  bark  "  Ork,"  lying  in  this  harbor,  being  about  two  thou- 
sand barrels,  on  the  following  terms  and  conditions,  viz.  :  Joseph  H. 
Lyon,  Esq.,  agrees  to  pay  Messrs.  Flint,  Peabody,  &  Co.  thirty  dollars 
per  barrel  for  such  as  shall  inspect  superfine,  and  twenty-seven  dollars 
per  barrel  for  such  as  shall  inspect  bad  ;  payment  to  lie  made  as  it  may 
be  delivered,  and  to  be  received  and  paid  for  on  or  before  the  expira- 
tion of  three  weeks  from  date. 

If  Messrs.  Flint,  Peabody,  &  Co.  elect,  the}-  can  land  and  store  the 
flour  at  the  expiration  of  one  week,  or  so  much  as  may  remain  on  board 
at  that  time,  Mr.  Lyon  paying  storage  and  drayage  expenses. 

J.  II.  Lyon. 
Flint,  Peabody,  &  Co. 

On  the  25th  January,  1853,  the  defendant  applied  to  Flint,  Peabody, 
&  Co.  for  fifty  barrels  of  flour  so  purchased  by  him,  by  a  written  order, 
as  follows  :  — 

San  Francisco,  January  25,  1853. 

Messrs.  Flint,  Peabody,  &  Co.  will  please  deliver  Mr.  William  R. 
Gorham,  or  bearer,  fifty  barrels  of  flour,  out  of  the  lot  purchased  from 
the  ship  "Ork,"  and  oblige  J.  H.  Lyon. 

Paying  them  therefor  the  contract  price,  amounting  to  the  sum  of  $1,500, 
and  received  from  Flint,  Peabody,  &  Co.  the  following  order :  — 

San  Francisco,  January  25,  1853. 
Captain  of  Bark  "Ork,"  —  Please  deliver  the  bearer  fifty  barrels 
superfine  flour,  and  oblige  Flint,  Peabody,  &  Co. 

Fifty  barrels  of  Gallego  flour,  inspecting  superfine,  being  part  of 
said  cargo  of  flour  on  board  the  bark  "Ork,"  was  delivered  from  the 
bark  to  William  R.  Gorham,  a  baker,  to  whom  the  defendant  had  sold 
and  transferred  the  delivery  order  and  the  said  flour.  When  the  order 
was  made  for  William  R.  Gorham,  the  defendant  represented  that  the 
flour  was  Haxall.  On  the  29th  January,  1853,  the  defendant  sold  to 
Dunne  &  Co.  fifty  barrels  of  flour,  which  he  represented  to  be  Haxall, 
and  gave  the  following  order,  bearing  date  on  that  day  :  — 

Messrs.  Grey  &  Doane  will  please  deliver  Messrs.  Dunne  &  Co.  fifty 
barrels  of  Haxall  flour  from  "  Ork.''  J.  H.  Lyon. 

The  said  Dunne  &  Co.,  on  discovering  that  the  flour  was  not  Haxall, 
but  Gallego,  refused  to  take  it,  and  so  notified  the  defendant.  On  the 
31st  of  January,  1853,  the  defendant  made  further  application  for  one 
hundred  barrels  of  flour,  being  part  of  the  flour  so  purchased  as 
aforesaid,  and  gave  his  check  on  his  bankers  for  the  price,  and  re- 
ceived the  following  delivery  order  from  Flint,  Peabody,  &  Co.,  bearing 
that  date  :  — 


SECT.  III.]  LYON    V.    BERTRAM    ET    AL.  685 

Captain  IIutchings,  Bark  "  Ork,"  — Please  deliver  to  J.  II.  Lyon,  or 
to  the  order  of  Grey  &  Doane,  one  hundred  barrels  superfine  flour,  and 
oblige,  &c. 

The  check  was  not  paid  on  presentation.  Upon  the  refusal  of 
Dunne  &  Co.  to  take  the  flour,  the  defendant,  on  learning  the  fact, 
notified  the  plaintiffs  that  he  would  not  take  the  flour,  and  counter- 
manded  the  payment  of  the  check  he  had  given  for  the  one  hundred 
barrels  last  mentioned. 

On  the  3d  of  February,  1853,  the  plaintiffs  informed  the  defendant 
that  they  were  prepared  to  deliver  the  remainder  of  the  cargo,  and  re- 
quested the  defendant  to  receive  it.  And  subsequently,  on  the  same 
day,  they  addressed  him  a  note,  in  which  they  advised  him  they  would 
sell  the  flour  on  the  5th  February,  at  public  auction,  for  his  account, 
and  would  hold  him  responsible  for  the  difference  there  might  be  in  the 
net  proceeds  of  the  proposed  sale  and  the  contract  price,  and  for 
charges  and  expenses,  he  (Lyon)  having  declined  to  take  the  flour  un- 
der the  contract.  All  the  flour  on  the  bark  was  of  the  brand  known  as 
Gallego,  and  the  barrels  were  branded  Gallego  in  printed  characters 
from  two  to  two  and  one-half  inches  in  length,  on  both  heads.  In 
the  opinion  of  some  experts,  there  existed  no  difference  in  the  qual- 
ity or  price  of  the  flour  of  either  brand  (Ilaxall  and  Gallego),  each 
inspecting  superfine  ;  but,  in  the  opinion  of  other  experts,  there  was  a 
difference,  some  preferring  the  one  brand  and  some  the  other. 

Subsequently  to  the  sale,  and  up  to  and  including  the  28th  January, 
1853.  Gallego  and  Ilaxall  flour  had  advanced  to  S35  per  barrel  in  San 
Francisco  ;  and  between  that  and  the  5th  of  February  the  price  of  both 
declined  to  $18  per  barrel.  On  the  5th  of  February  the  plaintiffs 
caused  the  remainder  of  the  cargo  to  be  sold  at  public  auction,  accord- 
ing to  their  notice  to  the  defendant,  for  his  account,  and  at  a  great  re- 
duction of  price.  The  verdict  does  not  find  any  fact  to  impugn  the 
fairness  of  this  sale.  Before  this  suit  was  commenced,  Flint,  Peabody, 
&  Co.  assigned  their  interest  in  this  suit  to  the  plaintiff's,  of  which  the 
defendant  had  notice. 

The  verdict  is  silent  in  reference  to  the  negotiations  that  preceded  the 
contract,  and  does  not  inform  us  whether  the  cargo  was  at  any  time 
visible  to  the  defendant ;  nor  does  it  discriminate  with  exactness  the 
qualities  of  Ilaxall  and  Gallego  flour,  or  affirm  that  there  is  any  specific 
difference  between  them. 

It  is  evident,  from  the  verdict,  that  the  error  in  the  description  of 
the  cargo  did  not  bear  on  the  substance,  or  on  any  substantial  quality 
of  the  subject  of  the  sale.  The  subject  of  the  sale  was  a  cargo  of  flour 
of  about  two  thousand  barrels,  on  board  of  a  vessel  lying  at  a  wharf  in 
the  city;  of  a  quality  to  be  ascertained  by  an  inspection:  and  from 
that  inspection,  and  not  from  the  brand,  the  price  was  to  be  ascer- 
tained. The  brands  Ilaxall  and  Gallego  are  understood  to  refer  to 
different  mills  in  Richmond,  Virginia,  at  which  flour  is  manufactured. 


686  LYON   V.   BERTRAM   ET   AL.  [CHAP.  V. 

The  verdict  sufficiently  determines  that  the  difference  between  them  in 
the  market  of  San  Francisco  is  inappreciable,  at  least  b}T  the  mass  of 
purchasers  and  consumers.  The  case  clearly  does  not  belong  to  that 
(.lass  in  which  the  subject-matter  of  the  contract  was  of  a  nature  wholly 
different  from  that  concerning  which  the  parties  to  the  contract  made 
their  engagements.  The  brand  on  the  exterior  of  the  barrels  of  flour 
was  certainly  not  of  the  substance  of  the  contract.  Young  v.  Cole, 
3  Bing.  N.  C.  724;  Gompertz  v.  Bartlett,  2  Ell.  and  B.,  19  Vt. 
R.  202. 

The  defendant  does  not  resist  the  fulfilment  of  his  agreement  for 
any  fraud;  nor  does  the  verdict  impute  any  mala  Jides  to  the 
plaintiffs. 

The  case  rests  upon  these  facts.  There  was  a  sale  of  a  cargo  of 
flour,  at  a  price  dependent  upon  the  fact  whether  the  component  parts 
inspected  superfine  or  bad,  which  was  described  as  of  one  brand,  but 
which  proved  to  be  of  another.  There  was  no  material  difference  in 
the  credit  of  the  brands,  and  the  market  price  of  the  flour  was  but 
little  affected  by  the  question  whether  the  brand  was  of  the  one  or 
the  other  mill. 

A  portion  of  the  flour  has  been  delivered  to,  and  paid  for,  and  con- 
sumed by,  the  defendant.  He  made  no  offer  to  return  this  flour. 
This  flour  remained  in  the  "  Ork  "  from  the  13th  of  January  till  the 
31st  of  January,  subject  to  the  exigencies  of  the  contract.  During  that 
period  there  was  no  complaint  on  the  part  of  the  defendant.  From  the 
28th  of  Januar}'  till  the  oth  of  February,  when  the  refusal  to  accept  the 
remainder  of  the  flour  and  the  sale  of  it  on  account  took  place,  the  price 
of  flour  was  steadily  declining. 

It  may  be  admitted  that  the  description  of  the  flour  as  Haxall 
imported  a  warranty  that  it  was  manufactured  at  mills  which  used 
that  brand ;  and  that  the  purchaser  would  have  been  entitled  to 
recover  the  amount  of  difference  in  the  value  of  that  and  an  inferior 
brand.  Powell  v.  Horton,  2  Bing.  N.  C.  668 ;  Henshaw  v.  Robbius, 
9  Met.  83. 

But  it  cannot  be  admitted  that  the  purchaser  was  entitled  to  abandon 
this  contract. 

In  the  note  to  Cutter  v.  Powell,  in  Smith's  Leading  Cases,  the 
annotator  says:  "  It  is  settled,  by  Street  v.  Blay  and  Poulton  v.  Lat- 
timore,  where  an  article  is  warranted,  and  the  warranty  is  not  complied 
with,  the  vendee  has  three  courses,  an}r  one  of  which  he  may  pursue. 
1.  He  may  refuse  to  receive  the  article  at  all.  2.  He  may  receive  it, 
and  bring  a  cross-action  for  the  breach  of  the  warranty.  3.  He  may, 
without  bringing  a  cross-action,  use  the  breach  of  warranty  in  reduc- 
tion of  damages  in  an  action  brought  by  the  vendor  for  the  price." 
The  annotator  proceeds  to  say,  "  that  it  was  once  thought,  and,  indeed, 
laid  down  by  Lord  Eldon,  in  Curtis  v.  Hanney,  3  Esp.  83,  that  he 
might,  on  discovering  the  breach  of  warranty,  rescind  the  contract, 
return  the  chattel,  and,  if  he  had  paid  the  price,  recover  it  back.     This 


SECT.  III.]  LYON   V.    BEKTBAM   ET   AL.  687 

doctrine,  which  was  opposed  to  Weston  v.  Downes,  Doug.  23,  is  over- 
ruled by  Street  v.  Blay,  2  B.  and  Adol.,  and  Gompertz  v.  Denton, 
1  C.  and  Mee.  205;  and  it  is  clear  that,  though  the  non-compliance 
with  the  warranty  will  justify  him  in  refusing  to  receive  the  chattel, 
it  will  not  justify  him  in  returning  it,  and  suing  to  recover  back  the 
price." 

The  second  and  third  propositions  of  this  learned  author  are  indis- 
putable, and  have  received  the  sanction  of  this  court.  Thornton  v. 
Wynn,  12  Wheat.  183,  as  modified  by  Withers  v.  Greene,  9  How. 
S.  C.  R.  213. x  The  first  proposition,  concerning  the  right  of  the  pur- 
chaser to  reject  the  article  because  it  varies  from  the  warranty,  is  an 
open  question.  In  Dawson  v.  Collins,  10  C.  B.  K.  527  (70  E.  C.  L.  K.) 
the  judges  dissent  from  it.  The  Chief  Justice  expressed  his  favor  for 
the  conclusion,  "that" the  buyer  has  no  right  to  repudiate  the  article," 
because  it  did  not  correspond  to  the  warranty  ;  and  Cresswell.  Justice, 
said,  "  Where  the  sale  is  of  an  individual  and  specific  thing,  the  vendee 
can  only  defend  himself,  altogether,  against  an  action  for  not  accepting 
it,  if  the  thing  be  utterly  worthless,  as  in  Poulton  and  Lattimore  ;  or,  in 
part,  by  giving  the  breach  of  warranty  in  evidence  in  reduction  of  dam- 
ages." And  this  corresponds  with  the  conclusions  of  this  court  in  the 
case  of  Thornton  v.  Wynn,  12  Wheat.  183,  where  very  similar  language 
is  used. 

But  while  the  first  proposition  of  the  note  in  the  Leading  Cases  is  a 
matter  of  dispute,  there  is  none  in  respect  to  the  conclusion  that  the 
purchaser  who  has  received  and  used  the  article,  and  derived  a  benefit 
from  it,  cannot  then  rescind  the  contract.  This  principle  is  stated  in 
Hunt  v.  Silk,  5  East,  449,  in  which  Lord  Ellenborough  says  :  "  Where 
a  contract  is  to  be  rescinded  at  all,  it  must  be  rescinded  in  toto,  and 
the  parties  put  in  statu  quo."     And,  "  if  the  plaintiff  might  occupy  the 

1  In  Thornton  v.  Wynn,  12  Wheat.  183,  193,  the  conrt  say :  "  If,  upon  a  sale  with 
a  warranty,  or  if,  by  the  special  terms  of  the  contract,  the  vendee  is  at  liberty  to  return 
the  article"  sold,  an  offer  to  return  it  Is  equivalent  to  an  offer  accepted  by  the  vendor, 
and,  in  that  case,  the  contract  is  rescinded  and  at  an  end,  which  is  a  sufficient  defence 
to  an  action  brought  by  the  vendor  for  the  purchase  money,  or  to  enable  the  vendee 
to  maintain  an  action  for  money  had  and  received  in  case  the  purchase  money  has 
been  paid.  The  consequences  are  the  same  where  the  sale  is  absolute,  and  the  vendor 
afterwards  consents,  unconditionally,  to  take  back  the  property;  because,  in  both,  the 
contract  is  rescinded  by  the  agreement  of  the  parties,  and  the  vendee  is  well  entitled 
to  retain  the  purchase  money  in  the  one  case,  or  to  recover  it  back  in  the  other.  But 
if  the  sale  be  absolute,  and  there  be  no  subsequent  agreement  or  consent  of  the  vendor 
to  take  back  the  article,  the  contract  remains  open,  and  the  vendee  is  put  to  his  action 
upon  the  warranty,  unless  it  be  proved  that  the  vendor  knew  of  the  unsoundness  of  the 
article,  and  the  vendee  tendered  a  return  of  it  within  a  reasonable  time." 

In  Withers  r.  Greene,  9  How.  213,  227,  the  court  quote  with  approval  from  the  de- 
cision of  the  Supreme  Court  of  Alabama  in  Pedes  v.  Moore.  1  Stewart  &  Porter,  71, 
the  following  statement:  "  We  are  of  opinion  that  wherever  a  defendant  can  maintain 
a  cross-action  for  damages  on  account  of  a  defect  in  personal  property  purchased  by 
him,  or  of  a  non-compliance  by  the  plaintiff  with  his  part  of  the  contract,  he  may,  in 
defence  to  an  action  upon  his  note  made  in  consequence  of  such  purchase  or  contract, 
claim  a  deduction  corresponding  with  the  injury  he  has  sustained." 


G88  LYON   V.    BERTRAM    ET   AL.  [CHAP.  V. 

premises  two  days  beyond  the  time  when  the  repairs  were  to  have  been 
done  and  the  lease  executed,  and  \et  rescind  the  contract,  why  might 
he  not  rescind  it  after  a  twelvemonth  on  the  same  account  ?  This  ob- 
jection cannot  be  gotten  rid  of.  The  parties  cannot  be  put  in  statu 
quo."  In  Perley  v.  Baleh,  23  Pick.,  the  same  principle  is  applied  to 
contracts  of  sale  of  chattels.  The  court  sa}' :  "  The  purchaser  cannot 
rescind  the  contract,  and  yet  retain  any  portion  of  the  consideration. 
The  only  exception  is,  where  the  property  is  entirely  worthless  to  both 
parties.  The  purchasers  cannot  derive  any  benefit  from  the  purchase, 
and  yet  rescind  the  contract.  It  must  be  nullified  in  toto  or  not  at  all.  It 
cannot  be  rescinded  in  part  and  enforced  in  part."  In  Burnett  v.  Stanton, 
2  Ala.  R.  183,  the  court  say  :  "A  contract  cannot  be  rescinded  without 
mutual  consent,  when  circumstances  have  been  so  altered  by  a  part  execu- 
tion that  the  parties  cannot  be  put  in  statu  quo  ;'  for  if  it  be  rescinded 
at  all,  it  must  be  rescinded  in  toto.'''  To  the  same  effect  is  Christy  v. 
Cummins,  3  McLean,  R.  386  ;  2  Hill,  N.  Y.  R.  288,  per  C.  J.  Nelson  ; 
Kase  /'.  John,  10  Watts,  107.  In  Thornton  v.  Wynn,  supra,  this  court 
say:  ''That  if  the  sale  of  a  chattel  be  absolute,  and  there  be  no 
subsequent  agreement  or  consent  of  the  vendor  to  take  back  the 
article,  the  contract  remains  open,  and  the  vendee  is  put  to  his  ac- 
tion upon  the  warranty,  unless  it  be  proved  that  the  vendor  knew  of 
the  unsoundness  of  the  article,  and  the  vendee  tendered  a  return  in  a 
reasonable  time." 

If  the  verdict  had  found  that  the  defendant  had  sustained  any  dam- 
age from  the  difference  in  the  brands  on  the  flour,  the  price  would  have 
been  diminished  accordingly  ;  and  so  the  defendant  might  have  been 
indemnified  upon  an  action  commenced  by  himself,  alleging  a  breach 
of  the  contract.  But,  without  considering  whether  he  could  refuse 
to  accept  any  portion  of  the  flour  for  the  variance  from  the  letter  of 
his  contract,  we  decide  that  he  lost  this  power  when  he  applied  to 
have,  paid  for,  and  sold  the  parcels,  on  the  25th  and  31st  of  January, 
1853. 

The  defendant  pleaded  that  the  several  causes  of  action  in  the  com- 
plaint mentioned  did  not  accrue  within  two  years  before  the  commence- 
ment of  the  suit.  The  code  of  California  provides,  that  "  an  action 
upon  any  contract,  obligation,  or  liability,  founded  upon  an  instrument 
of  writing,  except  those  mentioned  in  a  preceding  section,  shall  be 
brought  within  three  years,  and  within  two  years  if  founded  upon  a 
contract,  obligation,  or  liability,  not  in  writing,  except  in  actions  on  an 
open  account,  for  goods,  wares,  and  merchandises,  and  for  any  article 
charged  in  a  store  account."  The  plea  of  the  defendant  does  not  allege 
that  the  cause  of  action  is  founded  upon  a  contract,  obligation,  or 
liability,  not  in  writing,  nor  show  that  it  falls  within  the  limitation  of 
two  years,  as  pleaded.  The  complaint  is  framed  so  as  to  admit  evi- 
dence of  a  contract  in  writing  quite  as  well  as  an  oral  contract,  and  the 
evidence  shows  this  action  is  founded  on  a  written  contract.  The  plea 
should  have  contained  an  averment  that  the  cause  of  action  was  not  in 


SECT.  III.]  POPE   V.    ALLIS.  6S9 

writing,  with  such  other  averments  as  to  show  that  the  bar  of  the  statute 
pleaded  was  applicable. 

A  plea  cannot  be  sustained,  which  rests  for  its  validity  upon  a  sup- 
posed state  of  facts  which  may  not  exist.  The  plea  must  be  an  answer 
to  any  case  which  may  be  legally  established  under  the  declaration. 
Winston  v.  The  Trustees'  University,  &c,  1  Ala.  R.  124. 

It  was  objected  that  the  proof  shows  that  the  assignment  by  Flint, 
Feabody,  &  Co.,  was  made  to  the  plaintiffs  in  the  suit,  and  that  the 
declaration  alleges  that  they  assigned  their  interest  in  the  claim  to  John 
Bertram,  one  of  the  plaintiffs.  The  code  of  California  requires  that 
actions  shall  be  prosecuted  in  the  name  of  the  real  party  in  interest,  and 
that  all  parties  having  an  interest  in  the  subject  of  the  action,  and  in 
obtaining  the  relief  demanded,  may  be  joined  as  plaintiffs.  The  plain- 
tiffs are  shown  to  be  the  parties  jointly  interested  in  the  subject  of  the 
action,  and  in  the  claim  for  relief.  It  is  quite  immaterial  in  what  pro- 
portions they  may  be  concerned.  Their  case  is  substantially  estab- 
lished, when  their  joint  interest  is  shown,  and  the  error  in  respect  to 
the  degree  of  the  interest  of  the  several  parties  is  not  such  a  variance 
as  will  be  considered.  Judgment  affirmed. 


POPE    &   Another   v.    ALLIS. 
United  States  Supreme  Court,  October  29  —  November  9,  1885. 

[Reported  in  115  United  States,  363] 

Edward  P.  Allis,  the  defendant  in  error,  was  the  plaintiff  in  the 
Circuit  Court.  He  brought  his  suit  to  recover  from  the  defendants, 
Thomas  J.  Pope  and  James  PI  Pope,  now  the  plaintiffs  in  error,  the 
sum  of  Si 7,840,  the  price  of  five  hundred  tons  of  pig  iron,  which  he 
alleged  he  had  bought  from  them  and  paid  for,  but  which  he  refused 
to  accept  because  it  was  not  of  the  quality  which  the  defendants  had 
agreed  to  furnish.  The  plaintiff  also  demanded  81,750,  freight  on  the 
iron,  which  he  alleged  he  had  paid. 

The  facts  appearing  upon  the  record  were  as  follows  :  The  plaintiff 
carried  on  the  business  of  an  iron-founder  in  Milwaukee,  'Wisconsin, 
and  the  defendants  were  brokers  in  iron  in  the  city  of  New  York.  In 
the  month  of  January,  1880,  by  correspondence  carried  on  by  mail  and 
telegraph,  the  defendants  agreed  to  sell  and  deliver  to  the  plaintiff  five 
hundred  tons  of  No.  1  extra  American  and  three  hundred  tons  No.  1 
extra  Glengarnock  (Scotch)  pig  iron.  The  American  iron  was  to 
delivered  on  the  cars  at  the  furnace  bank  at  Coplay.  Pennsylvania,  and 
the  Scotch  at  the  yard  of  the  defendants  in  New  York.  By  a  sul  (Se- 
quent correspondence  between  the  plaintiff  and  the  defendants  it  fairly 
appeared  that  the  latter  agreed  to  ship  the  iron  for  the  plaintiff  at  Eliza- 
bethport.  New  Jersey.  It  was  to  be  shipped  as  early  in  the  spring  as 
cheap  freights  could  he  had,  consigned  to  the  National  Exchange  Bank 

it 


G90  POPE    V.    ALLIS.  [CHAP.  V. 

at  Milwaukee,  which  in  behalf  of  the  plaintiff,  agreed  to  pay  for  the 
iron  on  receipt  of  the  bills  of  lading.  That  quantity  of  American  iron 
was  landed  at  Milwaukee  and  delivered  to  the  plaintiff  about  July  15. 
Before  its  arrival  at  Milwaukee  the  plaintiff  had  not  only  paid  for  the 
iron  but  also  the  freight  from  Coplay  to  Milwaukee.  Soon  after  the 
arrival  in  Milwaukee  the  plaintiff  examined  the  500  tons  American 
iron  to  which  solely  the  controversy  in  this  case  referred,  and  refused 
to  accept  it  on  the  ground  that  it  was  not  of  the  grade  called  for  by  the 
;  act,  and  at  once  gave  the  defendants  notice  of  the  fact,  and  that  he 
held  the  iron  subject  to  their  order,  and  brought  this  suit  to  recover  the 
price  of  the  iron  and  the  freight  thereon. 

The  defences  relied  on  to  defeat  the  action  were  (1)  that  the  iron 
delivered  by  the  defendants  to  the  plaintiff  was  No.  1  extra  American 
iron,  and  was  of  the  kind  and  quality  required  by  the  contract :  and  (2) 
that  the  title  having  passed  to  the  plaintiff  when  the  iron  was  shipped 
to  him  at  Elizabethport,  he  could  not  afterwards  rescind  the  contract 
and  sue  for  the  price  of  the  iron  and  the  freight  which  he  had  paid,  but 
must  sue  for  a  breach  of  the  warranty. 

It  was  conceded  upon  the  trial  that,  if  the  plaintiff  was  entitled  to 
recover  at  all,  his  recovery  should  be  for  822,3 15.40.  The  defendants 
pleaded  a  counter-claim  for  $5,311,  which  was  admitted  by  the  plaintiff. 
The  jury  returned  a  verdict  for  the  plaintiff  for  $1&,513.11,  for  which 
sum  and  costs  the  court  rendered  a  judgment  against  the  defendants. 
This  writ  of  error  brought  that  judgment  under  review. 

Mr.  George  P.  Miller,  for  plaintiffs  in  error  (Mr.  William  P. 
Lynde  also  filed  a  brief  for  same). 

Mr.  Eppa  Hunton  (Mr.  J.  O.  Jenkins  also  filed  a  brief),  for  de- 
fends nt  in  error. 

Mr.  Justice  Woods  delivered  the  opinion  of  the  court. 
4.  The  assignment  of  error  mainly  relied  on  by  the  plaintiffs  in  error 
is  that  the  court  refused  to  instruct  the  jury  to  return  a  verdict  for  the 
defendants.  The  legal  proposition  upon  which  their  counsel  based  this 
request  was,  that  the  purchaser  of  personal  property,  upon  breach  of 
warranty  of  quality,  cannot,  in  the  absence  of  fraud,  rescind  the  con- 
tract  of  purchase  and  sale  and  sue  for  the  recovery  of  the  price.  And 
they  contended  that,  as  the  iron  was  delivered  to  defendant  in  error 
either  at  Coplay  or  Elizabethport,  and  the  sale  was  completed  thereby, 
the  only  remedy  of  the  defendant  in  error  was  by  a  suit  upon  the 
warrant}'. 

It,  did  not  appear  that  at  the  date  of  the  contract  the  iron  had  been 
manufactured,  and  it  was  shown  by  the  record  that  no  particular  iron 
was  segregated  and  appropriated  to  the  contract  by  the  plaint  ill's 
in  error  until  a  short  time  before  its  shipment,  in  the  latter  part  of 
April  and  the  early  part  of  May.  The  defendant  in  error  had  no 
opportunity  to  inspect  it  until  it  arrived  in  Milwaukee,  and  conse- 
quently never  accepted  the  particular  iron  appropriated  to  fill  the 
contract.     It  was  established  by  the  verdict  of  the  jury  that  the  iron 


SECT.  III.]  POPE    V.    ALUS.  691 

shipped  was  not  of  the  quality  required  by  the  contract.  Under  these 
circumstances  the  contention  of  the  plaintiffs  in  error  is,  that  the  de- 
fendant in  error,  although  the  iron  shipped  to  him  was  not  what  he 
bought,  and  could  not  be  used  in  his  business,  was  bound  to  keep  it, 
and  could  only  recover  the  difference  in  value  between  the  iron  for 
which  he  contracted  and  the  iron  which  was  delivered  to  him. 

We  do  not  think  that  such  is  the  law.  When  the  subject-matter  of 
a  sale  is  not  in  existence,  or  not  ascertained  at  the  time  of  the  contract, 
an  undertaking  that  it  shall,  when  existing  or  ascertained,  possess 
certain  qualities,  is  not  a  mere  warranty,  but  a  condition,  the  perform- 
ance of  which  is  precedent  to  any  obligation  upon  the  vendee  under 
the  contract;  because  the  existence  of  those  qualities  being  pail  of 
the  description  of  the  thing  sold  becomes  essential  to  its  identity,  and 
the  vendee  cannot  lie  obliged  to  receive  and  pay  for  a  thing  different 
from  that  for  which  he  contracted.  Chanter  v.  Hopkins,  4  M.  &  W. 
399,  404;  Barr  v.  Gibson,  3  M.  &  W.  390;  Gompertz  v.  Bartlett,  2 
El.  &  Bl.  849  ;  Okell  v.  Smith,  1  Stark.  N.  P.  86  ;  Notes  to  Cutter  v. 
Powell,  2  Smith's  Leading  Cases,  37,  7th  Am.  ed. ;  Woodle  v.  Whitney, 
23  Wise.  55  ;  Boothby  v.  Scales,  27  Wise.  G2G  ;  Fairfield  v.  Madison 
Man.  Co.,  38  Wise.  346.     See  also  Nichol  v.  Godts.  10  Exch.  191. 

So,  in  a  recent  case  decided  by  this  court,  it  was  said  by  Mr.  Justice 
Gray:  "A  statement"  in  a  mercantile  contract  "descriptive  of  the 
subject-matter  or  of  some  material  incident,  such  as  the  time  or  place 
of  shipment,  is  ordinarily  to  be  regarded  as  a  warranty  in  the  sense  in 
which  that  term  is  used  in  insurance  and  maritime  law,  that  is  to  say,  a 
condition  precedent  upon  the  failure  or  non-performance  of  which  the 
party  aggrieved  may  repudiate  the  whole  contract."  Norrington  v. 
Wright,  115  U.  S.  18$.     See  also  Filler  v.  Pope,  115  U.  S.  213. 

And  so,  when  a  contract  for  the  sale  of  goods  is  made  by  sample,  it 
amounts  to  an  undertaking  on  the  part  of  the  seller  with  the  buyer 
that  all  the  goods  are  similar,  both  in  nature  and  quality,  to  those  ex- 
hibited, and  if  they  do  not  correspond  the  buyer  may  refuse  to  receive 
them,  or  if  received,  he  may  return  them  in  a  reasonable  time  allowed 
for  examination,  and  thus  rescind  the  contract.  Lorymer  /•.  Smith.  1  B. 
&  C  1  ;  Magee  v.  Billingsley,  3  Ala.  679. 

The  authorities  cited  sustain  this  proposition,  that  when  a  vendor 
sells  goods  of  a  specified  quality,  but  not  in  existence  or  ascertained, 
and  undertakes  to  ship  them  to  a  distant  buyer  when  made  or  ascer- 
tained, and  delivers  them  to  the  carrier  for  the  purchaser,  the  latter  is 
not  bound  to  accept  them  without  examination.  The  mere  delivery  of 
the  goods  by  the  vendor  to  the  carrier  does  not  necessarily  bind  the 
vendee  to  accept  them.  On  their  arrival  he  has  the  right  to  inspect 
them  to  ascertain  whether  they  conform  to  the  contract,  and  the  light 
to  inspect  implies  the  right  to  reject  them  if  they  are  not  of  the  quality 
required  by  the  contract.  The  rulings  of  the  Circuit  Court  were  in 
accordance  with  these  views. 

We  have  been  referred   by  the  plaintiffs   in   error  to   the   cases   of 


692  BRYANT   V.    ISBURGH.  [CHAP.  V. 

Thornton  y.Wynn,  12  Wheat.  183,  and  Lyon  v.  Bertram,  20  How.  149, 
to  sustain  the  proposition  that  the  defendant  in  error  in  this  case  could 
not  rescind  the  contract  and  sue  to  recover  back  the  price  of  the  iron. 
But  the  cases  are  not  in  point.  In  the  first  there  was  an  absolute  sale 
with  warranty  and  delivery  to  the  vendee  of  a  specific  chattel,  namely, 
a  race-horse  ;  in  the  second,  the  sale  was  of  a  specified  and  designated 
lot  of  Hour  which  the  vendee  had  accepted,  and  part  of  which  he  had 
used,  witli  ample  means  to  ascertain  whether  or  not  it  conformed  to  the 
contract. 

The  cases  we  have  cited  are  conclusive  against  the  contention  of  the 
plaintiffs  in  error.  The  jury  has  found  that  the  iron  was  not  of  the 
quality  which  the  contract  required,  and,  on  that  ground,  the  defendant 
in  error,  at  the  first  opportunity,  rejected  it,  as  he  had  a  right  to  do. 
His  suit  to  recover  the  price  was,  therefore,  well  brought. 

Other  errors  are  assigned,  but,  in  our  opinion,  they  present 
no  ground  for  the  reversal  of  the  judgment,  and  do  not  require 
discussion.  Judgment  affirmed.1 


BRYANT  v.  ISBURGH. 
Supreme  Judicial  Court  op  Massachusetts,  September  Term,  1859. 

[Reported  in  13  Gray,  607  ] 

Metcalf.  J.  The  precise  question  in  this  case  is,  whether  a  pur- 
chaser of  personal  property,  sold  to  him  with  an  express  warranty,  and 
taken  into  possession  by  him,  can  rescind  the  contract  and  return  the 
property,  for  breach  of  the  warranty,  when  there'is  no  fraud,  and  no 
express  agreement  that  he  may  do  so.  It  appears  from  the  cases 
cited  for  the  plaintiff  that  in  the  English  courts,  and  in  some  of  the 
courts  in  this  country,  he  cannot ;  and  that  his  only  remedy  is  on  the 
warranty.  See  also  2  Steph.  N.  P.  1296  ;  Addison  on  Con.  (2d  Amer. 
ed.)  272;  Oliphant's  Law  of  Horses,  88;  Cripps  v.  Smith,  3  Irish 
Law  R.  277. 

But  we  are  of  opinion  (notwithstanding  a  dictum  of  Parsons,  C.  J., 
in  Kimball  v.  Cunningham,  4  Mass.  505)  that,  by  the  law  of  this  com- 
monwealth, as  understood  and  practised  upon  for  more  than  forty 
Mars,  there  is  no  such  difference  between  the  effect  of  an  implied  and 
an  express  warranty  as  deprives  a  purchaser  of  any  legal  right  of  re- 
scission under  the  latter,  which  he  has  under  the  former;  and  that  he 
to  whom  property  is  sold  with  express  warranty,  as  well  as  he  to 
whom  it  is  sold  with  an  implied  warranty,  may  rescind  the  contract 
for  breach  of  warranty,  by  a  seasonable  return  of  the  property,  and 
thus  entitle  himself  to  a  full  defence  to  a  suit  brought  against  him  for 
the  price  of  the  property,  or  to  an  action  against,  the  seller  to  recover 
back  the  price,  if  it  have  been  paid  to  him.  In  Bradford  v.  Manly,  13 
Mass.   139,  where  it  was  decided  that   a   sale   by  sample  was  tanta- 

1  Only  BO  much  of  the  opinion  ;is  relates  to  the  subject  of  warranty  is  printed. 


SECT.  III.]  BRYANT    V.    ISBURGH. 

mount  to  an  express  warranty  that  the  sample  was  a  true  representa- 
tive of  the  kind  of  thing  sold  (and  in  which  case  there  was  no  fraud), 
Chief  Justice  Parker  siud :  "If  a  different  thing  is  delivered,  he 
[the  seller]  does  not  perforin  his  contract,  and  must  pay  the  differ- 
ence, or  receive  the  thing  back  ami  rescind  the  bargain,  if  it  is  offer,  i 
him."  This,  it  is  true,  was  only  a  dictum,  and  not  to  be  regarded 
a  decisive  authority.  But  in  l'erley  v.  Balch,  23  Pick.  2^:5,  which 
was  an  action  on  a  promissory  note  given  for  the  price  of  an  ox  sold 
to  the  defendant,  it  was  adjudged  that  the  jury  were  rightly  instructed 
that  if,  on  the  sale  of  the  ox,  there  was  fraud,  or  an  express  warranty 
and  a  breach  of  it,  the  defendant  might  avoid  the  contract  by  return- 
ing the  OX  within  a  reasonable  time,  and  that  this  would  be  a  defence  to 
the  action,  in  Dorr  v.  Fisher,  1  Cush.  271,  it  was  said  by  Shaw,  C. 
J.,  that,  "  to  avoid  circuity  of  action,  a  warranty  may  he  treated  as  a 
condition  subsequent,  at  the  election  of  the  vendee,  who  may,  upon  a 
breach  thereof,  rescind  the  contract  and  recover  back  the  amount  of 
his  purchase  money,  as  in  case  of  fraud.  But  if  he  does  this,  he 
must  first  return  the  property  sold,  or  do  everything  in  his  power  re- 
quisite to  a  complete  restoration  of  the  property  to  the  vendor ;  and 
without  this  he  cannot  recover."  The  chief  justice  took  no  distinction 
between  an  express  warranty  and  an  implied  one,  but  referred,  in# sup- 
port of  what  he  had  said  (with  other  cases),  to  Perley  v.  Balch,  cited 
above. 

In  1816,  when  the  case  of  Bradford  v.  Manly  was  before  this  court, 
and  afterwards,  until  1831,  the  law  of  England,  on  the  point  raised  in 
the  present  case,  was  supposed  to  be  as  we  now  hold  it  to  be  here. 
Lord  Eldon  had  said,  in  Curtis  v.  Hanuay,  3  Esp.  R.  82,  that  he  took 
it  to  be  "  clear  law  ;  "  and  so  it  was  laid  down  in  2  Selw.  N.  P.  (1st 
ed.)  586,  in  1807,  and  in  Long  on  Sales,  125,  126,  in  1821,  and  in  2 
Stark.  Ev.  (1st  ed.)  645,  in  1825.  In  1831,  in  Street  v.  Play,  2  P.  & 
Ad.  461,  Lord  Eldon's  opinion  was  first  denied,  and  a  contrary  opin- 
ion expressed  by  the  Court  of  King's  Bench.  Yet  our  court  subse- 
quently (in  1839)  decided  the  case  of  Perley  v.  Balch.  The  doctrine  of 
that  decision  prevents  circuity  of  action  and  multiplicity  of  suits,  and, 
at  the  same  time,  accomplishes  all  the  ends  of  justice. 

Exception  s  susta  ined.1 

1  The  doctrine  of  this  case  lias  been  continuously  followed  in  Massachusetts.  In 
Smith  r\  Hale.  158  Mass.  178,  it  was  held    that   a  buggy  the  springs  of   which   were 

warranted  sti g  might  lie  returned  though  one  of  the  springs  had  been  broken  while 

in  the  vcn. Ic's   possession,  hecause  "  the  breaking  of  the  spring  was  just   what  the 
plaintiff  had  warranted  against." 

Some  other  States  also  allow  a  rescission  of  the  contract  as  a  remedy  for  breach  of 
an  express  warranty      Thompson  v.  Harvey.  26   Ala.  519  ;   Sparling  v.  Marks.  Sf>   111. 
125;  Rogers  v.  Hanson,  35    la.  288;   Marshall  v.  Perry,  67   Me.  78;  Franklin  v.  1. 
7  (iill  &  .1.407  :  Boothby  V.  Scales,  27  Wis.  626,  636. 

The  contrary  view  is  supported  by  Thornton  v.  Wynn,  12  Wheat.  183;  Marsh  v. 
Lord,  55  Ind.  271 ;  Lighthurn  i\  Cooper,  I  Dana.  273;  Walls  v.  Gates.  6  Mo.  App. 
242;  Mailer  r.  Kno,  u  N.  V.  597;  Freyman  i>.  Knecht,  78  Pa.  141  ;  Allen  r.  Anderson, 
3  Hnmph.  581;  Wright  v.  Davenport,  44  Tex.  164;  Matteson  >-.  Holt,  45  Vt.  336. 
See  also  Fairbank  Canning  Co.  v  Metzger,  lis  \.  y.  260,  post,  701. 


6'J-i:  DAY    V.    POOL.  [CHAP.  V. 


EDMUND   DAY    v.    HIRAM   POOL. 

New  York  Court  of  Appeals.  February  25  —  April  1,  1873. 

|  Reported  in  f>2  New  York,  41G.] 

Peckham,  J.  Action  for  damages  for  alleged  breach  of  warranty 
upon  a  contract  to  sell  and  deliver  to  plaintiffs,  at  a  future  day,  eighty 
barrels  of  rock-candy  syrup.  The  contract  of  sale  with  warranty  was 
proved,  or  sufficiently  so  for  the  jury,  and  the  breach;  but  it  also 
appeared  in  proof  that  the  plaintiffs,  after  receiving  the  syrup  and  dis- 
covering its  failure  to  comply  with  the  warranty,  proceeded  to  use  it,  in 
their  business  of  wine  manufacture,  and  neither  returned  nor  offered  to 
return  it.  Upon  this  ground  the  plaintiffs,  on  defendants'  motion,  were 
nonsuited  at  the  circuit.  It  appeared  that  the  plaintiffs  required  and 
desired  to  purchase  for  their  business,  in  a  western  county,  an  article 
of  rock-candy  syrup  "that  would  not  crystallize,  or  the  sugar  fall 
down,"  in  its  use. 

This  the  defendants,  merchants  in  the  city  of  New  York,  undertook 
to  sell  to  them,  and  to  warrant  in  these  respects.  The  syrup  was 
manufactured  in  Boston;  but  samples  of  the  syrup  were  shown  at  the 
time  of  the  contract  to  the  plaintiffs.  It  was  to  be  ordered  by  defend- 
ants from  Boston.  It  was  all  to  be  sent  to  plaintiffs  by  the  fifteenth  of 
October  then  next,  in  two  car  loads. 

It  was  in  fact  delivered  in  small  parcels,  at  different  times,  up  to  the 
last  of  November. 

The  plaintiffs  complained  of  the  deficiency  of  the  syrup  at  various 
times  to  the  defendants  while  they  were  delivering  it ;  at  one  time  sent 
a  sample  of  that  already  received,  complaining  of  its  deficiency  ;  and 
the  defendants  promised  to  correct  it  (though  they  insisted  it  was  then 
sound).  If  not,  they  could  '-do  it  at  the  end."  The  plaintiffs  paid  for 
the  syrup  in  full  before  suit. 

The  question  presented  is,  did  the  plaintiffs'  claim  for  damages  sur- 
vive their  acceptance  and  use  of  the  syrup,  or  were  they  bound  to 
return  or  offer  to  return  the  defective  syrup  as  soon  as  its  deficiency 
was  discovered?  In  other  words,  were  they  bound  to  rescind  the  con- 
tract, or  could  they  use  the  syrup  and  rely  upon  their  warranty  ? 

There  seems  very  little  authority  upon  this  precise  point  in  this  State. 
viz.,  as  to  an  executory  sale,  with  warranty  as  to  the  quality  of  the 
article  contracted   for. 

It  is  well  settled  that,  upon  a  sale  and  delivery  in  prcesenti  of  goods 
with  express  warranty,  if  the  goods  upon  trial  or  full  examination  turn 
out  to  be  defective,  and  there  is  a  breach  of  the  warranty,  the  vendee 
may  retain  and  use  the  property,  and  may  have  his  remedy  upon  the 
warranty  without  returning  or  offering  to  return.  In  fact,  it  seems  to 
In-  regarded  as  settled  in  this  State,  though  perhaps  not  necessarily 
determined    in   any  case.  Hint    lie   has   no   right  to  return  the  goods  in 


SECT.  III. J  DAY   V.    POOL.  695 

such  case,  unless  there  was  fraud  in  the  sale.  It  is  not  necessary  to 
decide  that  point  in  this  case.  Vodrhees  v.  Earl,  2  Hill,  288  ;  Muller 
v.  Eno,  11  N.  Y.  597  ;  Bestv.  Eckle,  41  t<7.488  ;  Foot  v.  Bentley,  1 1  id. 
166;  see,  also,  Story  on  Sales,  §  421,  and  cases  cited;  Thornton  v. 
Wynn,    12  Wheat.  183. 

In  Massachusetts  and  in  Maryland  the  vendee  has  his  option  to  retain 
and  use  the  property,  and  recoup,  or  sue  on  his  warranty;  or  he  may 
return  it,  rescind,  and  sue  for  the  consideration.  Dorr  v.  Fisher,  1 
Cush.  271  ;  Bryant  v.  Isling,  13  Gray,  607;  Hyatt  v.  Bayle,  5  Gill  & 
J.  121  ;   Franklin  v.  Long,  7  id.  407 ;  Butler  v.  Blake,  2  Har.  &  J.  350. 

In  addition  to  the  mere  contract  of  sale  in  an  executory  as  well  as 
on  a  sale  in  prcesenti,  a  vendor  may  warrant  that  the  article  shall  have 
certain  qualities.  This  agreement  to  warrant  in  an  executory  contract 
of  sale  is  just  as  obligatory  as  a  warranty  on  a  present  sale  and  delivery 
of  goods.  Is  there  any  reason  why  the  vendee  in  such  executory  con- 
tract of  sale,  may  not  rely  upon  that  warranty  to  the  same  extent  as 
upon  a  warranty  in  a  present  sale  and  delivery  of  property? 

Had  this  syrup  been  all  present  when  purchased,  and  the  plaintiffs 
(the  purchasers)  given  it  all  reasonable  examination,  without  any  actual 
trial,  there  could  have  been  no  legal  objection  to  the  defendants'  war- 
ranty, that  it  would  tk  not  crystallize,  or  the  sugar  fall  down,"  in  its  use. 

Upon  such  a  warranty  the  plaintiffs  might  have  used  the  syrup  with- 
out returning  it,  though  found  to  be  defective,  and  relied  upon  their 
warranty.     This  is  well  settled  law. 

Why  might  they  not  likewise  rely  upon  a  like  warranty  in  this  execu- 
tory contract? 

1  confess  myself  unable  to  see  any  controlling  reason  for  a  legal 
difference. 

In  a  present  sale  with  warranty  it  is  expected,  of  course,  that  the 
vendor  incurs  the  peril  of  defects  being  developed,  in  the  property 
warranted,  after  its  delivery  to  the  purchaser.  He  warrants  against 
that.  He  does  precisely  the  same  upon  a  warranty  in  an  executory 
contract. 

If  it  be  dangerous  to  allow  this  defect  to  be  discovered  b}-  the  pur- 
chaser in  the  one  case,  without  an}'  return  of  the  property,  it  is  no 
more  so  in  the  other. 

I  see  no  reason  why  the  same  rights  and  remedies  should  not  attach 
to  a  warranty  in  an  executory  as  in  a  present  sale,  and  no  greater. 
The  purchaser  in  an  executory  sale  could  not  rely  upon  a  warranty  as 
to  open,  plainly  apparent  defects  any  more  than  he  could  in  a  sale 
in  prcesenti. 

The  appellant  greatly  relies  upon  the  nisi  prizis  case  of  Hopkins  v. 
Appleby,  1  Stark.  388,  tried  before  Lord  Ellenborough.  which  was  an 
action  for  goods  sold  and  delivered,  warranted  to  be  of  the  best  quality 
Spanish  barilla  and  salt  barilla.  The  defendant  had  consumed  the 
article  purchased  in  eight  successive  boilings,  without  giving  notice  of 
its  defect  or  offering  to  return  it;   and  he  attempted  to  show  that  the 


696  DAY    V.    POOL.  [CHAP.  V. 

quality  could  not  be  ascertained  by  mere  inspection  without  actual 
experiment.  Proof  to  the  reverse  of  this  was  also  given.  The  court 
held  that  he  ought  to  have  given  notice  of  the  defect  in  an  early  stage, 
so  that  the  vendor  might  have  sent  there  and  ascertained  the  cause  of 
the  failure  ;  and  he  disallowed  the  claim. 

That  case  has  not  been  followed  in  the  English  courts.  It  is  distinctly 
overruled  in  Poulton  v.  Lattimore,  9  Bar.  &  Cr.  259.  There  the  buyer 
neither  returned  the  seed  bought  nor  gave  any  notice  of  its  defect •  but 
as  there  was  an  express  warranty,  the  defects,  by  the  breach  thereof, 
were  allowed  to  defeat  the  action  for  the  price.     This  in  1829. 

Nor  does  it  seem  to  have  been  the  law  of  England  prior  to  that  deci- 
sion. Filder  v.  Starkin,  1  H.  Bl.  17;  and  see  Story  on  Sales,  §  405, 
and  cases  there  cited  ;  also  §  422,  and  note  2,  and  cases  cited. 

The  counsel  also  insists  that  the  cases  of  Reed  v.  Randall,  29  N.  Y. 
358  ;  McCormick  v.  Dawkins,  45  id.  265,  and  cases  there  referred  to, 
sustain  this  nonsuit.  Neither  was  a  case  of  warranty  ;  and  each  one 
that  speaks  upon  the  subject  expressly  excepts  the  rule  there  laid  down 
from  a  case  of  warrant}*  as  inapplicable. 

In  Neaffie  v.  Hart,  4  Lans.  4,  there  was  claimed  to  have  been  an 
implied  warranty.  The  court  held  that  it  was  not  taken  out  of  the  rule 
of  the  above  cases. 

In  my  opinion,  where  there  is  an  express  warrant)-  the  purchaser, 
whether  in  an  executed  or  an  executory  sale,  is  not  bound  to  return 
the  property  upon  discovering  the  breach,  even  if  he  have  the  right  to 
do  so. 

See  the  cases  as  to  the  right  to  return  property  purchased  upon  war- 
ranty, before  cited;  also  those  from  Massachusetts  and  from  Maryland; 
also  Messenger  v.  Pratt,  3  Lans.  234.  All  agree  that  he  is  not  bound 
to  return  property  warranted  upon  discovering  the  breach.  Reed  v. 
Randall,  supra,  would  have  been  decided  the  other  way  had  there  been 
an  express  warranty  as  to  the  quality  of  the  tobacco.  The  court  held 
there  was  no  warranty,  and  that  was  the  ground  of  the  judgment. 

Foot  v.  Bentley,  supra,  substantially  decides  this  case.  The  action 
in  respect  to  the  warranty  was  held  to  lie,  though  the  tea  was  not 
returned  when  its  defects  were  discovered ;  but  the  judgment  was  re- 
versed upon  another  ground.     Muller  v.  Eno,  supra. 

The  maintenance  of  this  action  does  not  at  all  conflict  with  Hopkins 
v.  Appleby,  supra. 

Here  notice  was  given  of  the  defects  in  the  syrup  at  an  early  stage, 
and  the  defendants  promised  to  attend  to  it.  They  also  apparently 
acquiesced  in  the  plaintiff's  use  of  it.  virtually  promising  to  make  it 
right  if  it  did  not  prove  to  be  sound  rock-candy  syrup.  "  It  would 
scarcely  be  just  now  to  allow  the  defendants  to  take  advantage  of  the 
non-return  of  the  syrup  under  such  circumstances. 

Of  course,  there  is  danger  of  fraud  and  false  claims,  even  where 
there  is  an  express  warranty,  when  notice  is  not  early  given  of  the 
defect,      it  leads  the   buyer  into  temptation.      Hence,  juries  should 


SECT.  III.]  GAYLORD    MANUF.    CO.    V.    ALLEN.  G97 

listen  to  such  claims  (never  presented  when  their  falsity  could  have 
been  ascertained)  with  great  caution.  The  proof  thereof  should  be 
more  clear  than  if  the  buyer  had  acted  with  the  frankness  of  an  bon<  st 
man,  willing  to  allow  his  claims  to  be  tested.  This  is  so  declared  by 
courts,  while  the  rule  is  maintained  as  to  an  express  warranty  as  above 
stated. 

The  order  of  the  General  Term  granting  a  new  trial  is,  therefore, 
affirmed,  and  judgment  absolute  given  for  the  plaintiffs. 

Grover,  Folger,  and  Kapallo,  J  J.,  concur. 

Church,  C.  J.,  Allen  and   Andrews,  JJ.,  dissent. 

Order  affirmed  and  judgment  accordingly. 


GAYLORD  MANUFACTURING  CO.  v.   SARAH  O.  ALLEN. 

New  York  Court  of  Appeals,  September  24  —  October  7,  1873. 

[Reported  in  53  New  York,  515.] 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court  of 
the  city  of  New  York,  affirming  a  judgment  in  favor  of  plaintiff,  entered 
upon  the  report  of  a  referee. 

This  action  was  brought  by  plaintiff,  as  assignee  of  the  Chicopee 
Malleable  Iron  Works,  to  recover  a  balance  claimed  to  be  due  upon 
sale  to  Richard  L.  Allen,  defendant's  intestate,  of  a  quantity  of  malle- 
able iron  castings.  The  answer  set  up  as  a  counter-claim  a  breach  of 
contract  as  to  time  of  delivery,  and  a  warranty  of  quality  and  breach 
thereof.  The  reply  denied  the  warranty,  alleged  acceptance,  and  that 
all  delays  were  occasioned  by  the  neglect  of  defendant  to  furnish 
patterns  as  agreed.     The  facts  sufficiently  appear  in  the  opinion. 

John  L.  Cadwalader,  for  the  appellant. 

John  L.  Hill,  for  the  respondent. 

Allen,  J.  Whether  the  contract  was  made  before,  or  on  or  after  the 
7th  of  January,  1865,  is  not  material ;  or  whether  it  rested  partly  in 
parol  and  partly  in  writing,  or  otherwise.  It  would  seem  from  the  evi- 
dence that  the  principal  negotiation  was  verbal,  at  a  personal  interview 
between  the  agents  of  the  contracting  parties  at  the  works  of  the  plain- 
tiff at  Chicopee  and  at  Northampton,  the  parties  visiting  the  latter 
place  to  inspect  one  of  the  machines  for  which  castings  were  wanted, 
at  which  interview  the  referee  was  authorized  to  infer  from  the  evi- 
dence that  the  character,  description,  and  quality  of  the  castings,  and 
the  purposes  for  which  they  would  be  wanted,  were  understood  by  the 
parties;  and  that  they  parted,  leaving  nothing  but  the  terms  or  prices 
at  which  the  plaintiff  would  contract  to  furnish  them  undetermined. 
The  evidence  is  that,  at  parting,  the  representative  of  the  Chicopee 
Malleable  Iron  Works,  the  contracting  party,  and  to  whose  obligations 
and  rights  the  plaintiff  has  succeeded,  was  requested  by  the  representa- 
tive of  defendant's  intestate  to  inform  him  by  letter  the  terms  on  which 


C98  GAYLOKD    MANUF.    CO.    V.    ALLEN.  [CHAP.  V. 

the  company  would  take  the  contract  or  do  the  work.  The  letter  was 
written  on  the  7th  of  January,  stating  the  price  per  pound  at  which  the 
castings  would  be  made,  and  promising,  if  an  order  should  be  given, 
to  put  the  patterns  in  the  works  as  soon  as  they  were  received,  and 
stating  that  the  writer  had  no  doubt  that  the  first  delivery  would  be 
made  as  required,  and  that  monthly  deliveries  would  be  continued,  and 
promising  to  make  every  exertion  to  complete  the  order  as  desired, 
concluding  with  a  statement  that,  in  all  probability,  the  company  would 
be  able  to  meet  every  requirement,  and  expressing  a  hope  to  receive 
the  order,  and  promising  prompt  attention.  The  reply  to  this  was  an 
order,  under  date  of  10th  of  January,  for  a  large  number  of  castings 
of  different  descriptions  and  weights,  with  a  specification  of  the  date 
and  times  at  which  they  would  be  wanted,  and  promising  to  send  most 
of  the  patterns  the  next  morning,  and  the  balance  in  a  few  days,  except 
those  for  a  pony  machine,  which  would  not  be  ready  until  spring,  the 
order  concluding  with  the  expression  of  a  hope  that  the  company  would 
be  able  to  furnish  the  castings  ordered  in  quantities  according  to  the 
date  specified,  and  of  suitable  quality.  But  following  the  signature  to 
the  order,  the  following  note  is  added:  "  The  above  to  be  at  sixteen 
cents  (16c.)  per  lb.,  as  agreeable  to  your  letter  of  January  7,  1<S64,  and 
to  be  of  the  best  quality  and  suitable  to  the  purpose  designed."  No 
answer  was  made  to  this  order,  in  writing  or  verbally,  so  far  as  appears  ; 
but  the  contracting  company  —  hereafter  called  the  plaintiff,  as  the  plain- 
tiff has  taken  its  place,  under  the  contract  —  proceeded  on  receipt  of  the 
patterns  to  manufacture  and  furnish  the  castings.  Whether  the  agree- 
ment was  consummated  by  the  letter  of  the  7th  of  January,  fixing  the 
price  as  found  by  the  referee,  or  by  that  of  the  10th  of  January,  ac- 
ceding to  the  terms  and  ordering  the  castings,  is  not  material.  There 
is  no  dispute  that  the  contract  was  made  substantially  as  found  by  the 
referee.  Whether  the  addendum  to  the  letter  of  the  defendant's  intes- 
tate is  or  is  not  a  part  of  the  contract,  the  legal  effect  is  the  same. 
The  referee  has  not  found  that  there  was  any  warrant}',  express  or 
implied,  of  the  quality  of  the  castings,  or  that  they  should  lie  suitable 
to  the  purpose  for  which  the}'  were  designed,  and,  so  far  as  appears, 
was  not  requested  to  find  such  fact.  There  is  no  ground  for  com- 
plaint that  the  castings  were  not  of  the  best  of  iron,  and  of  the  best 
quality  as  castings,  after  they  were  finished.  The  only  objection  to 
the m  was,  that  they  were  not  well  or  sufficiently  annealed,  and  were 
not  for  that  reason  suitable  for  the  purpose  for  which  they  were  re- 
quired, or  could  not  as  readily  or  profitably  be  wrought  and  applied  to 
such  purposes  as  if  they  had  been  more  perfectly  or  thoroughly  annealed. 
The  law  would  imply  precisely  that  which  the  defendant's  claim  made 
:i  part  of  the  express  contract.  This  was  an  executory  contract  for 
the  manufacture  and  sale  of  goods,  and  is  distinguished  from  a  sale  of 
good 9  in  existence,  defined  and  specificalby  sold.  A  contract  to  manu- 
facture and  deliver  an  article  at  a  future  day,  carries  with  it  an  obliga- 
tion that  the  article  shall  be  merchantable,  or,  if  sold  for  a  particular 


SECT.  III.]  GAYLORD    MANUF.    CO.    V.   ALLEN.  G99 

purpose,  that  it  shall  be  suitable  and  proper  for  sueh  purpose.  Har- 
gous  v.  Stone,  1  Seld.  73,  and  eases  eited  by  Judge  Paige,  at  page  86  ; 
Reed  v.  Randall,  29  N.  Y.  358;  Dutchess  Co.  v.  Harding,  49  id.  321. 
Incorporating  into  the  agreement  the  obligation  which  the  law  imp] 
would  superadd  nothing  to  the  contract,  or  vary  its  nature  or  affect  the 
remedy  upon  it.  Sprague  v.  Blake,  20  W.  R.  64.  "Whatever  agree- 
ment there  was,  whether  expressed  or  implied,  was  a  part  of  the  con- 
tract, and  was  not  a  special  warranty  or  agreement  collateral  to  it. 
and,  in  the  absence  of  fraud  or  artifice  in  inducing  an  acceptance  of 
the  article,  did  not  survive  the  execution  and  performance  of  the 
contract. 

It  is  not  intended  to  express  an  opinion  as  to  the  rule  in  case  there 
were  latent  defects,  or  those  which  could  not  lie  discerned  at  the  time 
of  the  delivery  or  acceptance  of  the  articles.  But  in  the  absence  of 
fraud  or  latent  defects,  an  acceptance  of  the  article  sold  upon  an 
executory  contract,  after  an  opportunity  to  examine  it,  is  a  consent  and 
agreement  that  the  quality  is  satisfactory  and  as  conforming  to  the 
contract,  and  bars  all  claim  for  compensation  for  an)-  defects  that  may 
exist  in  the  article.  The  party  cannot,  under  such  circumstances, 
retain  the  property,  and  afterwards  sue  or  counter-claim  for  damages, 
under  pretence  that  it  was  not  of  the  character  and  quality  or  descrip- 
tion called  for  by  the  agreement.  Dutchess  Co.  v.  Harding,  and 
Reed  v.  Randall,  supra,  and  cases  cited;  McCormick  v.  Sarson,  45 
N.  Y.  205.  The  dissents  in  the  latter  case  were  not  to  the  principle 
decided,  but  to  its  application  under  the  facts  and  circumstances  of 
that  case. 

Although  the  referee  has  not  found,  in  terms,  that  the  quality  of  the 
castings  was  patent  and  easily  to  be  discerned  upon  inspection  and 
attempt  to  use  them,  and  that  the  defendant  had  full  opportunity  to  and 
did  examine  them  and  know  their  quality,  the  evidence  clearly  shows 
this  to  have  been  so,  and  the  fact  is  clearly  to  be  implied  from  the 
findings  of  the  referee.  It  was  the  duty  of  the  intestate,  therefore,  to 
return  the  defective  castings  at  once,  and,  having  omitted  to  do  so.  he 
must  be  deemed  in  law  to  have  waived  all  objections  to  them.  And 
the  result  is  the  same,  whether  the  agreement  as  to  the  quality  of  the 
articles  is  implied  or  express  But  the  report  of  the  referee  is,  that 
the  intestate  did  object  to  some  of  the  castings,  and  they  were  re- 
annealed  by  the  plaintiff,  and  returned  to  and  accepted  by  the  intestate  ; 
and  that  the  residue  of  the  castings  were  accepted  and  used  without 
objection  or  complaint.  This  was  a  waiver  of  all  objection  to  the 
quality  of  the  articles,  and  an  assent  to  accept  them  in  performance  of 
the  contract.  The  report  might  have  gone  much  further.  The  evi- 
dence would  have  warranted  the  referee  in  finding  that  the  intestate 
voluntarily,  after  a  delivery  of  some  of  the  castings,  and  without  claim- 
ing that  they  were  not  of  the  quality  called  for  by  the  contract,  em- 
ployed the  plaintiff  to  reanneal  them,  and  agreed  upon  the  price  to  be 
paid,  and  had  others  reannealed  elsewhere,  without  making  claim  upon 


700  GAYLOED    MAXUF.    CO.    V.    ALLEN.  [CHAP.  V. 

the  plaintiff.  The  whole  case  shows  that  the  castings  were  regarded  at 
the  time  of  the  delivery  and  acceptance,  and  when  their  quality  and 
condition  was  well  known,  as  well  by  the  intestate  as  by  the  plaintiff, 
as  answering  the  description  and  call  of  the  contract ;  and  that  the 
claim  that  they  did  not  do  so  was  an  after-thought,  when  the  plaintiff 
had  declined  to  accept  the  note  of  the  intestate  instead  of  the  money 
for  the  balance  due.  There  was  no  agreement  to  furnish  the  castings 
at  any  particular  time,  and  the  referee  has  so  found. 

As  there  were  no  breaches  of  the  contract  by  the  plaintiff  established 
upon  the  trial,  entitling  the  plaintiff  to  counter-claim  for  damages,  it  is 
unnecessary  to  examine  the  questions  made  as  to  the  other  and  hypo- 
thetical findings  of  the  referee,  to  the  effect  that  if  there  was  any 
failure  of  the  plaintiff  to  perform  the  contract,  either  as  to  time  or  the 
quality  of  the  articles,  such  failure  was  caused  by  the  acts  of  the  intes- 
tate, and  was  therefore  excused.  There  were  several  objections  and 
exceptions  to  evidence  upon  the  trial,  but  no  point  is  made  upon  them 
here,  and  no  error  seems  to  have  been  committed  to  the  prejudice  of 
the  defendant  in  that  respect.  Upon  the  merits  the  facts  found,  as  well 
as  upon  the  law  of  the  case,  the  plaintiff  was  entitled  to  a  judgment. 
The  offer  of  the  plaintiff  to  deduct  a  specified  sum  from  the  claim  as 
made  for  the  "  sake  of  peaceful  settlement,"  at  the  same  time  insisting 
upon  a  legal  right  to  demand  the  whole,  not  having  been  accepted  by 
the  intestate,  is  not  binding  upon  the  plaintiff,  and  cannot  operate  as 
an  admission  that  any  deduction  should  be  made,  and  the  defendant 
has  failed  to  show  that  any  particular  sum  should  be  deducted  for 
castings  returned  or  furnished  in  excess  of  orders. 

The  judgment  must  be  affirmed. 

All  concur ;  Groveu  and  Folger,  JJ.,  concurring  in  result. 

Judgment  affirmed.1 

1  In  Brigg  v.  Hilton,  99  N.  Y.  517,  529,  the  court  said  :  "  In  Parks  v.  Morris  Axe 
and  Tool  Co.,  54  N.  Y.  586,  after  referring  to  Muller  e.  Eno,  14  N.  Y.  597,  and  Day  v. 
Pool,  52  N.  Y.  416,  the  court  held,  in  a  case  properly  calling  for  such  decision,  that  a 
warranty  might  accompany  an  executory  contract  and  be  enforced  as  such.  Indeed, 
the  principles  of  law  applicable  to  either  case  should  now  be  deemed  well  settled.  If 
the  sale  is  of  existing  and  specific  goods,  with  or  without  warranty  of  quality,  the 
title  at  once  passes  to  the  purchaser,  and  where  there  is  an  express  warranty,  it  is,  if 
untrue,  at  once  broken,  and  the  vendor  becomes  liable  in  damages,  but  the  purchaser 
cannot  for  that  reason  either  refuse  to  accept  the  goods  or  return  them.  If  the  con- 
tract is  executory,  and  the  goods  yet  to  be  manufactured,  no  title  can  pass  until  deliv- 
ery or  some  equivalent  act  to  which  both  parties  assent,  and  when  offered,  the  vendee 
may  reject  the  goods  as  not  answering  the  bargain,  but  if  the  sale  was  with  warranty, 
hi'  may  receive  the  goods,  ami  then  the  same  consequences  attach  as  in  the  former  case, 
ami  among  others,  the  right  to  compensation  if  the  warranty  is  broken." 

In  Studer  o.  Bleistein,  115  X.  Y.  316,  .'525,  the  court  said:  "  An  acceptance  by  the 
vendee  of  personal  property  manufactured  under  an  executory  contract  of  sale,  after 
a  full  ami  fair  opportunity  of  inspection,  in  tin;  absence  of  fraud,  estops  him  from 
i  after  raising  any  objection  as  to  visible  defects  and  imperfections,  whether  dis- 
covered or  not,  unless  such  delivery  and  acceptance  is  accompanied  by  some  warranty 
of  quality  manifestly  intended  to  survive  acceptance.  Heed  y,  Randall,  29  X.  Y.  358; 
Gaylord  Mfg.  Co.  v.  Allen,  53  id.  515;  Gurney  v.  A.  &  <;.  W.  R.  Co.,  58  id.  358; 
Norton  v.  Dreyfuss,  loo  X.  Y.  90;  Coplay  Iron  Co.  v.  Pope,  108  id.  232;  Brown  v. 

1    •-!•  r,  nl.  387." 


SECT.  III.]  FAIKBANK   CANNING   CO.   V.    METZGER.  701 


FAIRBANK  CANNING  COMPANY  v.  SETH   X.   METZGER. 

New  Youk  Couut  ok   Appeals,    Second    Division.     December   11, 
1889, —January  14,  18'JO. 

[Reported  in  118  N.  Y.  260.  | 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
ii  the  fourth  judicial  department,  entered  upon  an  order  made  January 
11,  1887,  which  affirmed  a  judgment  in  favor  of  plaintiff  entered  upon 
the  report  of  a  referee. 

This  action  was  brought  to  recover  the  contract  price  of  a  car-load 
of  dressed  beef. 

The  answer  averred,  by  way  of  counter-claim,  a  warranty,  that  the 
meat  should  be  clean,  well  dressed,  and  in  first-class  condition,  not 
heated  before  being  killed,  and  a  breach  thereof  by  reason  of  which 
defendant  sustained  damage. 

The  following  facts  appeared. 

The  plaintiff  is  a  corporation  engaged  in  buying  and  slaughtering 
cattle  and  selling  fresh  dressed  beef  in  Chicago.  The  defendants  are 
copartners  engaged  in  wholesaling  and  retailing  meat.  In  February, 
1883,  the  plaintiff  by  letter  solicited  the  defendants  to  purchase  from 
it  what  dressed  beef  the}-  required.  It  resulted  in  a  contract,  made 
entirely  by  correspondence,  for  meat  to  be  wholesaled  from  the  car  by 
defendant's  agent  from  Dunkirk  to  Elmira,  the  portion  remaining 
unsold  when  the  car  should  reach  Elmira  to  be  retailed  by  the  defend- 
ants. The  defendants  ordered  at  different  times  four  car-loads  of  fresh 
beef  and,  pursuant  to  their  agreement,  on  receipt  of  the  bill  for  the 
second  and  third  car-loads,  and  before  the  arrival  of  the  goods,  paid 
the  plaintiff  therefor  by  a  draft  on  New  York. 

The  referee  found  as  facts :  That  the  plaintiff  was  to  deliver  the 
beef  on  board  the  cars  at  Chicago,  which  was  a  delivery  to  the  defend- 
ants, and  the  same  then  and  there  became  the  property  of  the  defend- 
ants ;  that  by  the  agreement  made  between  the  parties  the  plaintiff 
represented  and  agreed  to  furnish  the  defendants  beef  that  had  not 
been  heated  before  being  killed  ;  that  should  be  thoroughly  chilled 
before  being  loaded  on  the  cars  ;  that  it  should  be  in  first-class  con- 
dition in  every  respect  and  merchantable  ;  that  a  portion  of  the  meat 
furnished,  including  all  of  the  fourth  car-load,  had  been  heated  before 
being  killed,  and  was  not  in  first-class  condition  or  merchantable  when 
shipped  at  Chicago  ;  that  as  to  the  fourth  car-load,  the  "  defendants  did 
all  they  could  to  dispose  of  it,  and  save  what  they  could  from  it.  after 
the  car  had  been  opened  several  times  on  different  days  between  Dun- 
kirk and  Elmira,  and  finding  they  could  not  use  it,  they  shipped  back 
to  the  plaintiff  12,991  pounds,  and  notified  plaintiff  by  wire  of  the 
same,  and  plaintiff  immediately  wired  back  that  they  would  not  receive 
it,  whereupon  the  defendants  ordered  the  same  back  to  Elmira/' 


702  FAIRBANK    CANNING    CO.    V.    METZGER.  [CHAP.  V. 

The  referee  found,  as  a  matter  of  law,  that  there  was  no  warranty, 
and  directed  a  judgment  to  be  entered  in  favor  of  the  plaintiff  for  the 
contract  price. 

Further  facts  appear  in  the  opinion. 

Gabriel  L.  Smith,  for  appellant. 

Henry  8.  JRedfidd,  for  respondent. 

Parker,  J.  In  the  absence  of  a  warranty  as  to  quality  and  a 
breach,  the  defendant's  claim  for  damages  could  not  have  survived  the 
use  of  the  property.  For  in  such  case  vendees  are  bound  to  rescind 
the  contract  and  return,  or  offer  to  return  the  goods.  If  they  omit  to 
do  so,  they  will  be  conclusively  presumed  to  have  acquiesced  in  their 
quality.  Coplay  Iron  Company  v.  Pope,  108  N.  Y.  232.  Therefore, 
if  the  referee  was  right  in  holding  that  there  was  no  warranty  as  to 
quality,  collateral  to  the  contract  of  sale,  we  need  not  inquire  further, 
as  the  judgment  must  be  affirmed.  The  referee  has  found  the  facts, 
and  this  court  ma}*  properly  review  his  legal  conclusion  as  to  whether 
they  amounted  to  a  warrant}-. 

'•  A  warranty  is  an  express  or  implied  statement  of  something  which 
a  party  undertakes  shall  be  a  part  of  a  contract,  and.  though  part  of 
the  contract,  collateral  to  the  express  object  of  it."  2  Schouler  on 
Personal  Property,  327.  All  contracts  of  sale  with  warranty,  there- 
fore, must  contain  two  independent  stipulations  :  — 

First.  An  agreement  for  the  transfer  of  title  and  possession  from 
the  vendor  to  the  vendee. 

Second.  A  further  agreement  that  the  subject  of  the  sale  has  certain 
qualities  and  conditions. 

It  is  not  necessary  that  in  the  collateral  agreement  the  word  war- 
ranty should  be  used.  No  particular  phraseology  is  requisite  to  con- 
stitute a  warranty.  "It  must  be  a  representation  which  the  vendee 
relies  on,  and  which  is  understood  by  the  parties  as  an  absolute  asser- 
tion, and  not  the  expression  of  an  opinion."  Oneida  Manufacturing 
Society  v.  Lawrence,  4  Cow.  440.  It  is  not  necessary  that  the  vendor 
should  have  intended  the  representation  to  constitute  a  warranty.  If 
the  writing  contains  that  which  amounts  to  a  warranty,  the  vendor  will 
not  be  permitted  to  say  that  he  did  not  intend  what  his  language 
clearly  and  explicitly  declares.  Hawkins  v.  Pemberton,  51  N.  Y.  198. 
In  that  case  the  defendants  purchased  at  auction  an  article,  reiving 
upon  the  representation  of  the  auctioneer  that  it  was  '■blue  vitriol." 
It  was  in  fact  "  Salzburger  vitriol,"  an  article  much  less  valuable.  In 
an  action  brought  against  the  purchaser  the  trial  court  directed  a 
verdict  for  the  plaintiff.  This  was  held  to  be  error,  because  the  rep- 
resentation at  the  sale  amounted  to  a  warranty. 

Judge  Karl,  in  delivering  the  opinion  of  the  court,  after  collating 
and  discussing  the  authorities  upon  the  subject  of  warranty,  said: 
'•The  more  recent  cases  hold  that  a  positive  affirmation,  understood 
and  relied  upon  as  such  by  the  vendee,  is  an  express  warrant}-." 

In    Kent    v.   Friedman,   17  Wkly.  Dig.   484,  Judge  Learned  in   his 


SECT.  III.]  FAIRBANK    CANNING    CO.    V.    METZGER.  703 

opinion  says:  ''There  can  be  no  difference  between  an  executor)' 
contract  to  sell  and  deliver  goods  of  such  and  such  a  quality,  and  an 
executory  contract  to  sell  and  deliver  goods  which  the  vendor  warrants 
to  be  of  such  and  such  a  quality.  The  former  is  as  much  a  warranty 
as  the  latter."  The  Court  of  Appeals  subsequently  affirmed  the  judg- 
ment of  the  General  Term  without  an  opinion.     101  N.  Y.  616. 

In  White  v.  Miller,  71  N.  Y.  118,  frequently  referred  to  as  the 
"  Bristol  cabbage  seed  case,"  the  Court  says:  "'The  case  of  Hawkins 
r.  Pemberton,  supra,  adopts  as  the  law  in  this  State  the  doctrine  upon 
this  subject  now  prevailing  elsewhere,  that  a  sale  of  a  chattel  by  a 
particular  description  is  a  warranty  that  the  article  sold  is  of  the  kind 
specified." 

So,  too,  a  sale  1)3-  sample  imports  a  warrant}-  that  the  quality  of  the 
goods  shall  be  equal  in  every  respect  to  the  sample.  Brigg  '•.  Hilton, 
[)'J  N.  Y.  517,  and  cases  cited. 

Now,  in  the  case  before  us,  the  defendants  undertook  to  purchase  of 
the  plaintiff  fresh  dressed  beef  to  be  wholesaled  in  part  and  the  residue 
retailed  to  their  customers.  The}'  endeavored  to  procure  good  beef. 
Not  only  did  they  contract  for  beef  that  was  clean,  well  dressed,  in 
first-class  condition  in  every  respect,  and  merchantable,  and  that  was 
thoroughly  chilled  before  being  loaded  on  the  cars  ;  but  further,  that 
they  should  not  be  given  beef  that  had  been  heated  before  being 
killed. 

When,  therefore,  the  plaintiff  placed  in  a  suitable  car  beef  well- 
dressed  and  clean,  and  of  the  general  description  given  in  defendants' 
order,  it  had  made  a  delivery  of  the  merchandise  sold,  and  by  the  terms 
of  the  contract  was  entitled  to  be  paid  as  soon  as  the  bill  should  reach 
defendants,  and  before  the  arrival  of  the  beef  made  an  examination  by 
defendants  possible. 

But  there  was  another  collateral  engagement,  and  yet  forming  a  part 
of  the  contract,  which  the  plaintiff  had  not  performed,  —  an  engage- 
ment of  much  consequence  to  the  defendants  and  their  customers, 
because  it  affected  the  quality  of  the  meat.  Upon  its  performance  or 
non-performance  depended  whether  it  should  be  wholesome  as  an  article 
of  food.  It  was  of  such  a  character  that  defendants  were  obliged  to 
rely  solely  upon  the  representation  of  the  plaintiff  in  respect  thereto. 
The  plaintiff  or  its  agents  selected  from  their  stock  the  cattle  to  be 
slaughtered.  No  one  else  knew  or  could  know  whether  they  were 
heated  and  feverish.  Inspection  immediately  after  placing  the  beef  in 
the  car  would  not  determine  it.  That  collateral  engagement  consisted 
of  a  representation  and  agreement  that  plaintiff  would  deliver  to  the 
defendants  beef  from  cattle  that  had  not  been  heated  before  being 
slaughtered.  Such  representation  and  agreement  amounted  to  an 
express  warranty. 

The  referee  found  as  a  fact,  "  that  the  meat  had  been  heated  before 
being  killed,"  therefore  there  was  a  breach  of  the  warranty,  and  the 
defendants  are  entitled  to  recover  their  damages,  bv  way  of  counter- 


704  FAIRBANK    CANNING   CO.    V.    METZGER.  [CHAP.  V. 

claim,  unless  such  right  must  be  deemed  to  have  been  subsequently 
waned. 

It  is  not  necessary  for  the  disposition  of  this  case  to  decide,  and 
therefore  it  is  not  decided,  whether  a  warranty  is  implied  in  all  cases 
of  a  sale  of  fresh  dressed  meat,  by  the  party  slaughtering  the  animals, 
that  they  were  not  heated  before  being  killed,  and,  as  some  of  my 
associates  are  averse  to  any  expression  whatever  upon  that  question  at 
this  time,  what  is  said  must  be  regarded  as  an  individual  view  rather 
than  that  of  the  court.  My  attention  has  not  been  called  to  a  decision 
in  this  State  covering  that  precise  question. 

It  was  determined  in  Divine  v.  McCormick,  50  Barb.  116,  that  in 
the  sale  of  a  heifer  for  immediate  consumption,  a  warranty  that  she 
is  not  diseased  and  unfit  for  food  is  implied.  That  decision  is  well 
founded  in  principle,  and  is  in  accordance  with  a  sound  public  policy, 
which  demands  that  the  doctrine  of  caveat  emptor  shall  be  still 
further  encroached  upon,  rather  than  that  the  public  health  shall  be 
endangered.  I  see  no  reason  for  applying  the  rule  to  one  who 
slaughters  and  sells  to  his  customers  for  immediate  consumption,  and 
denying  its  application  to  one  who  slaughters  and  sells  to  another 
to  be  retailed  by  him.  In  each  case  it  is  fresh  meat  intended  for 
immediate   consumption. 

The  rule  is  well  settled  by  the  courts  of  last  resort  in  man}-  of  the 
States  that  a  vendor  of  an  article  manufactured  by  him  for  a  particular 
use  impliedly  warrants  it  against  all  such  defects  as  arise  from  his 
unskilfulness,  either  in  selecting  the  materials,  or  in  putting  them 
together  and  adapting  them  to  the  required  purpose.  See  cases  cited 
in  Albany  Law  Journal,  vol.  18,  p.  324. 

One  who  prepares  meat  for  the  wholesale  market  may  be  said  to 
come  within  that  rule,  —  because  he  purchases  the  cattle;  determines 
whether  they  are  healthy  and  in  proper  condition  for  food  ;  and  upon 
his  skill  in  dressing  and  preparing  the  meat  for  transportation  a  long 
distance,  its  quality  and  condition  as  an  article  of  diet  for  the  consumer 
largely  depends. 

In  two  of  the  States,  at  least,  it  is  held  that  where  perishable  goods 
are  sold  to  be  shipped  to  a  distant  market,  a  warranty  is  implied  that 
they  are  properly  packed  and  fit  for  shipment,  but  not  that  they  will 
continue  sound  for  any  particular  or  definite  period.  Mann  v.  Evers- 
ton,  32  Ind.  355;  Leopold  v.  Van  Kirk,  27  Wis.  152. 

The  respondent  insists  that  the  act  of  defendants'  agent  in  selling 
some  sixty  quarters  of  the  beef  before  the  car  reached  Elmira,  when 
the  defendants,  after  making  a  personal  examination,  immediately 
shipped  that  which  remained  unsold  to  the  plaintiff,  constituted  a 
waiver  of  their  claim  for  damages.  It  is  undoubtedly  the  rule  that  in 
cases  of  executory  contracts  for  the  sale  and  delivery  of  personal 
property,  if  the  article  furnished  fails  to  conform  to  the  agreement,  the 
vendee's  right  to  recover  damages  does  not  survive  an  acceptance  of 
the  property,  after  opportunity  to  ascertain  the  defect,  unless  notice 


SECT.  III.]         ZABBISKIE   V.    CENTRAL    VERMONT    RAILROAD.  7    5 

has  been  given  to  the  vendor,  or  the  vendee  offers  to  return  the  prop- 
erty. Reed  v.  Randall,  29  N.  V.  358  ;  Beck  v.  Sheldon,  48  N.  V.  365  ; 
Coplay  Iron  Company  v.  Pope,  108  N.  Y.  232. 

But  when  there  is  an  express  warranty  it  is  unimportant  whether  the 
sale  be  regarded  as  executory  or  in  prcesenti,  for  it  is  now  well  settled 
that  the  same  rights  and  remedies  attach  to  an  express  warranty  in  an 
executory  as  in  a  present  sale.  Day  v.  Pool,  52  N.  Y.  41G;  Parks 
v.  Morris  Ax  &  Tool  Company,  51  N.  Y.  58G  ;  Dounce  v.  Dow,  57 
N.  Y.  16  ;  Brigg  v.  Hilton,  99  N.  Y.  517. 

In  such  cases  the  right  to  recover  damages  for  the  breach  of  the 
warranty  survives  an  acceptance,  the  vendee  being  under  no  obligation 
to  return  the  goods. 

Indeed,  his  right  to  return  them  upon  discovery  of  the  breach  is 
questioned  in  Day  v.  Pool,  supra.  And  Judge  Danforth.  in  Brigg  v. 
Hilton,  supra,  alter  a  careful  review  of  the  leading  authorities  upon 
the  question,  states  the  rule  as  follows:  "Where  there  is  an  express 
warranty,  it  is,  if  untrue,  at  once  broken,  and  the  vendor  becomes 
liable  in  damages;  but  the  purchaser  cannot  for  that  reason  either 
refuse  to  accept  the  goods  or  return  them." 

It  follows,  from  the  views  expressed,  that  the  judgment  should  be 
reversed. 

All  concur,  except  Follett,  C.  J.,  not  sitting. 

Judgment  reversed. 


ZABRISKIE   v.  CENTRAL  VERMONT   RAILROAD    CO. 

New  York  Court  of  Appeals,  December  2,  1891  — Febbuaby  2.  1892. 

[Reported  in  131  New  York,  72] 

Ruger,  C.  J.  This  action  was  brought  by  the  plaintiff  to  recover 
the  contract  price  of  a  certain  quantity  of  coal  sold  and  delivered  by 
Robert  Hare  Powell  &  Co.  and  their  assignee,  the  Guarantee  Trust 
and  Safe  Deposit  Company,  to  the  defendant,  after  June,  1887,  and 
which  claim  was  assigned  by  the  vendors  to  the  plaintiff. 

This  coal  was  furnished  by  the  vendors  to  the  defendant  under  a 
written  contract  made  June  8,  1887,  between  Powell  &  Co.  and  the 
defendant,  whereby  the  said  vendors  agreed  to  sell  and  deliver  to  the 
defendant,  during  the  year  ending  June  1,  1888,  at  Norwood,  N.  Y.. 
30,000  tons  of  "Powelton  coal,  of  same  quality  and  kind  as  furnished 
you  during  the  past  year."  at  83  per  net  ton. 

The  same  vendors  had  furnished  the  defendant  a  quantity  of  Powel- 
ton coal  the  previous  year,  which  had  been  approved  as  satisfactory  by 
the  defendant.  Under  the  contract  of  1887,  Powell  &  Co.  had.  previous 
to  August  29,  1887,  delivered  to  the  defendant  on  its  contract,  upwards 
of  four  thousand  tons  of  coal,  and  on  that  day  they  assigned  their  con- 
tract to  the  Guarantee  Trust  and  Safe  Deposit  Company,  who  continued 


706  ZABRISKIE   V.    CENTRAL    VERMONT   RAILROAD.  [CHAP.  V. 

delivering  coal  until  they  were  stopped  by  the  absolute  refusal  of  the 
defendant  to  receive  any  more  coal  from  them  of  the  kind  already 
delivered.  The  assignee  of  the  contract  had,  up  to  this-time,  delivered 
about  five  hundred  tons,  leaving  some  twenty-five  thousand  tons  yet 
undelivered  to  complete  the  performance  of  the  contract. 

Immediately  after  the  defendant  had  had  an  opportunity  to  test  the 
first  delivery  of  coal,  and  until  it  ceased  altogether,  it  uniformly  and 
constantly  complained  of  the  quality  of  the  coal  delivered  to  it,  and 
objected  that  it  did  not  correspond,  either  in  quality  or  kind,  with  the 
coal  delivered  to  the  company  in  the  year  1886.  The  defendant,  how- 
ever, was  induced  to  continue  to  receive  and  to  test  the  coal  actually 
delivered,  by  the  representations  and  promises  made  by  the  plaintiff's 
assignors  that  the  quality  of  the  coal  thereafter  delivered  should  be 
improved,  and  that  upon  trial  it  would  be  found  to  work  more  satisfac- 
torily. Various  interviews  took  place  between  the  agents  of  the  defend- 
ant and  the  plaintiff's  assignors,  and  several  examinations  were  made 
by  them  after  the  coal  was  delivered  and  in  possession  of  defendant, 
and  the  vendors  uniformly  promised  to  improve  the  quality  of  the  coal 
delivered,  and  predicted  that  the  future  deliveries  would,  upon  actual 
experiment,  prove  to  conform  to  the  quality  of  the  coal  described  in  the 
contract,  and  that  compensation  for  the  damages  caused  by  the  inferior 
quality  of  the  coal  already  delivered,  should  be  adjusted. 

It  was  found  by  the  referee  that  practically  all  of  the  coal  delivered 
under  the  contract  was  greatly  inferior  to  that  furnished  in  the  year 
1886.  It  is  clearly  inferable  from  the  findings  of  the  referee,  as  well 
as  the  evidence,  that  the  great  bulk  of  the  coal  was  received  by  the 
defendant  at  the  earnest  solicitation  of  the  vendors,  and  for  the  purpose 
of  testing  its  quality  and  determining  whether  the  vendors  would  be 
able  to  make  its  quality  conform  to  the  obligations  of  their  contract. 
It  is  also  evident  from  the  findings  that  this  effort  was  an  unqualified 
failure. 

It  is  contended  by  the  plaintiff  that  there  was  no  warranty  of  the 
quality  of  the  coal  sold,  and  that,  by  its  acceptance,  the  defendant  has 
precluded  itself  from  claiming  damages  for  a  breach  of  contract. 

A  satisfactory  answer  to  this  claim  appears  in  the  fact  that  it  is  not 
found  or  shown  that  the  defects  in  the  coal  were  visible  on  inspection  ; 
but,  on  the  contrary,  it  negatively  appears  from  the  conduct  of  both 
the  vendors  and  vendee  that  they  were  not  discernible  on  inspection. 
A  further  answer  to  this  point  is  found  in  the  proposition  that  the  evi- 
dence authorized  the  finding  that  there  was  a  warranty  as  to  the  quality 
of  the  coal  sold. 

The  contract  in  this  case  calls  for  Powclton  coal  of  the  "  same  quality 
and  kind  as  furnished'*  by  tin;  vendors  to  the  defendant  the  preceding 
year.  It  calls  for  coal  of  a  particular  quality  and  kind,  determinable 
by  a  standard  which  was  equally  well  known  and  understood,  both  by 
the  vendors  and  the  purchaser.  AVhile  the  term  "  Powelton  coal"  may 
he  snid  to  lie  a  descriptive  term,  merely;  when  it  is  said  that  the  coal 


SECT.  III.]        ZABEISKIB   V.   CENTRAL   VERMONT   RAILROAD.  707 

was  to  be  Powelton  coal  of  the  same  quality  and  kind  as  that  delivered 
in  the  previous  year,  it  goes  beyond  mere  words  of  description,  and 
refers  to  the  intrinsic  value  of  the  goods  sold  in  language  which  cannot 
be  misunderstood,  and  can  be  satisfied  only  by  a  consideration  of  its 
fitness  to  perform  the  work  required  of  it  in  the  defendant's  busini 
That  this  was  the:  theory  of  the  vendors  while  the  coal  was  being  deliv- 
ered, is  <|iiite  evident  from  their  request  that  it  should  not  lie  prema- 
turely judged  by  its  appearance  alone,  but  should  be  determined  by 
positive  trial  and  the  results  shown  by  actual  use  and  experiment.  It 
comes,  therefore,  with  ill  grace  from  the  vendors  now  to  insist  that  the 
defects  in  the  coal  were  so  perceptible  on  inspection  that  the  defendant 
should  be  barred  by  its  acceptance,  when  they  themselves  had  induced 
that  acceptance  only  by  the  assurance  that  tin-  working  quality  of  the 
coal  would  show  that  the  defects  visible  on  inspection  were  apparent 
and  not  real. 

We  are,  however,  of  the  opinion  that,  upon  the  evidence,  the  contract 
contained  a  warranty  of  quality  which  survived  the  acceptance  of  the 
goods.  The  principle  is  well  established  that,  upon  an  executory  sale 
of  goods  by  sample,  with  warranty  that  the  goods  shall  correspond  with 
the  sample,  the  vendee  is  not  precluded  from  claiming  and  recovering 
damages  for  breach  of  warranty,  although  he  has  accepted  the  goods 
after  an  opportunity  for  inspection.  Kent  v.  Friedman,  101  X.  Y.  GIG  ; 
Brigg  v.  Hilton,  99  id.  517  ;  Gurney  v.  Atlantic  &  Great  Western  R.  Co., 
58  id.  358. 

We  are,  also,  of  the  opinion  that  the  sale  in  question  was,  practically, 
a  sale  Ivy  sample.  Although  the  standard  selected  for  comparison  was 
not  present,  or  in  existence  even,  at  the  time  of  the  sale,  its  qualities 
had  been  observed  and  demonstrated,  and  were  capable'of  exact  ascer- 
tainment by  the  evidence  of  those  who  had  witnessed  the  results  pro- 
duced by  the  consumption  of  the  coal.  It  was  unnecessary  for  the 
purpose  of  effecting  a  comparison  of  the  respective  qualities  of  the  two 
specimens  of  coal  that  they  should  be  present  and  compared  side  by 
side,  or  tested  at  the  same  time.  The  capacity  of  coal  for  generating 
heat  and  steam  determines  its  value,  and  it  is  only  by  the  destruction 
of  the  subject  that  a  standard  can  lie  created  for  comparison.  The  com- 
parison does  not  depend  upon  considerations  of  external  correspondence 
and  appearance,  and  this  was  obviously  the  view  which  these  parties 
took  of  the  question  while  negotiating  as  to  the  continuance  of  the 
deliveries  of  coal  under  this  contract. 

The  standard  selected  for  testing  the  quality  of  the  goods  sold  was 
considered  sufficiently  definite  and  precise  by  the  parties  to  the  contract, 
and  it  does  not  appear  that  there  was  any  difficulty  in  practice  in  apply- 
ing it  to  the  subject. 

A  contract  of  sale  which  points  out  a  known  and  ascertainable  stan- 
dard by  which  to  judge  the  quality  of  goods  sold,  is.  for  all  practical 
purposes,  a  sale  by  sample,  and  renders  the  vendor  liable  for  damages 
upon  a  breach  of  warranty,  although  there  has  been  an  acceptance  after 


708  UNDERWOOD   V.    WOLF.  [CHAP.  V. 

opportunity  to  inspect  the  goods.  The  cases  of  Coplay  Iron  Co.  v.  Pope, 
108  N.  Y.  232  ;  Studer  v.  Bleistein,  115  id.  316  ;  Pierson  v.  Crooks,  id. 
539,  and  other  cases  of  like  character  are  clearly  distinguishable,  inas- 
much as  one  is  a  contract  concerning  a  sale  b}*  sample  and  the  others  were 
executory  contracts  for  the  manufacture  and  sale  or  delivery  of  goods  of 
a  particular  description.  In  cases  of  the  latter  character,  where  the 
quality  of  goods  is  capable  of  discover}*  upon  inspection,  and  where, 
after  full  opportunity  for  such  inspection,  the  goods  are  accepted  and 
no  warranty  attends  the  sale,  the  vendee  is  precluded  from  recovering 
damages  for  any  variation  between  the  goods  delivered  and  those 
described  in  the  contract.  Judgment  affirmed.1 


UNDERWOOD  v.  WOLF. 
Supreme  Court  of  Illinois,  January  21,   1890. 

[Reported  in  131  Illinois,  425.] 

Mr.  Justice  Magruder  delivered  the  opinion  of  the  court:  — 

The  contract  bears  date  Feb.  8,  1886.  By  its  terms  the  appellee 
was  to  furnish  and  erect  the  refrigerating  machinery  with  engine,  pump, 
pipes,  etc.,  in  the  packing-house  of  the  appellants,  and  have  the  same 
in  complete  working  order  by  the  8th  day  of  May,  1886.  The  evidence 
tends  to  show  that  the  whole  plant  was  not  ready  for  use  until  the  1st 
day  of  July,  1886. 

The  evidence  further  tends  to  show  that  the  appellants  were  carrying 
on  their  packing  business  while  the  appellee  was  putting  in  the  ma- 
chinery. The  appellee  claims  that  the  conduct  of  the  business  under 
such  circumstances  necessarily  interfered  with  his  work  and  delayed 
its  progress.  He  also  claims  that  delay  was  caused  by  the  failure  of 
the  appellants  to  prepare  in  proper  time  the  room  in  which  the  ma- 
chinery was  to  be  erected. 

Whether  the  delay  in  the  completion  of  the  plant  was  due  to  the 
fault  of  the  appellee  or  to  that  of  the  appellants  was  a  question  of 
fact  to  be  determined  by  the  jury  under  proper  instructions  from  the 
court.  We  see  no  objection  to  the  tenth  instruction  given  for  the 
defendants  below,  as  modified  by  the  court.  It  told  the  jury  that 
"  under  the  contract  in  evidence  the  plaintiff  was  bound  to  complete 
the  whole  plant  in  complete  working  order  and  condition  within  ninety 
days  from  the  8th  day  of  February,  a.  d.  1886,  unless  prevented  by  tin1 
<n-ts  or  fault  of  the  defendants  ;  and  if  the  evidence  shows  that  he  did 
not  do  it,  then  he  is  liable  in  this  action  to  the  defendants  for  any  dam- 
ages the  evidence  may  show  they  have  sustained  by  reason  of  such 
delay."     This  instruction  was  given  as  asked  by  the  defendants  except 

1  A  portion  of  the  opinion  irrelevant  to  the  subject  of  warranty  is  omitted. 


SECT.  III.]  UNDERWOOD   V.    WOLF.  709 

that  the  words  in  italics  were  added  by  the  court.  It  was  proper  to 
add  the  words  in  question  because  the  contract  required  the  defendants 
to  furnish  a  room,  foundations,  masonry,  carpenter  work,  and  all  steam 
and  feed  and  discharge  water  connections,  and  to  properly  insulate  the 
t'OOUlS  according  to  plans,  etc.,  and  if  delay  resulted  from  their  failure 
to  meet  these  requirements,  the  plaintiff  certainly  could  not  be  held 
responsible.  The  jury  found  in  his  favor  upon  this  question,  and  the 
judgment  of  the  Appellate  Court  forbids  us  to  disturb  the  finding. 

But  the  main  controversy  between  the  parties  arises  upon  the  follow- 
ing provision  in  the  contract :  "And  it  is  further  agreed  .  .  .  that  if 
the  machines  have  fulfilled  the  guaranties  made  for  them  in  this  agree- 
ment by  1st  of  September,  1886,  then  said  party  of  the  second  part 
[appellants]  shall  accept  the  same;  and  all  payments  to  lie  made  after 
the  payment  to  be  made  on  July  1,  1886,  shall  be  promissory  notes. 
dated  on  the  day  of  acceptance  of  the  plant  with  interest  after  ma- 
turity." The  defendants  refused  to  give  and  have  never  given  the 
notes  thus  provided  for. 

What  are  the  guaranties  which  were  to  be  fulfilled?  The  plaintiff. 
Wolf,  agreed  and  guaranteed,  that  the  machine  would  maintain  certain 
degrees  of  cooling  temperature  in  certain  rooms  in  the  packing  house, 
and  would  cool  the  rooms  within  a  certain  specified  time  :  that  it  would 
cool  a  certain  number  of  hogs  of  a  specified  weight  within  a  specified 
time  ;  that  the  power  required  to  drive  the  machinery  should  not  exceed 
a  certain  limit ;  that  the  fuel  required  to  produce  the  steam  to  do  the 
work  of  the  engines  should  not  exceed  a  certain  amount ;  that  the  loss 
of  ammonia  in  doing  the  work  should  not  exceed  a  certain  number  of 
pounds  ;  that  the  refrigerating  machines  should  be  of  the  best  material 
and  workmanship;  that  the  engine  should  be  capable  of  running  the 
packing-house  machinery  in  addition  to  the  compressors  ;  that  the  iron 
piping  to  be  furnished  should  be  such  as  would  be  necessary  to  carry 
and  convey  the  brine  required  for  the  proper  cooling  of  the  rooms.' 

In  considering  the  nature  of  these  guaranties,  it  is  unnecessary  to 
discuss  any  nice  distinctions  between  warranties  on  the  one  side,  and 
conditions  precedent  or  descriptions  of  the  property  on  the  other.  It  is 
sufficient  that  the  guaranties  are  treated  as  warranties,  and  their  non- 
fulfilment,  if  they  were  not  fulfilled,  will  be  regarded  as  a  breach  of 
warranty. 

Inasmuch  as  the  plant  was  to  be  completed  by  May  8,  188G.  and  was 
to  be  accepted  if  the  guaranties  were  fulfilled  by  September  1,  1886,  it 
is  manifest  that  the  period  between  these  two  dates  was  to  be  made 
use  of  for  the  purpose  of  testing  the  machines,  in  order  to  ascertain 
whether  or  not  they  were  such  as  they  were  guaranteed  to  be.  It  is 
also  sufficiently  manifest  that,  if  the  machines  failed  in  any  of  the  par- 
ticulars named  in  the  guaranties,  the  defects  which  would  thus  be  shown 
to  exist  must  be  regarded  as  [latent  defects  as  contradistinguished  from 
latent  defects. 

Where  there  is  a  sale  and  delivery  of  personal  property  in  pra 


710  UNDERWOOD   V.    WOLF.  [CHAP.  V. 

with  express  warranty,  and  the  property  turns  out  to  be  defective,  the 
vendee  may  receive  and  use  the  property  and  sue  for  damages  on  a 
breach  of  the  warranty,  or.  when  sued  for  the  purchase  price,  he  may 
recoup  such  damages  under  the  general  issue,  or  set  them  up  in  a  special 
plea  of  set-off.  This  is  a  well-settled  rule.  In  the  present  ease  the 
contract  is  executory  ;  the  title  to  the  property  did  not  vest  in  the  pur- 
chaser until  the  period  for  making  the  test  had  passed.  It  has  been  held 
in  some  States  that,  where  the  contract  is  thus  executory  and  a  time  is 
lixed  for  making  a  test,  the  acceptance  and  use  of  the  property,  after 
such  time  has  passed,  amount  to  a  waiver  of  the  right  to  claim  damtiges 
for  a  breach  of  the  warranty.  But  such  is  not  the  law  in  this  State. 
In  the  present  case,  the  evidence  tends  to  show  that  the  defendants 
took  possession  about  July  1,  1886,  of  the  machines,  placed  in  their 
packing-house  by  the  plaintiff,  and  had  been  using  the  same  up  to  the 
time  of  the  trial  of  the  cause  in  the  court  below.  The  chief  complaint 
of  the  appellants  is  that,  under  the  instructions  given  by  the  trial  court, 
the  jury  were  led  to  regard  the  acceptance  and  use  of  the  machinery  by 
the  defendants  as  an  abandonment  of  all  right  to  damages  for  breach 
of  the  warranties.  We  are  unable  to  regard  this  complaint  as  well 
founded. 

We  agree  with  the  counsel  for  appellants,  in  the  main,  in  their  view 
of  the  law.  We  think  that,  even  where  the  contract  is  executory,  the 
claim  for  damages  on  account  of  a  breach  of  the  warranty  will  survive 
the  acceptance  of  the  property.  Chitty  on  Contracts  (11th  ed.)  at 
page  652  says:  "  Where,  therefore,  the  vendor  of  a  warranted  article, 
whether  it  be  a  specific  chattel  or  not,  sues  for  the  price  or  value,  it  is 
competent  to  the  purchaser,  in  all  cases,  to  prove  the  breach  of  the 
warranty  in  reduction  of  damages,  and  the  sum  to  be  recovered  for  the 
price  of  the  article  will  be  reduced  by  so  much  as  the  article  was  dimin- 
ished in  value  by  non-compliance  with  the  warranty."  The  previous 
discussion  of  the  authorities  by  the  author,  before  arriving  at  the  con- 
clusion thus  announced,  shows  his  meaning  to  be,  that  the  breach  of 
the  warranty  may  be  proven  in  reduction  of  damages,  not  only  in  the 
case  of  the  sale  of  a  specific  chattel,  but  also  in  the  case  of  an  executory 
contract,  as,  for  example,  "where  an  article  is  ordered  from  a  manu- 
facturer who  contracts  that  it  shall  be  of  a  certain  quality,  or  fit  for  a 
certain  purpose."     Idem,  pages  647  to  652. 

In  Benjamin  on  Sales,  Vol.  2,  §  1356  (4th  Am.  ed.),  it  is  said  : 
•■  The  buyer  will  also  lose  his  right  of  returning  goods  delivered  to  him 
under  a  warranty  of  quality,  if  he  lias  shown  by  his  conduct  an  accept- 
ance of  them,  or  if  he  has  retained  them  a  longer  time  than  was  reason- 
able fur  a  trial,  or  has  consumed  more  than  was  necessary  for  testing 
them,  or  has  exercised  acts  of  ownership  as  by  offering  to  resell  them  ; 
all  of  which  acts  show  an  agreement  to  accept  the  goods,  but  do  not 
constitute  an  abandonment  of  his  remedy  by  cross-action  or  by  counter- 
claim in  the  vendor's  action  for  the  price."  If  the  retention  of  the 
property  by  the  buyer  for  a  longer  time  than  is  reasonable  for  a  trial 


SECT.  III.]  UNDERWOOD   V.   WOLF.  711 

does  not  waive  his  right  to  damages  in  an  action  by  the  vendor  for  the: 
purchase  price,  then  there  is  no  reason  why  his  retention  of  the  property 

for  a  longer  time  than  that  fixed  in  the  contract  for  a  trial  should  amount 
to  such  waiver. 

The  rule,  as  announced  by  these  text  writers,  has  been  held  to  be  the 
law  in  this  State. 

In  Babcock  v.  Trice,  18  111.  420,  there  was  an  executory  contract  for 
the  sale  and  delivery  of  corn  with  an  implied  warranty  that  it  should  be 
of  a  fair  and  merchantable  quality  ;  it  was  there  said :  M  It  is  true  that 
the  acceptance  of  corn  under  an  executory  contract,  with  opportunity  of 
inspection  at  the  time  of  delivery,  without  complaint,  may  raise  a  pre- 
sumption that  it  was  of  the  quality  contemplated  by  the  parties,  but  it 
will  not  preclude  the  party  from  showing  and  setting  up  the  actual  de- 
fect in  quality  and  condition.  ...  He  could,  .  .  .  under  the  general 
issue  prove  the  facts  out  of  which  the  warranty  arose,  the  breach  and 
his  damages  by  way  of  recoupment,"  etc.     Crabtree  v.  Kile,  21  111.  184. 

In  Strawn  '•.  Cogswell,  28  111.  457.  which  was  a  petition  fora  mechanic's 
lien  founded  upon  a  contract  to  furnish  iron  castings  for  a  grist  mill, 
and  where  the  defence  was  that  the  work  was  not  done  in  a  workman- 
like manner,  and  the  materials  were  not  of  the  quality  required  by  the 
contract,  we  said,  k-  Improvements  of  this  description  being  permanent 
and  fixed,  and  requiring  skill  to  test  their  sufficiency,  their  being  re- 
ceived and  put  to  use  is  not  such  an  acceptance  as  estops  the  party  from 
claiming  damages  for  their  being  defective." 

In  the  case  at  bar,  the  refrigerating  machines  were  so  built  into  the 
packing-house  and  so  much  a  part  thereof,  that  their  removal  could  only 
have  been  accomplished  with  difficulty,  and  perhaps  with  injury  to  the 
house  itself.  The  mere  use  of  them  by  the  defendants  after  September 
1,  1886,  might  not  of  itself  amount  to  such  an  acceptance  as  would  pre- 
clude them  from  claiming  damages  for  defects.  Hears  v.  Nichols,  41 
111.  207  ;  Peck  v.  Brewer,  48  111.  54. 

In  Doane  v.  Dunham,  65  111.  512,  and  same  case,  79  id.  131,  the  dis- 
tinction between  executory  and  executed  contracts  was  recognized,  and 
it  was  held  that,  in  the  former,  the  law  gives  the  buyer  a  reasonable 
time  for  making  an  examination  of  the  chattels  sold  :  that  it  is  for  the 
jury  to  determine  under  all  the  circumstances  what  is  such  reasonable 
time  ;  that  a  failure  to  make  the  examination  within  a  reasonable  time 
may  preclude  the  buyer  from  offering  the  property  back,  rescinding  the 
contract  and  avoiding  payment  on  that  ground,  but  will  not  deprive 
him  of  the  right  to  rely  upon  the  breach  of  the  warranty  for  damages. 
The  only  difference  between  that  case  and  the  one  at  bar  is.  that  there 
the  few?  gives  time  for  examination  or  test,  while  here  the  contract  fixes 
the  time.  The  same  rule,  however,  will  apply  to  both  cases.  Estep  v. 
Fenton,  66  111.  4 117. 

In  Owens  v.  Sturgcs,  67  111.  366,  it  was  held  that  where  the  contract 
is  unexecuted,  the  buyer  may  retain  the  property  and  show  the  war- 
ranty and  breach  to  reduce  the  recovery,  even  though  he  neglected  to 
return  the  property  upon  discovery  of  the  breach. 


712  UNDERWOOD    V.    WOLF.  [CHAP.  V. 

In  Prairie  Farmer  Co.  r.  Taylor,  69  111.  440,  the  contract  was  to  set 
up  a  printing-press  in  complete  running  order  in  the  defendant's  press- 
room within  seventy  days  from  the  acceptance  of  the  plaintiff's  proposi- 
tion, with  warranty  that  the  press  should  give  complete  satisfaction, 
and  granting  to  the  defendant  thirty  days'  time  from  the  setting  up  of 
the  press  to  decide  whether  the  warrant}'  was  good  ;  the  defendant  gave 
no  notice  of  its  intention  after  the  thirty  days  had  passed,  but  kept  the 
press;  it  was  held,  that  the  continued  use  of  the  press  indicated  the 
vesting  of  the  title  in  the  buyer,  and  that  the  defendant  could  recoup 
his  damages  from  the  contract  price  if  there  had  been  a  breach  of  the 
warranty. 

We  are,  therefore,  of  the  opinion  that  the  defendants  had  a  right,  in 
the  case  at  bar,  to  offset,  against  plaintiff's  claim  for  the  contract  price 
of  the  machines,  such  damages  as  they  were  able  to  show  that  they 
had  sustained  from  a  failure  to  fulfil  the  guaranties,  if  there  was  such 
failure. 

The  subject  presents  itself  under  two  aspects  :  first,  were  the  ma- 
chines such  as  they  were  warranted  to  be  in  the  contract?  second,  if 
they  were  not  such  as  they  were  warranted  to  be,  was  there  such  an 
acceptance  of  them  as  would  preclude  the  defendants  from  insisting 
upon  damages  for  the  breach? 

The  case  seems  to  have  been  tried  mainly  upon  the  theory  suggested 
by  the  first  question.  The  plaintiff  introduced  proof  to  show  that  the 
machines  did  fulfil  the  guaranties,  while  the  defendants  produced  evi- 
dence to  show  that  they  did  not  fulfil  the  guaranties.  In  other  words, 
the  question  most  prominently  presented  to  the  minds  of  the  jury  was, 
not  whether  there  had  been  a  waiver  of  existing  defects,  but  whether 
or  not  any  defects  actually  existed.  Upon  the  latter  subject  they  were 
most  fully-  and  elaborately  instructed  by  the  court.  The  court  gave 
nine  or  ten  instructions  asked  by  the  defendants,  authorizing  the  jury 
to  give  them  damages  for  the  breach  of  the  warranties  if  the  jury  should 
find  from  the  evidence  that  the  machines  did  not  fulfil  the  guaranties. 
These  instructions  all  adopt  and  express  the  theory  of  the  law  con- 
tended for  b}'  the  counsel  for  appellants.  They  announce  over  and 
over  again,  that  the  defendants  were  entitled  to  damages  if  the  ma- 
chines were  not  what  they  were  warranted  to  be  as  to  cooling  capacity 
for  rooms  and  hogs,  as  to  amount  of  power  and  fuel  and  piping,  etc., 
and  as  to  every  other  particular  specified  in  the  contract.  The  jury  by 
their  verdict  and  the  Appellate  Court  by  their  judgment  of  affirmance 
have  found  the  fact  to  be  that  the  defendants  had  not  suffered  the  dam- 
ages claimed  by  them.  Hence,  such  fact  is  settled  beyond  our  power 
to  change  it. 

But  counsel  say,  that  the  instructions  given  for  the  defendants, 
although  announcing  a  correct  rule  of  law,  were  contradicted  by  the 
instructions  given  for  the  plaintiff,  and  that  the  jury  were  left  at  liberty 
to  follow  either  of  two  sets  of  contradictory  instructions,  unenlightened 
as  to  what  the  law  really  was.     We  do  uot  think  that  the  instructions 


SECT.  III.]  UNDERWOOD   V.    WOLF.  713 

taken  as  a  whole  can  be  regarded  as  laying  down  contradictory  prin- 
ciples. Certainly  no  instruction  given  for  the  plaintiff  states  that  the 
defendants  were  not  entitled  to  damages  for  breach  of  the  warranties. 
On  the  contrary,  several  of  them  expressly  recognize  the  right  of  the 
defendants  to  claim  damages. 

The  fourth  instruction  given  for  the  plaintiff  told  the  jury,  that,  so 
far  as  the  defendants  relied  upon  a  breach  of  warranty  as  a  defence,  or 
by  way  of  set-off,  the  burden  of  proof  was  upon  them  "as  to  such 
breach  and  as  to  any  damages,  if  any,  arising  therefrom,  and  unless 
they  prove  such  breach  and  damages  as  alleged  by  them  by  a  prepon- 
derance of  the  evidence,  then  they  will  not  be  entitled  to  any  benefit 
therefrom  in  this  suit."  This  language  most  clearly  conveys  the  idea 
that  if  the  defendants  did  prove  the  breach  and  damages  by  a  prepon- 
derance of  the  evidence,  they  would  be  entitled  to  the  benefit  thereof. 

The  fifth  of  plaintiff's  instructions  told  the  jury  that  damages  for 
breach  of  warranty  of  machinery  did  not  include  probable  profits  or 
prospective  gains,  thereby  implying  that  such  damages  as  did  not  in- 
clude probable  profits  or  prospective  gains  might  be  recovered. 

The  first  instruction  given  for  the  plaintiff,  in  reciting  the  conditions 
upon  which  the  plaintiff'  would  be  entitled  to  recover  interest  upon  the 
notes,  uses  these  words:  "The  court  instructs  the  jury,  that,  if  they 
believe  from  the  evidence  that  the  plaintiff  has  made  out  his  case  as  by 
him  alleged  in  his  declaration,"  etc.  The  plaintiff  in  his  declaration 
alleges  that  he  has  furnished  machines,  tanks,  engine,  piping,  etc.,  of 
such  description,  quality,  and  capacity  as  the  contract  calls  for,  and  that 
he  has  kept  the  contract  in  all  things  on  his  part,  and  performed  all  the 
covenants  therein  within  the  time  and  in  the  manner  therein  provided. 
In  other  words,  the  first  instruction  requires  the  jury  to  find,  as  a  con- 
dition of  recovery,  that  the  plaintiff'  has  fulfilled  all  the  guaranties 
above  specified.  This  requirement  negatives  the  idea  that  the  defend- 
ants, by  acceptance  or  other  acts,  had  waived  thT'ir  right  to  claim  dam- 
ages for  a  non-fulfilment  of  the  guaranties. 

The  obscurity  which  seems  to  exist  in  one  or  two  of  the  instructions 
given  for  the  plaintiff,  will  disappear  upon  considering  the  true  mean- 
ing of  some  of  the  terms  therein  used. 

Where  the  contract  for  the  sale  of  the  goods  is  an  executory  one, 
and  the  time  for  examination,  whether  fixed  by  the  contract  or  allowed 
by  the  law,  has  passed,  the  buyer  may  refuse  to  accept  the  goods  and 
may  return  them,  or  he  may  accept  them  and  sue  for  breach  of  war- 
ranty, or  rely  upon  the  damages  for  such  breach  in  reductiou  of  the 
contract  price.  Benjamin  on  Sales,  1th  Am.  ed.,  vol.  2.  j  j  1.".  10,  1.".  17, 
1348,  etc. ;  Doane  v.  Dunham,  supra;  Owens  v.  Sturges,  supra; 
Mears  r.  Nichols,  supra.  If  he  desires  to  rescind  the  contract  and 
return  the  goods,  he  must  offer  them  back  as  soon  as  he  discovers  the 
breach,  or  after  he  has  had  a  reasonable  time  for  examination  :  such 
righl  to  rescind  and  return  is  waived  by  retaining  ami  continuing  to 
use  the  goods  longer  than  is  necessary  for  a  trial  of  them. 


714  UNDERWOOD    V.    WOLF.  [CHAJP.  V. 

There  is  some  evidence  tending  to  show  that  Viles,  one  of  the  defend- 
ants, requested  the  plaintiff  to  remove  the  machine.  Such  request  if 
made  would  indicate  an  intention  on  the  part  of  the  defendants  not,  to 
accept  the  machine,  but  to  rescind  the  contract.  Hence,  no  harm  was 
done  by  giving  the  plaintiff's  eighth  instruction.  That  instruction 
merely  told  the  jury  that  the  right  of  the  buyer  to  reject  the  article  sold 
to  him,  or,  in  other  words,  his  right  to  return  it  and  rescind  the  con- 
tract, might  be  waived  or  lost  by  acts  inconsistent  with  the  ownership 
of  the  vendor  or  by  the  continued  use  of  the  article  after  knowledge  of 
the  defects.  But  the  impression  was  in  no  way  conveyed  to  the  minds 
of  the  jury  that,  if  defendants  elected  to  accept  the  machine  and  not  to 
return  it,  their  right  to  offset  damages  for  breach  of  warranty  against 
the  contract  price  would  be  waived  b}-  such  acts  and  such  continued 
use  as  are  specified  in  the  instruction.  Waiver  of  the  right  to  return 
the  machine  is  one  thing  ;  waiver  of  the  right  to  claim  damages  is 
another  and  entirely  different  thing.  The  third  instruction  given  for 
the  defendants  expressly  told  the  jury  that  "  the  defendants  were  not 
bound  to  return  the  said  machines  and  apparatus,  if  found  not  to  be 
according  to  the  warranty,  but  might  keep  the  same,  and,  when  sued 
for  the  price,  set  up  such  warranty  and  the  breach  thereof  as  a  defence, 
and,  if  proven,  be  allowed  the  amount  of  damages  they  have  sustained 
by  reason  of  the  breach  of  the  warranty.'' 

It  is  also  to  be  observed  that  the  word  "  acceptance,"  as  used  in 
reference  to  the  subject-matter  of  this  controvers}',  has  two  significa- 
tions. Where  goods  are  sold  under  an  executory  contract,  there  may 
be  an  acceptance  of  them  in  full  discharge  of  the  contract,  or  there  may 
be  an  acceptance  of  them  in  such  sense  that  the  buyer  retains  and  uses 
them  and  becomes  vested  with  the  title  and  ownership  of  them,  but  re- 
serves the  right  to  claim  damages  for  their  defects.  This  distinction  is 
recognized  in  Estep  v.  Fenton,  supra,  and  in  Mears  v.  Nichols,  siqira. 
It  is  also  recognized  in  the  fourth  instruction  given  for  the  defendants 
in  this  case,  which  told  the  jury  that  '■*  the  defendants  are  not  prevented 
from  setting  off  the  damages  they  may  have  sustained  by  reason  of  the 
performance  of  the  contract  in  a  manner  different  from  the  agreement 
merely  because  they  may  have  done  acts  amounting  to  an  acceptance 
of  the  machine.  They  could  only  be  prevented  from  setting  off  such 
damages  so  sustained  in  case  they  had  accepted  the  machine  in  full  dis- 
charge of  the  contract."  So,  also,  the  seventh  instruction  given  for  the 
plaintiff  contains  these  words:  "  If  the  jury  shall  believe  from  the  evi- 
dence  that,  prior  to  the  bringing  of  this  suit,  defendants  did  accept  said 
machine  in  full  discharge  of  the  contract,  then  the  jury  are  instructed 
thai  defendants  are  not  entitled  to  set  off  or  recover  in  this  action  any 
damages  resulting  to  them,  if  any,  by  reason  of  plaintiffs  failing  to 
meel  the  guaranties  made  by  him  in  said  contract."  Under  these  and 
other  instructions  that  were  given,  the  jury  could  not  have  been  led  to 
believe,  thai  the  right  of  the  defendants  to  claim  damages  for  breach  of 
the  warranties  was  cut  off  or  waived  by  any  other  kind  of  acceptance 
than  an  acceptance  in  full  discharge  of  the  contract. 


SECT.  III.]  UNHEEWO0D    V.   WOLF.  715 

As  to  the  second  and  sixth  instructions  and  the  first  part  of  the 
seventh  instruction  given  for  the  plaintiff,  it  may  he  said  of  them  as 
was  said  in  Village  of  Sheridan  v.  Hibbavd,  110  111.  307:  "It  is  an 
error  to  suppose  that  every  instruction  asked  by  a  plaintiff  must,  with- 
out regard  to  the  office  or  purpose  it  is  intended  to  subserve,  have 
embodied  in  it  every  fact  or  element  essential  to  sustain  the  plaintiff's 
action,  nor  is  it  necessary  to  negative  matters  of  mere  defence. 

The  second  instruction  simply  stated  the  amount  which  plaintiff 
would  he  entitled  to  by  the  terms  of  the  contract,  if  lie  was  entitled  to 
recover  at  all  ;  it  by  no  means  excluded  or  negatived  the  right  of  the 
defendants  to  offset  against  such  amount  the  damages  which  they  might 
succeed  in  proving, 

The  sixth  instruction  and  the  first  sentence  of  the  seventh  intended 
to  call  the  attention  of  the  jury  to  the  time  allowed  to  the  defendants  for 
the  purpose  of  testing  the  machine.  Therein  the  jury  were  told  that,  if 
the  time  for  making  the  test,  which  b}-  the  terms  of  the  contract  expired 
on  Sept.  1,  1886,  was  extended  beyond  that  date  by  arrangement 
between  the  parties,  then  whatever  the  defendants  were  required  to  do 
by  Sept.  1,  1886,  either  in  the  matter  of  rejecting  the  machine,  or  of 
accepting  it  —  whether  suda  acceptance  should  be  in  full  discharge  of 
the  contract,  or  with  a  reservation  of  the  right  to  offset  damages  for 
breach  of  the  warranties  —  they  might  do  at  the  expiration  of  the  period 
as  thus  extended.  There  was  nothing  in  the  language  used  that  could 
by  any  possibility  have  been  construed  as  a  denial  of  the  right  to  claim 
damages  for  a  failure  to  fulfil  the  guaranties. 

We  perceive  no  such  error  in  the  record  as  will  justify  us  in  reversing 
the  judgment. 

The  judgment  of  the  Appellate  Court  is  affirmed. 

Judgment  affirmed} 

1  In  English  v.  Spokane  Commission  Co.,  57  Fed.  Rep.  451,  45G,  Hawley,  J  ,  deliver- 
ing the  judgment  of  the  Circuit  Court  of  Appeals  for  the  ninth  circuit,  said  :  "  There 
has  heeii  some  controversy  in  the  courts  as  to  the  right  of  the  purchaser  to  accept  the 
goods  and  rely  upon  the  warranty,  some  of  the  authorities  holding  that  where  the  sale 
is  executory,  and  the  goods,  upon  arrival  at  the  place  of  delivery,  are  found  upou  exam- 
ination to  be  unsound,  the  purchaser  must  immediately  return  them  to  the  vendor,  or 
give  him  notice  to  take  them  back,  and  thereby  rescind  the  contract,  or  he  will  he 
presumed  to  have  acquiesced  in  the  quality  of  the  goods.  But  the  great  weight  of 
authority,  as'well  as  reason,  is  now,  we  think,  well  settled  that,  in  cases  of  this  kind 
and  character,  if  the  goods  upon  arrival  at  the  place  of  delivery  are  found  to  be  unmer- 
chantable in  whole  or  in  part,  the  vendee  has  the  option  either  to  reject  them  or 
receive  them  and  rely  upon  the  warranty  ;  and,  if  there  has  been  no  waiver  of  the 
right,  he  may  bring  an  action  against  the  vendor  to  recover  the  damages  for  a  breach 
of  the  warranty,  or  set  up  a  counterclaim  for  such  damages  in  an  action  brought  by  the 
vendor  [or  the  purchase  price  of  the  goods  2  Schouler,  l'ers.  Prop  §§  581- 
2  Benj.  Sales,  §  977,  note  29etseq.;  Id.  £§  1353,  1354,  1356,  note  11;  Babcock  r. 
Trice,  18  111.  420;  Best  v.  Flint,  58  Vt.  543,  5  Atl.  Rep.  192  ;  Polbemus  v.  Ileinian.  45 
Cal  573;  liege  v.  Newsom,  96  Ind.  431  ;  Lewis  v.  Rountree,  78  X.  C.  323,  English 
r.  Commission  Co.,  4S  Fed.  Rep.  197,  and  other  authorities  there  cited." 


716  CLAYTON   V.    ANDEEWS.  [CHAP.  VI. 


CHAPTER   VI. 
STATUTE    OF    FRAUDS. 

[29  Car.  II.  c.  3,  §  17.] 

"  And  be  it  further  enacted  by  the  authority  aforesaid,  That  from 
and  after  the  said  four  and  twentieth  day  of  June  [a.  d.  1677]  no  eon- 
tract  for  the  sale  of  any  goods,  wares,  and  merchandises,  for  the  price 
of  ten  pounds  sterling  or  upwards,  shall  be  allowed  to  be  good,  except 
the  buyer  shall  accept  part  of  the  goods  so  sold,  and  actually  receive 
the  same,  or  give  something  in  earnest  to  biud  the  bargain  or  in  part 
of  payment,  or  that  some  note  or  memorandum  in  writing  of  the  said 
bargain  be  made  and  signed  by  the  parties  to  be  charged  by  such 
contract,  or  their  agents  thereunto  lawfully  authorized." 


SECTION   I. 

"  Contract  for  the  Sale  of." 

CLAYTON   the   Younger   v.   ANDREWS. 
In  the  King's  Bench,  June  23,  1767. 

[Reported  in  4  Burrow,  2101.] 

Assumpsit,  for  non-performance  of  a  contract  for  sale  of  corn. 
Xoa  assumpsit  pleaded.  On  a  trial  at  Sussex  assizes  a  verdict  was 
found  for  the  plaintiff,  subject  to  the  opinion  of  this  court  upon  the 
following  case  and  question  :  — 

The  defendant,  on  13th  October,  1776,  agreed  to  deliver  one  load 
and  a  half  of  wheat  to  the  plaintiff,  within  three  weeks  or  a  mouth 
from  the  said  agreement,  at  the  rate  of  twelve  guineas  a  ltuxd,  to  be 
paid  on  delivery:  which  wheat  was  understood  by  both  parties  to  be 
at  that  time  unthrashed.  No  part  of  the  said  wheat  so  sold  was  deliv- 
ered, nor  any  money  paid  by  way  of  earnest  for  the  same,  nor  any 
memorandum  thereof  made  in  writing.  And  "  Whether  this  agree- 
ment be  within  the  Statute  of  Frauds,"  is  the  question. 

Mr.  Harvey,  for  the  plaintiff. 

Mr.  BurreU,  for  the  defendant. 

.Mk.  Justice  Yates.  That  clause  of  the  statute  relates  only  to 
executed  contracts.  Here,  wheat  was  sold,  to  be  delivered  at  a 
future  time.     It  was  unthrashed  at  the   time  when  the  contract  was 


SECT.  I.]  RONDEAU   V.    WYATT.  717 

made :  therefore  it  could  not  be  delivered  at  that  time.  The  case 
mentioned  out  of  .Sir  John   Strange  is  in  point. 

Mr.  Justice  Aston  concurred,  and  added  that  the  case  in  1  Str. 
506  has  always  been  considered  as  an  authority  in  point  upon  ques- 
tions of  this  kind. 

Per  Curiam,  unanimously,  ordered  that  the  postea  be  delivered  to 
the  plaintiff  or  his  attorney. 


EONDEAU    v.    WYATT. 
In  the  Common  Pleas,  June  27,   1792. 

[Reported  in  2  Henry  DIackslone,  63.] 

Tins  was  an  action  on  the  case  for  the  non-performance  of  a  special 
agreement. 

At  the  trial,  which  came  on  before  Lord  Loughborough  at  Guildhall, 
at  the  sittings  after  last  Michaelmas  term,  it  appeared  that  the  defend- 
ant, who  was  one  of  the  proprietors  of  the  Albion  Mill,  had  entered 
into  a  verbal  agreement  to  sell  and  deliver  three  thousand  sacks  of 
flour  to  the  plaintiff,  to  be  put  in  sacks  which  the  plaintiff  was  to  send 
to  the  mill,  and  shipped  on  board  vessels  to  be  provided  by  him  in  the 
river  Thames. 

The  defendant  having  refused  to  perform  the  contract,  the  plaintiff 
hied  a  bill  in  chancery  for  a  discovery  in  aid  of  an  action  at  law.  In 
his  answer  to  the  bill  the  defendant  admitted  the  agreement,  but 
pleaded  the  Statute  of  Frauds.  That  plea  being  overruled,  the  present 
action  was  brought,  in  which  the  plaintiff  obtained  a  verdict  contrary 
to  the  opinion  of  Lord  Loughborough,  who  thought,  because  the  con- 
tract seemed  to  him  to  be  within  the  Statute  of  Frauds,  the  plaintiff 
was  not  entitled  to  recover.  And  now,  a  rule  having  been  granted  to 
show  cause  why  the  verdict  should  not  be  set  aside  and  a  nonsuit 
entered,  — 

Adair  and  Bond,  Serjts.,  showed  cause. 

Lawrence  and  Marshall,  Serjts.,  in  support  of  the  rule. 

Cur.  adv.  vidt. 

On  this  day  Lord  Loughborough,  after  stating  the  facts  of  the 
case,  pronounced  the  judgment  of  the  court 1  to  the  following  effect  : 

The  only  point  to  be  decided  is  that  which  arises  on  the  Statute  of 
Frauds  ;  and  we  who  are  now  in  court  think  that  the  objection  made 
on  that  statute  is  well  grounded,  and  therefore  that  the  plaintiff  ought 

1  In  which  his  Lordship,  Mr.  Justice  O.orr.n,  and  Mr.  Justice  Heath  were  unani- 
mous But  his  Lordship  mentioned  :i  few  days  before  that  Mr.  Justice  Wilson-,  who 
was  now  sitting  in  chancery  as  one  of  the  lords  commissioners  of  the  great  seal,  had 
declared  himself  to  be  of  a  different  opinion. 


71 S  GARBUTT   V.    WATSON.  [CHAP.  VI. 

to  be  nonsuited.  It  was  said  in  the  argument  that  the  statute  does  not 
extend  to  cases  of  executory  contracts.  To  try  the  validity  of  this 
objection,  it  will  be  necessary  to  advert  to  that  clause1  of  the  statute 
on  which  the  question  arises,  and  which  directs  [quoting  it].  Now,  it 
is  singular  that  an  idea  could  ever  prevail  that  this  section  of  the 
statute  was  only  applicable  to  cases  where  the  bargain  was  immediate  ; 
for  it  seems  plain  from  the  words  made  use  of  that  it  was  meant  to 
regulate  executory  as  well  as  other  contracts.  The  words  are,  "  No 
contract  for  the  sale  of  any  goods,"  &c.  And  indeed  it  seems  that 
this  provision  of  the  statute  would  not  be  of  much  use  unless  it  were 
to  extend  to  executory  contracts  ;  for  it  is  from  bargains  to  be  com- 
pleted at  a  future  period  that  the  uncertainty  and  confusion  will 
probably  arise  which  the  statute  was  designed  to  prevent.  The  case 
of  Simon  v.  Metivier,  3  Burr.  1921,  was  decided  on  the  ground  that  the 
auctioneer  was  the  agent  as  well  for  the  defendant  as  the  plaintiff,  and 
therefore  that  the  contract  was  sufficiently  reduced  into  writing.  The 
case  of  Towers  v.  Sir  John  Osborne,  1  Strange,  506,  was  plainly  out 
of  the  statute,  not  because  it  was  an  executory  contract,  as  it  has  been 
said,  but  because  it  was  for  work  and  labor  to  be  done,  and  materials 
and  other  necessary  things  to  be  found?  which  is  different  from  a  mere 
contract  of  sale,  to  which  species  of  contract  alone  the  statute  is  appli- 
cable. In  Clayton  v.  Andrews,  which  \yas  on  an  agreement  to  deliver 
corn  at  a  future  period,  there  was  also  some  work  to  be  performed,  for 
it  was  necessary  that  the  corn  should  be  thrashed  before  the  delivery. 
This  perhaps  may  seem  to  be  a  very  nice  distinction,  but  still  the 
work  to  be  performed  in  thrashing  made,  though  in  a  small  degree,  a 
part  of  the  contract.  Rale  absolute  to  enter  a  nonsuit.'2 


GARBUTT   and    Another   v.    WATSON. 

In  the  King's  Bench,  April  26,  1822. 

[Reported  in  5  Barneivall  $•  Alderson,  613.] 

Assumpsit  for  the  non-performance  by  the  defendant  of  a  special 
agreement  relating  to  the  sale  of  100  sacks  of  flour.  Plea,  general 
issue.     At  the  trial  at  the  last  assizes  for  the  county  of  York,  before 

1  Sect.  17. 

2  In  Blackburn  on  Rale,  p.  7,  after  citing  Towers  v.  Osborne,  Clayton  v.  Andrews, 
and  Groves  v.  Buck,  3  M.  &  S.  178,  the  author  says:  "The  principle  of  those  cases,  de- 
cided by  great  judges,  including  Pratt,  0.  J.,  Lord  Mansfield,  and  Lord  Ellenborough, 
seems  to  have  been  either  that  the  word  '  bargain  '  in  the  statute  must  lie  taken  in  the 
Btricl  tcrimical  sense,  so  as  to  exclude  all  executor}  contracts  not  amounting  to  a  bar- 
gain am!  sale,  or  else  that,  as  the  statute  said  the  contract  was  to  he  good  if  the  buyer 
'  accepted  and  actually  received  '  part  of  the  goods,  it  could  only  he  meant  to  apply  to 
contracts  where  it  was  possihle  to  accept  and  receive  part  of  the  goods.  It  is  clear 
that,  the  buyer  could  neither  accept  nor  receive  the  chariot  befor;  it  was  built,  the  com 
before  it  was  thrashed,  or  the  oak  pins  before  they  were  cut  out." 


SECT.  I.]  CLAY   V.    YATES.  719 

Barley,  J.,  it  appeared  that  the  plaintiffs,  who  were  millers  near  Hull, 
on  the  22d  of  October,  1821,  made  an  agreement  with  the  defendant, 
a  corn  merchant,  for  the  sale  of  100  sacks  of  flour  at  50*.  per  sack,  to 
be  got  ready  by  the  plaintiffs  to  ship  to  the  defendant's  order  free  on 
board  at  Hull  within  three  weeks,  to  be  paid  for  by  a  bill  on  London 
at  two  months'  date  on  receipt  of  invoice.  There  was  do  memorandum 
in  writing  of  the  contract,  nor  any  earnest  paid.  The  flour  at  the  time 
of  the  bargain  was  not  prepared,  so  as  to  be  capable  of  being  immedi- 
ately delivered  to  the  defendant.  The  learned  judge  at  the  trial  was 
of  opinion  that  the  case  fell  within  the  17th  section  of  the  Statute  of 
Frauds,  and  the  plaintiffs  were  accordingly  nonsuited.     And  now 

Scarlett,  by  leave,  moved  to  enter  a  verdict  for  the  plaintiff. 

Abbott,  C.  J.  In  Towers  v.  Osborne  the  chariot  which  was  ordered 
to  be  made  would  never  but  for  that  order  have  had  any  existence. 
But  here  the  plaintiffs  were  proceeding  to  grind  the  flour  for  the  pur- 
poses of  general  sale,  and  sold  this  quantity  to  the  defendant  as  part  of 
their  general  stock.  The  distinction  is  indeed  somewhat  nice,  but  the 
case  of  Towers  v.  Osborne  is  an  extreme  case,  and  ought  not  to  be 
carried  further.  1  think  this  case  was  rightly  decided,  the  contract 
being  one  for  the  sale  of  goods,  and  falling  within  the  17th  section  of 
the  Statute  of  Frauds. 

Bayley,  J.  The  nearest  case  to  this  is  Clayton  v.  Andrews.  But 
that  decision  was,  as  it  seems  to  me,  corrected  by  Rondeau  v.  Wyatt. 
This  was  substantially  a  contract  for  the  sale  of  flour,  and  it  seems  to 
me  immaterial  whether  the  flour  was  at  the  time  ground  or  not.  The 
question  is,  whether  this  was  a  contract  for  goods,  or  for  work  and 
labor  and  materials  found.  I  think  it  was  the  former;  and  if  so,  it  falls 
within  the  Statute  of  Frauds. 

Holroyd,  J.  I  am  of  the  same  opinion.  I  cannot  agree  with  the 
judgment  of  the  court  in  Clayton  v.  Andrews.  This  was  a  contract  for 
the  sale  of  goods,  and  therefore  the  verdict  is  right. 

Best,  J.,  concurred.  Bide  refused. 


CLAY   v.   YATES. 

In  the  Exchequer,  May  3,  1856. 

[Reported  m  1  Hurlstone  §•  Norman,  73] 

Declaration*  for  goods  sold  and  delivered,  and  work  and  labor  and 
materials.     Plea,  never  indebted. 

At  the  trial  before  Pollock.  C  B.,  at  the  London  sittings,  after  last 
Hilary  term,  it  appeared  that  the  defendant  applied  to  the  plaintiff,  a 
printer,  to  print  a  second  edition  of  a  treatise  called  "  Military  Tar 
This  edition  was  to  contain  a  dedication  to  Sir  AVilliam  Napier.     The 
plaintiff    verbally  agreed  to   find  the  paper  and  print   500  copies   for 


720  CLAY    V.    YATES.  [CHAP.  VI. 

£4  10s.  a  sheet.  At  the  time  the  plaintiff  commenced  printing  the 
treatise  the  dedication  was  not  written,  but  it  was  afterwards  sent  to 
him,  and  the  type  set  up  without  his  having  any  knowledge  of  its  con- 
tents. After  the  proof-sheets  of  the  dedication  had  been  revised  b}' 
the  defendant  and  returned  to  the  plaintiff,  he  for  the  first  time  discov- 
ered that  the  dedication  contained  libellous  matter,  and  he  refused  to 
complete  the  printing  of  it.  The  defendant  would  not  pa}*  for  the 
treatise  without  the  dedication,  whereupon  the  present  action  was 
brought  to  recover  for  printing  the  treatise. 

It  was  objected,  on  behalf  of  the  defendant:  first,  that  this  was  a 
contract  for  the  sale  of  goods  within  the  17th  section  of  the  Statute  of 
Frauds,  29  Car.  2,  c.  3,  as  extended  by  9  Geo.  4,  c.  14,  §  7;1  sec- 
ondly,  that  the  contract  was  an  entire  one,  viz.,  to  print  the  treatise 
and  the  dedication,  and  that  the  plaintiff  having  refused  to  print  the 
dedication  was  not  entitled  to  recover  in  respect  of  the  treatise.  The 
learned  Judge  left  it  to  the  jury  to  say :  first,  whether  work  and  labor 
was  the  essence  of  the  contract,  and  the  materials  merely  ancillary  ; 
secondly,  whether  the  dedication  was  libellous.  The  jury  found  both 
questions  in  the  affirmative,  whereupon  a  verdict  was  entered  for  the 
plaintiff,  leave  being  reserved  to  the  defendant  [to  move]  to  enter  a 
verdict  for  him. 

Montague  Smith,  and  Hannen  now  showed  cause. 

Quain,  in  support  of  the  rule. 

Pollock,  C.  B.  The  rule  must  be  discharged.  The  first  question  is, 
whether  this  is  a  contract  for  the  sale  of  goods  within  the  17th  section 
of  the  Statute  of  Frauds,  and  I  am  of  opinion  that  it  is  properly  a 
contract  for  work,  labor,  and  materials.  It  appears  from  Chitty  on 
Pleading  (vol.  i.  p.  359;  vol.  ii.  pp.  61,  62,  7th  ed.),  that  a  count  for 
work,  labor,  and  materials  may  be  resorted  to  by  farriers,  medical  men, 

1  "  And  whereas  by  an  act  passed  in  England  in  the  twenty-ninth  year  of  the  reign 
of  King  (liarlcs  the  Second,  intituled  An  Act  for  the  Prevention  of  Frauds  ami  Perju- 
ries, it  is,  among  other  things,  enacted,  that  from  and  after  the  twenty-fourth  day  of 
June,  one  thousand  six  hundred  and  seventy-seven,  no  contract  for  the  sale  of  any 
goods,  wares,  and  merchandises,  for  the  price  of  ten  pounds  sterling  or  upwards,  shall 
be  allowed  to  be  good,  except  the  buyer  shall  accept  part  of  the  goods  so  Bold,  and 
actually  receive  the  same,  or  give  something  in  earnest  to  bind  the  bargain  or  in  part 
of  payment,  or  that  some  note  or  memorandum  in  writing  of  the  said  bargain  be  made 
and  signed  by  the  parties  to  be  charged  by  such  contract,  or  their  agents  thereunto 
lawfully  authorized  :  And  whereas  a  similar  enactment  is  contained  in  an  act  passed 
in  Ireland,  in  the  seventh  year  of  the  reign  of  King  William  the  Third  :  And  whereas 
been  held  that  the  said  recited  enactments  do  not  extend  to  certain  executory 
contracts  for  the  sale  of  goods,  which  nevertheless  are  within  the  mischief  thereby 
intended  to  be  remedied;  and  it  is  expedient  to  extend  the  said  enactments  'to  such 
utory  contracts:'  —  Be  it  enacted  that  the  said  enactments  shall  extend  to  all 
contracts  for  the  sale  of  goods  of  the  value  of  ten  pounds  sterling  and  upwards, 
notwithstanding  the  goods  may  be  intended  to  be  delivered  at  some  future  time,  or 
may  nol  at  the  time  of  such  contract  be  actually  made,  procured,  or  provided,  <>r  fit 
or  ready  for  delivery,  or  some  act  maybe  requisite  for  the  making  or  completing 
thereof,  or  rendering  the  same  fit  for  delivery."  —  Lord  Tenterden's  Act,  9  Geo.  [V. 
c.  14,  §  7. 


SECT.  I.]  CLAY   V.    YATES.  721 

and  surveyors,  and  that  such  is  the  form  in  which  the)-  are  in  the  habit 
of  suing.  Against  the  opinion  of  Barley,  J.,  in  Atkinson  v.  Bell,  we 
may  set  off  the  opinions  of  Maule,  .).,  and  Erie,  J.,  in  the  case  of 
Grafton  v.  Arinitage,  and  then  we  have  to  decide  the  point  as  if  it  were 
quite  new  and  without  authority.  It  may  happen  that  part  of  the  mate- 
rials is  found  by  the  person  for  whom  the  work  is  done,  and  part  by  the 
person  who  does  the  work;  for  instance,  the  paper  for  printing  may  be 
found  by  the  one  party,  while  the  ink  is  found  by  the  printer.  In  such 
cases  it  seems  to  me  that  the  true  criterion  is,  whether  work  is  the 
essence  of  the  contract,  or  whether  it  is  the  materials  supplied.  My 
impression  is,  that  in  the  case  of  a  work  of  art,  whether  in  gold,  silver, 
marble,  or  plaster,  where  the  application  of  skill  and  labor  is  of  the 
highest  description,  and  the  material  is  of  no  importance  as  compared 
with  the  labor,  the  price  may  be  recovered  as  work,  labor,  and  mate- 
rials. No  doubt  it  is  a  chattel  that  was  bargained  for,  and,  it  deliv 
ered,  might  be  recovered  as  goods  sold  and  delivered  ;  still  it  may  also 
be  recovered  as  work,  labor,  and  materials.  Therefore  it  appears  to  me 
that  this  is  properly  a  contract  for  work,  labor,  and  materials.  I  am 
inclined  to  think  that  it  is  only  where  the  bargain  is  for  goods  thereafter 
to  be  made,  and  not  where  it  is  a  mixed  contract  for  work  and  materials 
to  be  found,  that  Lord  Tenterden's  Act,  9  Geo.  4,  c.  14,  applies  ;  and 
the  reason  why  no  cases  on  this  subject  are  found  in  the  books  is,  that 
before  Lord  Tenterden's  Act  passed  the  Statute  of  Frauds  did  not  apply 
to  the  case  of  goods  not  actually  made,  or  fit  for  delivery.  I  think 
therefore  that  the  objection  does  not  arise. 

Then  with  respect  to  the  other  point,  I  entertain  no  doubt.  I  told 
the  jury  that  if  the  plaintiff  agreed  to  print  the  dedication  and  the 
treatise,  and  so  undertook  to  print  that  which  he  knew  to  be  libellous, 
and  afterwards  said  that  he  would  not  print  both  ;  in  such  case  he 
could  not  recover.  I  think  his  right  to  recover  rests  entirely  on  this 
ground,  that  he  had  been  furnished  with  the  treatise  without  the  dedi- 
cation. The  dedication  was  afterwards  sent,  but  he  had  no  opportu- 
nity of  reading  it  until  after  it  was  printed  ;  he  then  discovered  that  it 
was  libellous,  and  refused  to  permit  the  defendant  to  have  it.  I  think 
that  if  a  contract  is  bona  fide  entered  into  by  a  printer  to  print  a  work 
consisting  of  two  parts,  and  at  the  time  he  enters  into  the  contract  he 
has  no  means  of  knowing  that  one  part  is  unlawful,  and  he  executes 
both,  but  afterwards  suppresses  that  which  is  unlawful,  there  is  an 
implied  undertaking  on  the  part  of  the  person  employing  him  to  pay 
for  so  much  of  the  work  as  is  lawful.  For  these  reasons  I  think  that 
the  rule  ought  to  be  discharged. 

M  \ktin,  B.  I  am  of  the  same  opinion.  There  are  three  matters  ot 
charge  well  known  to  the  law,  viz.,  for  labor  simply,  for  labor  and 
materials,  and  for  goods  sold  and  delivered.  Now  every  case  must  be 
judged  of  by  itself;  and  what  is  the  present  case?  The  defendant, 
having  a  manuscript,  takes  it  to  a  printer  to  print  for  him.  Then  what 
does  he  intend  shall  be  done  ?     He  intends  that  the  printer  shall  use 

46 


722  LEE   V.    GRIFFIN.  [CHAP.  VI. 

his  type,  shall  set  it  up  in  a  frame  and  impress  it  on  paper,  that  the 
paper  shall  be  submitted  to  the  author,  that  the  author  having  cor- 
rected it  shall  send  it  back  to  the  printer,  who  shall  again  exercise 
labor  and  make  it  into  a  complete  thing  in  the  shape  of  a  book.  That 
being  so,  I  think  that  the  plaintiff  was  employed  to  do  work  and  labor, 
and  supply  materials,  and  for  that  he  is  entitled  to  be  paid.  It  seems 
to  me  that  the  true  criterion  is  this :  Suppose  there  was  no  contract 
as  to  payment,  and  the  printer  brought  an  action  to  recover  what  he 
was  bv  law  entitled  to  receive,  would  that  be  the  value  of  the  book  as 
a  book  ?  I  apprehend  not ;  for  the  book  might  not  be  worth  half  the 
value  of  the  paper  on  which  it  was  printed,  but  he  would  be  entitled 
to  recover  for  his  work,  labor,  and  materials  supplied  ;  therefore  this  is 
in  strictness  work,  labor,  and  materials  done  and  provided  by  the 
plaintiff  for  the  defendant.  In  the  case  of  Bensley  v.  Bignold,  where 
the  defence  was  that  the  printer  had  not  affixed  his  name  to  the  book 
as  required  by  the  39  Geo.  3,  c.  79,  §  27,  it  was  treated  by  Abbott, 
C.  J.,  Bayley,  J.,  and  Holroyd,  J.,  as  a  contract  for  work,  labor,  and 
materials;  and  concurring  in  opinion  with  them,  I  do  not  think  it 
profitable  to  go  into  an  examination  of  the  other  cases. 

With  respect  to  the  other  point,  I  agree  that  as  soon  as  a  printer 
discovers  the  objectionable  nature  of  the  work  which  he  is  employed 
to  print,  he  ought  to  stop,  and  that  he  would  not  be  entitled  to  recover 
for  work  done  after  he  made  the  discovery.  But  I  cannot  doubt  that 
in  this  case,  although  the  contract  has  never  been  performed,  yet  as  the 
work  was  commenced  on  the  retainer  of  the  defendant,  and  in  igno- 
rance that  part  of  it  was  unlawful,  a  duty  arises  to  pay  the  plaintiff  for 
that  part  which  he  has  performed.  It  is  like  one  of  those  transactions 
where  a  person  accepts  goods  not  made  according  to  contract,  in  which 
case  the  law  implies  a  promise  to  pay  for  them  ;  though  perhaps  the 
better  expression  would  be,  "  a  duty  arises  to  pay  for  them,"  for  the 
true  ground  of  the  right  to  recover  is,  that  such  a  state  of  circum- 
stances has  arisen  that  in  point  of  law  there  is  a  duty  to  pay. 

Rule  discharged.1 


LEE  v.   GRIFFIN. 
In  the  Queen's  Bench,  May  9,  1861. 

[Reported  in  1  Best  fr  Smith,  272.] 

Declaration  against  the  defendant,  as  the  executor  of  one  Frances 
P.,  for  goods  bargained  and  sold,  goods  sold  and  delivered,  and  for 
work  and  labor  done  and  materials  provided  by  the  plaintiff  as  a  surgeon- 
dentist  for  the  said  Frances  P. 

Plea,  that  the  said  Frances  P.  never  was  indebted  as  alleged. 

1  Buamu  r.i.i.,  B.,  delivered  a  concurring  opinion      Aldbrsok,  B.,  also  concurred. 


SECT.  I.]  LEE   V.    GEIFPIN.  723 

The  action  was  brought  to  recover  the  sum  of  £21  for  two  sets  of 
artificial  teeth  ordered  by  the  deceased. 

At  the  trial,  before  Crompton,  J.,  at  the  sittings  for  Middlesex  after 
Michaelmas  term,  1860,  it  was  proved  by  the  plaintiff  that  he  had,  in 
pursuance  of  an  order  from  the  deceased,  prepared  a  model  of  her 
mouth,  and  made  two  sets  of  artificial  teeth  ;  as  soon  as  they  were  ready 
he  wrote  a  Utter  to  the  deceased,  requesting  her  to  appoint  a  day  when 
he  could  see  her  for  the  purpose  of  fitting  them.  To  this  communication 
the  deceased  replied  as  follows  :  — 

My  dear  Sir,  —  I  regret,  after  your  kind  effort  to  oblige  me,  my 
health  will  prevent  mj'  taking  advantage  of  the  early  day.  I  fear  I 
may  not  be  able  for  some  days. 

Yours,  &c,  Frances  P. 

Shortly  after  writing  the  above  letter  Frances  P.  died.  On  these  facts 
the  defendant's  counsel  contended  that  the  plaintiff  ought  to  be  non- 
suited, on  the  ground  that  there  was  no  evidence  of  a  delivery  and  ac- 
ceptance of  the  goods  b}-  the  deceased,  nor  an}'  memorandum  in  writing 
of  a  contract  within  the  meaning  of  the  17th  section  of  the  Statute  of 
Frauds,  29  Car.  2,  c.  3,  and  the  learned  judge  was  of  that  opinion.  The 
plaintiffs  counsel  then  contended  that,  on  the  authority  of  (.'lay  '•. 
Yates,  1  H.  &  N.  73,  the  plaintiff  could  recover  in  the  action  on  the 
count  for  work  and  labor  done,  and  materials  provided.  The  learned 
judge  declined  to  nonsuit,  and  directed  a  verdict  for  the  amount  claimed 
to  be  entered  for  the  plaintiff,  with  leave  to  the  defendant  to  move  to 
enter  a  nonsuit  or  verdict. 

Patchett  now  showed  cause. 

Griffits,  in  support  of  the  rule. 

Crompton,  J.  I  think  that  this  rule  ought  to  be  made  absolute.  On 
the  second  point  I  am  of  the  same  opinion  as  I  was  at  the  trial.  There 
is  not  an}*  sufficient  memorandum  in  writing  of  a  contract  to  satisfy  the 
Statute  of  Frauds.  The  case  decided  in  the  House  of  Lords,  to  which 
reference  has  been  made  during  the  argument,  is  clearly  distinguishable. 
That  case  only  decided  that  if  a  document,  which  is  silent  as  to  the 
particulars  of  a  contract,  refers  to  another  document  which  contains 
such  particulars,  parol  evidence  is  admissible  for  the  purpose  of  showing 
what  document  is  referred  to.  Assuming,  in  this  case,  that  the  two 
documents  were  sufficiently  connected,  still  there  would  not  be  any  suf- 
ficient evidence  of  the  contract.  The  contract  in  question  was  to  deliver 
some  particular  teeth  to  be  made  in  a  particular  way,  but  these  letters 
do  not  refer  to  any  particular  bargain,  nor  in  any  manner  disclose  its 
terms. 

The  main  question  which  arose  at  the  trial  was,  whether  the  contract 
in  the  second  count  could  be  treated  as  one  for  work  and  labor,  or 
Whether  it  was  a  contract  for  goods  sold  and  delivered.  The  distinction 
between  these  two  causes  of  action  is  sometimes  very  fine;  lmt  where 
the  contract  is  for  a  chattel  to  be  made  and  delivered,  it  clearlv  is  a  con- 


724  LEE   V.   GRIFFIN.  [CHAP.  VI. 

tract  for  the  sale  of  goods.  There  are  some  cases  in  which  the  supply 
of  the  materials  is  ancillary  to  the  contract,  as  in  the  case  of  a  printer 
supplying  the  paper  on  which  a  book  is  printed.  In  such  a  case  an 
action  might  perhaps  be  brought  for  work  and  labor  done  and  materials 
provided,  as  it  could  hardly  be  said  that  the  subject-matter  of  the  con- 
tract was  the  sale  of  a  chattel :  perhaps  it  is  more  in  the  nature  of  a 
contract  merely  to  exercise  skill  and  labor.  Clay  v.  Yates  turned  on  its 
own  peculiar  circumstances.  I  entertain  some  doubt  as  to  the  correct- 
ness of  that  decision  ;  but  I  certainly  do  not  agree  to  the  proposition 
that  the  value  of  the  skill  and  labor,  as  compared  to  that  of  the  material 
supplied,  is  a  criterion  by  which  to  decide  whether  the  contract  be  for 
work  and  labor,  or  for  the  sale  of  the  chattel.  Here,  however,  the  sub- 
ject-matter of  the  contract  was  the  supply  of  goods.  The  case  bears  a 
strong  resemblance  to  that  of  a  tailor  supplying  a  coat,  the  measure- 
ment of  the  mouth  and  fitting  of  the  teeth  being  analogous  to  the 
measurement  and  fitting  of  the  garment. 

Hill,  J.  I  am  of  the  same  opinion.  I  think  that  the  decision  in 
Clay  v.  Yates  is  perfectly  right.  That  was  not  a  case  in  which  a  party 
ordered  a  chattel  of  another  which  was  afterwards  to  be  made  and  de- 
livered, but  a  case  in  which  the  subject-matter  of  the  contract  was  the 
exercise  of  skill  and  labor.  AVherever  a  contract  is  entered  into  for  the 
manufacture  of  a  chattel,  there  the  subject-matter  of  the  contract  is 
the  sale  and  delivery  of  the  chattel,  and  the  party  supplying  it  cannot 
recover  for  work  and  labor.  Atkinson  v.  Bell,  8  B.  &  C.  277,  is,  in  my 
opinion,  good  law,  with  the  exception  of  the  dictum  of  Bayley,  J.,  which 
is  repudiated  by  Maule,  J.,  in  Grafton  v.  Armitage,  2  C.  B.  336,  where 
he  sa}"S :  "In  order  to  sustain  a  count  for  work  and  labor,  it  is  not 
necessary  that  the  work  and  labor  should  be  performed  upon  materials 
that  are  the  property  of  the  plaintiff  [defendant?]."  And  Tindal,  C.  J., 
in  his  judgment  in  the  same  case,  page  340,  points  out  that  in  the  appli- 
cation of  the  observations  of  Bayley,  J.,  regard  must  be  had  to  the  par- 
ticular facts  of  the  case.  In  every  other  respect,  therefore,  the  case  of 
Atkinson  v.  Bell  is  law.  I  think  that  these  authorities  are  a  complete 
answer  to  the  point  taken  at  the  trial  on  behalf  of ■  the  plaintiff. 

When,  however,  the  facts  of  this  case  are  looked  at,  I  cannot  see 
how,  wholly  irrespective  of  the  question  arising  under  the  Statute  of 
Frauds,  this  action  can  be  maintained.  The  contract  entered  into  by 
the  plaintiff  with  the  deceased  was  to  supply  two  sets  of  teeth,  which 
were  to  be  made  for  her  and  fitted  to  her  mouth,  and  then  to  be  paid 
for.  Through  no  default  on  her  part,  she  having  died,  they  never  were 
fitted  ;  no  action  can  therefore  be  brought  by  the  plaintiff. 

Blackburn,  J.  On  the  second  point,  I  am  of  opinion  that  the  letter 
is  not  a  sufficient  memorandum  in  writing  to  take  the  case  out  of  the 
Statute  of  Frauds. 

On  the  other  point,  the  question  is  whether  the  contract  was  one  for 
the  sale  of  goods  or  for  work  and  labor.  I  think  that  in  all  cases,  in 
order  to  ascertain  whether  the  action  ought  to  be  brought  for  goods  sold 


SECT.  1.1  MIXER   V.    HOWAETH.  725 

and  delivered,  or  for  work  and  labor  done  and  materials  provided,  we 
must  look  at  the  particular  contract  entered  into  between  the  parties. 
If  the  contract  be  such  that,  when  carried  out,  it  would  result  in  the  sale 
of  a  chattel,  the  party  cannot  sue  for  work  and  labor;  but  if  the  result 
of  the  contract  is  that  the  party  has  done  work  and  Labor  which  ends  iu 
nothing  that  can  become  the  subject  of  a  sale,  the  party  cannot  sue  for 
goods  sold  and  delivered.  The  case  of  an  attorney  employed  to  pre- 
pare a  deed  is  an  illustration  of  this  latter  proposition.  It  cannot  be 
said  that  the  paper  and  ink  he  uses  in  the  preparation  of  the  deed 
are  goods  sold  and  delivered.  The  case  of  a  printer  printing  a  book 
would  most  probably  fall  within  the  same  category.  In  Atkinson  r.  Bell 
the  contract,  if  carried  out,  would  have  resulted  in  the  sale  of  a  chattel. 
In  Grafton  v.  Armitage,  Tindal,  C.  J.,  lays  down  this  very  principle. 
He  draws  a  distinction  between  the  case  of  Atkinson  v.  Bell  and  that 
before  him.  The  reason  he  gives  is  that,  in  the  former  case  "  the  sub- 
stance of  the  contract  was  goods  to  be  sold  and  delivered  by  the  one 
party  to  the  other ;  "  in  the  latter,  ' '  there  never  was  any  intention  to 
make  anything  that  could  properly  become  the  subject  of  an  action  for 
goods  sold  and  delivered."  I  think  that  distinction  reconciles  those  two 
cases,  and  the  decision  of  Clay  v.  Yates  is  not  inconsistent  with  them. 
In  the  present  case  the  contract  was  to  deliver  a  thing  which,  when  com- 
pleted, would  have  resulted  in  the  sale  of  a  chattel;  in  other  words,  the 
substance  of  the  contract  was  goods  sold  and  delivered.  I  do  not  think 
that  the  test  to  apply  to  these  cases  is  whether  the  value  of  the  work 
exceeds  that  of  the  materials  used  in  its  execution;  for,  if  a  sculptor 
were  employed  to  execute  a  work  of  art,  greatly  as  his  skill  and  labor, 
supposing  it  to  be  of  the  highest  description,  might  exceed  the  value  of 
the  marble  on  which  he  worked,  the  contract  would,  in  my  opinion, 
nevertheless  be  a  contract  for  the  sale  of  a  chattel. 

Mule  absolute. 


JOHN   MIXER   v.   JOHN   HOWARTH. 
Supreme   Judicial    Court    of   Massachusetts,   January    24  —  Feb- 
ruary 1,  1839. 
[Reported  in  21   Pickering,  205.] 
Assumpsit.     Trial  before  Wilde,  J.     The  writ  contained  the  common 
counts  for  work  and  labor,  and  materials  found.  &c.     In  the  Common 
Pleas  the  plaintiff  filed  a  specification,  claiming  to  recover  $250,  the 
price  of  a  bnggy  sold  and  delivered  to  the  defendant.     In  this  court  he 
tiled  an  additional  specification,  claiming  for  work  and  labor,  and  mate- 
rials  furnished  the  defendant,  at  his  request,  upon  the  same  article. 
$250  ;   and  likewise  a  count  setting  forth  a  special  contract  that  the 
plaintiff  should  build  a  buggy,  and  that  the  defendant   should  take  and 
pay  for  the  same,  with  the  usual  necessary  averments.     To  this  last 


726  MIXER   V.    HOWAKTII.  [CHAP.  VI. 

count  the  defendant  objected,  because  it  was  not  for  the  same  cause  of 
action  and  not  consistent  with  the  original  declaration  ;  but  the  amend- 
ment was  allowed  without  terms. 

The  testimony  of  witnesses  produced  by  the  plaintiff  had  a  tendency 
to  prove  that  in  September,  1836,  the  defendant  came  into  the  plaintiff's 
shop  and  selected  a  piece  of  cloth  for  the  lining  of  a  buggy  ;  that  the 
plaintiff  then  had  on  hand  the  body  of  a  buggy,  nearly  finished,  but  not 
lined  ;  that  by  a  conversation  between  the  parties  it  was  understood 
that  the  plaintiff  was  to  finish  a  buggy  for  the  defendant  in  a  fortnight 
from  that  time  ;  and  that  the  unfinished  buggy  was  completed  accord- 
ingly, and  the  defendant  had  notice  thereof  and  was  .requested  to  take 
it  away,  but  he  declined  so  to  do.  The  witnesses  were  allowed  to  tes- 
tify as  to  the  estimated  value  of  the  trimmings  and  other  materials 
used  in  finishing  the  buggy,  and  of  the  plaintiff's  work  and  labor 
thereon.  A  witness  named  Scadding  testified  that,  at  the  time  when 
the  defendant  went  to  the  plaintiff's  shop,  the  plaintiff  had  but  one 
carriage-body  on  hand  not  lined  ;  that  the  plaintiff  had  on  hand  several 
buggies  partly  finished  ;  that  the  witness  did  not  know  of  anything  done 
in  consequence  of  any  application  made  by  the  defendant,  except  that 
the  plaintiff  had  before  that  time  told  him  that  he  should  not  complete 
any  more  buggies  that  fall  unless  ordered,  and  after  this  a  buggy  was 
finished  ;  that  no  account  was  kept  of  any  labor  or  materials  ;  and  that 
the  witness  knew  nothing  of  any  work  done  except  upon  the  bod}'. 

The  defendant  moved  for  a  nonsuit,  because  the  contract,  if  any,  was 
void  by  the  Revised  Stat,  c.  74,  §  4  (of  frauds)  ;  but  the  judge  intimat- 
ing a  different  opinion,  a  verdict  was  taken  for  the  plaintiff,  subject  to 
the  opinion  of  the  whole  court. 

Hazen  and  Cummins,  for  the  defendant. 

L.  Williams,  for  the  plaintiff. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  court.  The  first  question 
is,  whether  the  amendment  was  rightly  allowed.  The  original  count  was 
for  a  carriage  sold  and  delivered,  with  counts  for  labor  and  materials, 
&c.  And  in  the  specification  the  plaintiff  claimed  the  price  of  the  car- 
riage. The  new  count  was  upon  an  agreement  by  the  defendant  to  take 
and  pay  for  a  carriage  to  be  built  by  his  order  and  request. 

The  court  are  of  opinion  that  these  were  for  the  same  substantive 
cause  of  action,  and  that  the  amendment  was  admissible  and  rightly  al- 
lowed. And  in  a  similar  case  recently  decided  in  England,  Bay  ley,  J., 
stated  that  in  his  opinion  the  plaintiff  could  not  recover  as  for  goods 
sold,  because  the  property  had  not  passed  ;  but  lie  also  expressed  his 
opinion  that,  on  payment  of  costs,  the  nonsuit  ought  to  be  set  aside, 
and  the  plaintiff  allowed  to  amend  by  adding  counts  on  the  agreement 
and  for  not  accepting  the  goods.  Atkinson  v.  Bell,  8  Barn.  &  Cressw. 
277. 

But  the  main  question  is,  whether  this  contract  for  the  sale  of  the  car- 
riage was  within  the  Statute  of  Frauds,  and  so  void  if  not  proved  by  a 
note  or  memorandum  in  writing.     Revised  Stat.,  c.  71,  §  1. 


SECT.  I.]  GODDAKD   V.   BINNEY.  727 

It  is  very  clear,  we  think,  that  by  this  contract  no  property  passed  to 
the  defendant.  The  carriage  contemplated  to  be  sold  by  the  plaintiff  to 
the  defendant  did  not  then  exist.  It  was  to  be  constructed  from  mate- 
rials, partly  wrought  indeed,  but  not  put  together.  It  was  therefore 
essentially  an  agreement  by  the  defendant  with  the  plaintiff  to  build  a 
carriage  tor  him,  and  on  his  part  to  take  it  when  finished  and  pay  for  it 
at  an  agreed  or  at  the  reasonable  value.  This  is  a  valid  contract  and 
made  on  a  good  consideration,  and  therefore  binding  on  the  defendant. 
But  it  was  not  a  contract  of  sale,  within  the  meaning  of  the  Statute  of 
Frauds,  and  therefore  need  not  be  proved  by  a  note  in  writing. 

When  the  contract  is  a  contract  of  sale,  either  of  an  article  then  ex- 
isting, or  of  articles  which  the  vendor  usually  has  for  sale  in  the  course 
of  his  business,  the  statute  applies  to  the  contract,  as  well  where  it  is  to 
be  executed  at  a  future  time,  as  where  it  is  to  be  executed  immediately. 
Cooper  v.  Elstou,  7  T.  R.  14;  Sewall  v.  Fitch,  8  Cowen,  21.0.  But 
where  it  is  an  agreement  with  a  workman  to  put  materials  together  and 
construct  an  article  for  the  employer,  whether  at  an  agreed  price  or  not, 
though  in  common  parlance  it  may  be  called  a  purchase  and  sale  of  the 
article,  to  be  completed  in  futuro,  it  is  not  a  sale  until  an  actual  or 
constructive  delivery  and  acceptance  ;  and  the  remedy  for  not  accepting 
is  on  the  agreement.  Judgment  on  the  verdict. 


GODDARD   v.   BINNEY. 

Supreme  Judicial  Court  of  Massachusetts,  March  14  —  Septem- 
ber 4,  1874. 

[Reported  in  115  Massachusetts,  450.J 

Contract  to  recover  the  price  of  a  buggy  built  by  the  plaintiff  for  the 
defendant. 

Trial  in  the  Superior  Court,  before  Dewey,  J.,  who  reported  the  case 
for  the  consideration  of  this  court  in  substance  as  follows  :  — 

The  plaintiff,  a  carriage  manufacturer  in  Boston,  testified  that  the 
defendant  came  to  his  place  of  business  in  April,  1872,  and  directed  the 
plaintiff  to  make  for  him  a  buggy,  and  the  plaintiff  entered  the  order  in 
his  order-book  ;  the  defendant  gave  directions  that  the  color  of  the  lining 
should  be  drab,  and  the  outside  seat  of  cane,  and  as  to  the  painting,  and 
also  that  the  buggy  was  to  have  on  it  his  monogram  and  initials.  The 
sum  of  8(575  was  agreed  as  the  price.  It  was  to  be  done  in  or  about 
four  months.  The  plaintiff  immediately  began  work  upon  the  buggy 
and  made  every  part,  it  being  painted,  lined,  and  with  the  initials,  as 
ordered. 

The  last  of  August,  when  the  buggy  was  nearly  completed,  wanting 
only  the  last  coat  of  varnish,  and  the  hanging  of  it  on  the  wheels,  the 


728  GODDARD    V.    BIXNEY.  [CHAP.  VI. 

defendant  came  to  the  plaintiff's  place  of  business  and  asked  when  it 
would  be  done.  The  plaintiff  replied  in  about  ten  days,  and  asked  the 
defendant  if  he  might  sell  the  buggy,  or  if  he  wished  it,  as  he,  the  plain- 
tiff, had  opportunities  of  selling  it  to  others.  The  defendant  then  in- 
quired if  the  plaintiff  could  furnish  him  another  if  he  sold  that,  to  which 
he  replied  he  could  not,  as  he  was  going  to  give  up  the  business  of  man- 
ufacturing, and  that  unless  be  took  this  he  could  not  have  any.  The 
defendant  then  said  he  would  keep  this  one. 

The  defendant  did  not  at  this,  nor  at  any  other  time,  see  the  buggy. 
The  bugg}'  was  finished  September  15,  in  accordance  With  the  original 
order.  It  is  usual  to  keep  carriages  some  time  after  they  are  finished 
to  let  the  paint  and  varnish  harden. 

October  14,  1872,  the  plaintiff  sent  to  the  defendant  the  following 
bill:  "Boston,  October  14,  1872.  Mr.  H.  P.  Binney.  Bo't  of  Thos. 
Goddard,  one  new  cane  seat  buggy,  $675.  Rec'd  Pay't.  (Buggy  was 
finished  Sept.  15.)" 

The  bill  was  presented  by  a  clerk  of  the  plaintiff.  The  defendant, 
after  looking  at  it,  said  he  would  see  the  plaintiff  soon.  The  bill  was 
in  the  plaintiff's  handwriting  and  was  kept  by  the  defendant.  The  same 
clerk  called  again  soon  after  and  asked  the  defendant  for  a  check,  to 
which  he  replied  that  he  would  pay  it  soon,  and  would  see  the  plaintiff. 
Calling  a  third  time,  before  the  fire  of  November  9th,  the  defendant 
said,  '-Tell  Mr.  Goddard  I  will  come  and  see  him  right  away."  By  the 
fire  of  November  9,  1872,  this  buggy  and  all  the  property  on  the  plain- 
tiff's premises  were  destroyed.  After  the  fire  the  plaintiff  again  called 
on  the  defendant  for  payment.  He  wanted  to  know  if  it  was  insured, 
and  said  he  would  see  the  plaintiff  about  it. 

After  the  buggy  was  finished,  it  was  kept  with  the  completed  work 
on  the  plaintiff's  premises  ;  and  it  was  at  all  times  after  it  was  finished 
till  burned  worth  and  could  have  been  sold  by  the  plaintiff  for  upwards 
of  8700.  the  value  of  buggies  of  the  plaintiff's  manufacture  having  ad- 
vanced after  the  contract  was  made  in  April. 

The  defendant  put  in  no  evidence,  and  contended  that  this  action 
could  not  be  maintained,  that  it  came  within  the  provisions  of  the  Gen. 
Stats,  c.  105,  §  5,  and  that  there  had  never  been  any  delivery  of  the  said 
buggy  to  the  defendant,  nor  any  acceptance  thereof  b}*  him,  and  that 
the  property  belonged  to  and  was  at  the  sole  risk  of  the  plaintiff  at  the 
time  of  the  fire,  and  that  if  any  cause  of  action  arose  against  the  defend- 
ant for  not  taking  away  the  said  buggy,  it  arose  prior  to  the  fire,  and  no 
damage  was  caused  to  the  plaintiff  thereupon.  The  plaintiff  contended 
that  the  contract  did  not  come  within  the  provision  of  the  statute  re- 
ferred to,  and  that  it  was  the  duty  of  the  defendant,  upon  being  notified 
that  the  buggy  was  completed,  to  take  the  same  away  within  a  reason- 
able time,  and  that  not  having  done  so  the  buggy  was  at  the  risk  of  the 
defendant  when  burned. 

The  plaintiff  further  contended  that  upon  the  evidence  the  jury  would 
be  authorized  to  find  that  there  had  been  a  delivery  of  the  buggy  to  the 


SECT.  I.]  GODDAHD    V.   BINNEY.  729 

defendant,  and  an  acceptance  by  him,  and  without  submitting  that  ques- 
tion to  the  jury  it  was  agreed  by  the  parties,  that  if  there  was  any  evi- 
dence which  could  have  properly  been  submitted  to  the  jury  as  showing  a 
delivery,  and  an  acceptance  of  the  buggy  by  the  defendant,  then  it  shall 
be  taken  that  the  jury  would  have  found  said  delivery  and  acceptance. 

Upon  the  evidence  hereinbefore  stated,  the  presiding  judge  directed 
a  verdict  for  the  defendant;  and  it  was  agreed  that  if  the  jury  would 
have  been  authorized  to  find  a  delivery  and  an  acceptance  by  the  de- 
fendant, or  if  upon  the  facts  above  stated  the  court  is  of  opinion  that 
at  the  time  of  the  fire  the  said  buggy  was  on  the  premises  of  the  plain- 
tiff, at  the  risk  of  the  defendant,  the  verdict  is  to  be  set  aside,  and  judg- 
ment entered  for  $675,  and  interest,  from  October  15,  1872  ;  otherwise, 
judgment  on  the  verdict. 

C.  A.  Welch,  for  the  plaintiff. 
G.  Putnam,  Jr.,  for  the  defendant. 

Ames,  J.  Whether  an  agreement  like  that  described  in  this  report 
should  be  considered  as  a  contract  for  the  sale  of  goods,  within  the 
meaning  of  the  Statute  of  Frauds,  or  a  contract  for  labor,  services,  and 
materials,  and  therefore  not  within  that  statute,  is  a  question  upon 
which  there  is  a  conflict  of  authority.  According  to  a  long  course  of 
decisions  in  New  York,  and  in  some  other  States  of  the  Union,  an 
agreement  for  the  sale  of  any  commodity  not  in  existence  at  the  time, 
but  which  the  vendor  is  to  manufacture  or  put  in  a  condition  to  be  de- 
livered (such  as  flour  from  wheat  not  yet  ground,  or  nails  to  be  made 
from  iron  in  the  vendor's  hands),  is  not  a  contract  of  sale  within  the 
moaning  of  the  statute.  Crookshank  v.  Burrell,  18  Johns.  58  ;  Sewall 
v.  Fitch,  8  Cow.  215  ;  Robertson  v.  Vaughn,  5  Sandf.  1  ;  Downs  v.  Ross, 
23  Wend.  270;  Eichelberger  v.  IVTCauley,  5  Mar.  &  J.  213.  In  Eng- 
land, on  the  other  hand,  the  tendency  of  the  recent  decisions  is  to  treat 
all  contracts  of  such  a  kind  intended  to  result  in  a  sale,  as  substantially 
contracts  for  the  sale  of  chattels  ;  and  the  decision  in  Lee  v.  Griffin,  1 
B.  &  S.  272,  goes  so  far  as  to  hold  that  a  contract  to  make  and  fit  a  set 
of  artificial  teeth  for  a  patient  is  essentially  a  contract  for  the  sale  of 
goods,  and  therefore  is  subject  to  the  provisions  of  the  statute.  See 
Maberley  v.  Sheppard,  10  Ring.  99  ;  Howe  v.  Palmer,  3  B.  &  Aid.  321  ; 
Baldev  v.  Parker,  2  R.  &  C.  37  :  Atkinson  r.  Roll,  8  R.  &  C.  277. 

In  this  Commonwealth,  a  rule  avoiding  both  of  these  extremes  was 
established  in  Mixer  v.  Howarth,  21  Pick.  205,  and  has  been  recognized 
and  affirmed  in  repealed  decisions  of  more  recent  date.  The  effect  of 
these  decisions  we  understand  to  be  this,  namely,  that  a  contract  for 
the  sale  of  articles  then  existing,  or  such  as  the  vendor  in  the  ordinary 
coins,,  of  his  business  manufactures  or  procures  for  the  general  market, 
whether  on  hand  at  the  time  or  not,  is  a  contract  for  the  sale  of  goods, 
to  which  the  statute  applies.  But,  on  the  other  hand,  if  the  goods  are 
to  be  manufactured  especially  for  the  purchaser,  and  upon  his  special 
order,  and  not  for  the  general  market,  the  case  is  not  within  the  statute. 
Spencei   v.  Cone,  1  Met.  283.     "The  distinction,"  says  Chief  Justice 


730  GODDARD    V.    BINNEY.  [CHAP.  VI. 

Shaw,  in  Lamb  v.  Crafts,  12  Met.  353,  "we  believe  is  now  well  under- 
stood. When  a  person  stipulates  for  the  future  sale  of  articles,  winch 
he  is  habitually  making,  and  which,  at  the  time,  are  not  made  or  finished, 
it  is  essentially  a  contract  of  sale,  and  not  a  contract  for  labor;  other- 
wise, when  the  article  is  made  pursuant  to  the  agreement."  In  Gard- 
ner r.  Joy,  9  Met.  177,  a  contract  to  buy  a  certain  number  of  boxes  of 
candles  at  a  fixed  rate  per  pound,  which  the  vendor  said  he  would  man- 
ufacture and  deliver  in  about  three  months,  was  held  to  be  a  contract  of 
sale  and  within  the  statute.  To  the  same  general  effect  are  Waterman 
y  Meigs,  4  Cush.  497,  and  Clark  w.  Nichols,  107  Mass.  547.  It  is  true 
that  in  ••  the  infinitely  various  shades  of  different  contracts,"  there  is 
some  practical  difficulty  in  disposing  of  the  questions  that  arise  under 
that  section  of  the  statute.  Gen.  Sts.  c.  105,  §  5.  But  we  see  no 
ground  for  holding  that  there  is  any  uncertainty  in  the  rule  itself.  On 
the  contrary,  its  correctness  and  justice  are  clearly  implied  or  expressly 
affirmed  in  all  of  our  decisions  upon  the  subject-matter.  It  is  proper 
to  saj'  also  that  the  present  case  is  a  much  stronger  one  than  Mixer 
v.  Howarth.  In  this  case,  the  carriage  was  not  only  built  for  the  de- 
fendant, but  in  conformity  in  some  respects  with  his  directions,  and  at 
his  request,  was  marked  with  his  initials.  It  was  neither  intended  nor 
adapted  for  the  general  market.  As  we  are  by  no  means  prepared  to 
overrule  the  decision  in  that  case,  we  must  therefore  hold  that  the  Stat- 
ute of  Frauds  does  not  appby  to  the  contract  which  the  plaintiff  is  seeking 
to  enforce  in  this  action. 

Independently  of  that  statute,  and  in  cases  to  which  it  does  not  apply, 
it  is  well  settled  that  as  between  the  immediate  parties,  property  in  per- 
sonal chattels  ma}-  pass  by  bargain  and  sale  without  actual  delivery. 
If  the  parties. have  agreed  upon  the  specific  thing  that  is  sold  and  the 
price  that  the  buyer  is  to  pay  for  it,  and  nothing  remains  to  be  done  but 
that  the  buyer  should  pay  the  price  and  take  the  same  thing,  the  prop- 
erty passes  to  the  buyer,  and  with  it  the  risk  of  loss  by  fire  or  any  other 
accident.  The  appropriation  of  the  chattel  to  the  buyer  is  equivalent, 
for  that  purpose,  to  delivery  by  the  seller.  The  assent  of  the  buyer  to 
take  the  specific  chattel  is  equivalent  for  the  same  purpose  to  his  accept- 
ance of  possession.  Dixon  c.  Yates,  5  B.  &  Ad.  313,  340.  The  prop- 
erty may  well  be  in  the  buyer,  though  the  right  of  possession,  or  lien 
for  the  price,  is  in  the  seller.  There  could  in  fact  be  no  such  lien  with- 
out a  change  of  ownership.  No  man  can  be  said  to  have  a  lien,  in  the 
proper  sense  of  the  term,  upon  his  own  property,  and  the  seller's  lien 
can  only  be  upon  the  buyer's  property.  It  has  often  been  decided  that 
assumpsit  for  the  price  of  goods  bargained  and  sold  can  be  maintained 
where  tin'  goods  have  been  selected  by  the  buyer,  and  set  apart  for  him 
by  the  seller,  though  not  actually  delivered  to  him,  and  where  nothing 
remains  to  be  done  except  that  the  buyer  should  pay  the  agreed  price. 
In  such  a  state  of  things  the  property  vests  in  him,  and  with  it  the  risk 
of  any  acident  that  may  happen  to  the  goods  in  the  mean  time.  Noy's 
Maxims,  S'J  ;  2  Kent  Com.  (12th  ed.)  492  ;   Blosam  v.  Sanders,  4  B.  & 


SECT.  L]  PARSONS   V.    LOUCKS.  731 

C  941  ;  Tarling  v.  Baxter,  6  B.  &  C.  3G0  ;  Ilinde  v.  Whitehouse,  7  Bast, 
571  ;  Macomber  v.  Parker,  13  Pick.  175,  183;  Morse  v.  Sherman,  106 
Mass.  430. 

In  the  present  case,  nothing  remained  to  be  done  on  the  part  of  the 
plaintiff.  The  price  had  been  agreed  upon  ;  the  specific  chattel  had 
been  Quished  according  to  order,  set  apart  and  appropriated  for  the  de- 
fendant, and  marked  with  his  initials.  The  plaintiff  had  not  undertaken 
to  deliver  it  elsewhere  than  on  his  own  premises.  lie  gave  notice  that 
it  was  finished,  and  presented  his  bill  to  the  defendant,  who  promised 
to  pay  it  soon.  He  had  previously  requested  that  the  carriage  should 
not  be  sold,  a  request  which  substantially  is  equivalent  to  asking  the 
plaintiff  to  keep  it  for  him  when  finished.  Without  contending  that 
these  circumstances  amount  to  a  deliver)'  and  acceptance  'within  the 
Statute  of  Frauds,  the  plaintiff  may  well  claim  that  enough  has  been 
done,  in  a  case  not  within  that  statute,  to  vest  the  general  owner-hip 
in  the  defendant,  and  to  cast  upon  him  the  risk  of  loss  b}'  fire,  while  the 
chattel  remained  in  the  plaintiff's  possession. 

According  to  the  terms  of  the  reservation,  the  verdict  must  be  set 
aside,  and  Judgment  entered  for  the  plaintiff. 


PARSONS   v.   LOUCKS. 
New  York  Court  of  Appeals,  May  11 — September,  1871. 

[Reported  in  48  New  York,  17.] 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court, 
in  the  city  of  New  York,  affirming  a  judgment  in  favor  of  plaintiffs, 
entered  upon  the  report  of  a  referee. 

The  action  is  to  recover  damages  for  an  alleged  breach  of  contract  to 
manufacture  and  deliver  a  quantity  of  paper. 

The  referee  to  whom  this  case  was  referred  found,  and  reported  as 
matter  of  fact,  — 

1st.  That  on  or  about  the  30th  day  of  October,  18G2,  it  was  agreed 
between  the  plaintiffs  and  the  defendants,  who  then  were  and  still  are 
copartners  as  paper  manufacturers,  that  the  defendants  should  manufac- 
ture and  deliver  to  the  plaintiffs,  at  the  city  of  New  York,  ten  tons,  to 
wit.  20,000  pounds  of  book  paper,  similar  to  ether  paper  which  the 
defendants  had  previously  made  for  the  plaintiffs,  as  soon  as  they,  the 
defendants,  should  finish  certain  other  orders  for  paper,  which  they 
stated  they  had  on  hand,  and  would  take  about  three  weeks  from  said 
date  last  mentioned,  with  a  fair  supply  of  water,  to  finish;  and  that  the 
plaintiffs  on  such  delivery  should  pay  the  defendants  therefor  thirteen 
cents  a  pound,  less  a  discount  of  five  per  cent. 

2d.  That  in  the  month  of  January.  1863,  and  in  or  about  the  middle 
of  thai  month,  the  defendants  stated  to  the  plaintiffs  that  they  would 


732  PARSONS   V.    LOUCKS.  [CHAP.  VI. 

not  perform  the,  said  agreement,  or  manufacture  or  deliver  said  paper, 
and  refused  to  perform  the  said  agreement,  although  thereto  requested 
by  the  plaintiffs,  and  that  the  plaintiffs  were  at  all  times  ready  and  will- 
ing to  receive  said  paper  and  pay  for  the  same,  pursuant  to  the  terms  of 
the  said  agreement,  and  that  said  defendants  have  never  delivered  to 
said  plaintiffs  said  ten  tons  of  paper,  or  any  part  thereof,  but  have  re- 
fused so  to  do. 

3d.  That  by  reason  of  the  breach  of  the  said  agreement  the  plaintiffs 
have  sustained  damage  to  the  amount  of  $1,930,  as  of  the  time  when 
such  breach  occurred,  the  difference  between  the  contract  price  (thirteen 
cents,  less  five  per  cent  discount)  per  pound,  and  the  market  price  of 
such  paper  (twenty-two  cents  per  pound)  at  the  time  of  such  breach,  on 
20,000  pounds,  amount,  to  said  sum  of  $1,930. 

As  matter  of  law  :  That  the  plaintiffs  are  entitled  to  recover  of  the 
defendants  said  sum  of  $1,930,  with  interest  thereon  since  the  1st  day 
of  January,  1863.  that  is  to  say,  the  sum  of  $2,301.51 ,  with  costs. 

Augustus  F.  Smith,  for  the  appellants. 

John  E.  Parsons,  for  the  respondents. 

Hunt,  C.  The  paper  to  be  delivered  was  not  in  existence  at  the  time 
of  the  making  of  the  contract  in  October,  18G2.  It  was  yet  to  be 
brought  into  existence  by  the  labor  and  the  science  of  the  defendants. 
Of  the  20,000  pounds  to  be  delivered,  not  an  ounce  had  then  been  man- 
ufactured, it  was  all  of  it  to  be  created  b}'  the  defendants,  and  at  their 
mill.  In  such  a  case  it  is  well  settled,  that  the  Statute  of  Frauds  does 
not  apply  to  the  contract.  The  distinction  is  between  the  sale  of  goods 
in  existence,  at  the  time  of  making  the  contract,  and  an  agreement  to 
manufacture  goods.  The  former  is  within  the  prohibition  of  the  statute, 
and  void  unless  it  is  in  writing,  or  there  has  been  a  delivery  of  a  portion 
of  the  goods  sold  or  a  payment  of  the  purchase-price.  The  latter  is  not. 
The  statute  reads,  "Every  contract  for  the  sale  of  any  goods,  chattels, 
or  tilings  in  action,  for  the  price  of  fifty  dollars  or  more,  shall  be  void 
unless,"  etc.  2  R.  S.  136,  §  3.  The  statute  alludes  to  a  sale  of  goods, 
assuming  that  the  articles  are  already  in  existence.  This  distinction 
was  settled  in  this  State  in  1820,  by  the  case  of  Crookshank  v.  Burrell, 
18  John.  R.  58,  and  has  been  followed  and  recognized  in  many  others. 
Sewall  v.  Fitch,  8  Cowen,  215  ;  Robertson  r.  Vaughn,  5  Sand.  S.  C.  R.  1  ; 
Bronson  v.  Wiman,  10  Barb.  406  ;  Donovan  v.  Willson,  26  Barb.  138; 
Parker  v.  Schenck,  28  id.  38  ;  Mead  v.  Case,  33  id.  202  ;  Smith  v.  N.  Y. 
Central  R.  R.  4  Keyes,  191. 

The  present  is  not  one  of  the  bonier  cases,  in  which  an  embarrassing 
or  doubtful  question  is  presented,  as  where  wheat  is  sold,  but  the  labor 
of  threshing  remains  to  be  done,  Downs  v.  Ross,  23  Wend.  270;  or  a 
sale  of  (lour  which  has  yet  to  lie  ground  from  the  wheat,  Oarbutt  v. 
Watson,  5  B.  &  Aid.  613  ;  or  the  sale  of  wood  or  timber  which  requires 
to  be  cut  and  corded,  Smith  v.  N.  Y.  Central  R.  R.,  supra  ;  nor  where 
the  defendants  might  procure  other  parties  to  manufacture  the  paper. 
3  Bars,  on  Contracts,  52.     It  was  a  simple  naked  agreement  to  inanu- 


SECT.  I.]  PARSONS    V.    LOUCKS.  733 

facture  at  their  own  mills,  and  deliver  at  a  specified  price,  20,000  pounds 
of  paper  of  specified  sizes,  no  part  of  which  was  in  existence  at  the  time 
of  making  the  contract.  Indeed,  there  is  no  evidence  that  the  rags  and 
Other  materials  from  which  it  was  to  he  manufactured  were  owned  hy 
the  defendants,  or  were  in  existence,  except  so  far  as  it  may  he  argued 
that  matter  is  indestructible,  and  that  in  some  form  they  must  necessa- 
rily have  then  existed.  As  to  cases  of  this  character,  the  course  of  de- 
cisions in  this  State  has  been  uniform.  If  we  desired  to  do  otherwise, 
we  have  no  choice  ;  we  must  follow  them. 

The  judgment  must  be  affirmed  with  costs. 

All  concur  for  allirmance,  except  Gray,  C,  dissenting.1 

Judgment  affirmed  with  costs.* 

1  The  dissenting  opinion  of  Gray,  C,  is  omitted. 

2  In  Cooke  v.  Millard,  65  N.  V.  352,  the  defendants,  desiring  to  purchase  lnmber, 
went  to  the  plaintiff's'  yard  and  were  shown  lumber  of  the  desired  quality,  but  which 
needed  to  be  dressed  and  cut  into  the  different  sizes  desired.  An  order  was  given 
orally  for  certain  quantities.  The  order  was  complied  with,  and  the  lumber  was  placed 
as  ordered  on  the  plaintiffs'  dock.  While  there  it  was  burned.  The  plaintiffs  sued  for 
the  price.     Dwight,  Commissioner,  in  giving  judgment  for  the  defendant  said  : 

"The  New  York  rule  is  still  different.  It  is  held  here  by  a  long  course  of  decisions, 
that  an  agreement  for  the  sale  of  any  commodity  not  in  existence  at  the  time,  but  which 
the  vendor  is  to  manufacture  or  put  in  a  condition  to  be  delivered,  such  as  Hour  from 
wheat,  not  vet  ground,  or  nails  to  be  made  from  iron  belonging  to  the  manufacturer,  is 
not  a  contract  of  sale.  The  New.  York  rule  lays  stress  on  the  word  '  sale.'  There  must 
be  a  sale  at  the  time  the  contract  is  made.  The  latest  and  most  authoritative  expres- 
sion of  the  rule  is  found  in  a  recent  case  in  this  court.  Parsons  v.  Loucks,  4  s  N.  Y.  17, 
19.  The  contrast  between  Parsons  v.  Loucks,  in  this  State,  on  the  one  hand,  and  Lee 
v.  Griffin,  1  Best  &  Smith,  272,  in  England,  on  the  other  is,  that  in  the  former  case,  the 
word  '  sale '  refers  to  the  time  of  entering  into  the  contract,  while  in  the  latter,  reference 
is  had  to  the  time  of  delivery,  as  contemplated  by  the  parties.  If  at  that  time  it  is  a 
chattel  it  is  enough,  according  to  the  English  rule.  Other  cases  in  this  State  agreeing 
with  Parsons  r.  Loucks,  are  Crookshank  v.  Burrell,  18  J.  R.  58  ;  Sewall  v.  Fitch.  8  Cow. 
215;  Robertson  r.  Vaughn,  5  Sandf.  S.  C.  1 ;  Parker  v.  Seheuck,  28  Barb.  38.  These 
cases  are  based  on  certain  old  decisions  in  England,  such  as  Towers  v.  Osborne,  1 
Strange,  506,  and  Clayton  v.  Andrews,  4  Burrow,  2101,  which  have  been  wholly  dis- 
carded in  that  country. 

"  The  case  at  bar  does  not  fall  within  the  rule  in  Parsons  v.  Loucks,  supra.  The  facts 
of  that  case  were,  that  a  manufacturer  agreed  to  make  for  the  other  party  to  the  contract 
two  tons  of  book  paper.  The  paper  was  not  in  existence,  and,  so  far  as  appears,  not 
even  the  rags,  'except  so  far  as  such  existence  may  be  argued  from  the  fact  that  mat- 
ter is  indestructible.'  S<>  in  Sewall  v.  Fitch,  supra,  the  nails  which  were  the  subject  of 
the  contract  were  not  then  wrought  out,  but  were  to  be  made  and  delivered  at  a  future 
day. 

"Nothing  of  this  kind  is  found  in  the  present  case.     The  lumber,  with  tie  p 
exception  of  the  clapboards,  was  all  in  existence  when  the  contract  was  made.     It  only 
needed  to  be  prepared  for  the  purchaser,  —  dressed  and  put  in  a  condition  to  fill  his 
order.     The  court,  accordingly,  is  not  hampered  in  the  disposition  of  this  cause   by 
authority,  but  may  proceed  upon  principle.  .  .  . 

"  In  the  view  of  these  principles  the  defendants  had  the  right  to  set  up  the  Statute 
of  Frauds.  I  think  that  this  was  so  even  as  to  the  clapboards.  Although  not  strictly  in 
existence  as  clapboards,  they  fall  within  the  rule  in  Smith  v.  Central  Railroad  Company, 
4  Keyes,  180.  They  were  no  more  new  products  than  was  the  wood  in  that  case. 
There  was  simply  to  be  gone  through  with  a  process  of  dividing  and  adapting  exi-tin*.' 
materials  to  the  "plaintiffs'  use.     It  would  be  difficult  to  distinguish  between  splitting 


734  PARKER   V.    STAMLAND.  [CHAP.  VI. 

SECTION   IT. 

"  Goods,  Wares,  and  Merchandises." 

PARKER    v.    STANILAND. 

In  the  King's  Bench,  June  13,   1809. 

[Reported  in  11  East,  362.  J 

The  plaintiff  declared  that  the  defendant  was,  on  the  1st  of  January, 
1809,  indebted  to  him  in  £500  for  a  certain  crop  of  potatoes  of  the 
plaintiff  before  that  time  bargained  and  sold  by  the  plaintiff  to  the 
defendant  at  his  request,  and  by  the  defendant  under  that  bargain  and 
sale  before  that  time  accepted,  gathered,  dug  up,  taken,  and  carried 
away  ;  and  being  so  indebted  the  defendant  promised  to  pay,  &c. 
There  was  another  similar  count  on  a  quantum  meruit,  and  other  gen- 
eral counts  for  goods  sold  and  delivered,  &c.  The  defendant  pleaded 
the  general  issue,  and  paid  £22  Is.  9d.  into  court.  It  appeared  at  the 
trial  before  Ray  ley,  J.,  at  Nottingham,  that  the  plaintiff,  being  the 
owner  of  a  close  of  about  two  acres,  which  was  cropped  with  potatoes, 
agreed  with  the  defendant  on  the  21st  of  November  to  sell  him  the 
potatoes  at  4s.  Gd.  a  sack.  The  defendant  was  to  get  them  himself, 
and  to  get  them  immediately.  The  defendant  employed  men  to  dig 
the  potatoes  on  the  25th,  26th,  and  27th  of  the  same  month,  and  got 
twenty-one,  twentj'-four,  and  thirty-three  sacks  full,  and  on  the  4th  of 
December  he  got  seven  sacks  more,  and  fourteen  about  Lady-day,  the 
value  of  which  was  covered  by  the  money  paid  into  court.  But  there 
remained  about  three  roods  of  potatoes  which  were  not  dug  up,  and 
which  were  spoiled  b}'  the  frost ;  and  the  action  was  brought  to  recover 
the  value  of  these.  The  objection  taken  at  the  trial  was,  that  this  was 
an  agreement  for  an  interest  in  land,  which,  not  having  been  reduced 
to  writing,  was  void  b}r  the  Statute  of  Frauds,  29  Car.  2,  c.  3,  §  4. 
But  the  learned  judge  overruled  the  objection,  and  permitted  the 
plaintiff  to  take  a  verdict  for  the  amount;  reserving  leave  to  the  de- 
fendant to  move  to  enter  a  nonsuit,  if  the  court  should  think  the 
objection  well  founded. 

Clarke  and  Hemming  now  showed  cause  against  the  rule. 

Balguy  and  Balguy,  Jr.,  in  support  of  the  rule. 

planks  into  clapboards,  and  trees  into  wood.  No  especial  skill  is  required,  as  all  the 
work  is  done  by  machinery  in  general  use,  and  readily  managed  by  any  producers  of 
ordinary  intelligence.  The  case  bears  no  resemblance  to  that  of  Parsons  v.  Loucks, 
where  the  product  was  to  be  created  from  materials  in  no  respect  existing  in  the  form 
of  paper.  The  cases  would  have  been  more  analogous  had  the  contract  in  that  case 
been  to  divide  large  sheets  of  paper  into  small  ones,  or  to  make  packages  of  envelopes 
from  existing  paper.  In  fJilman  v.  Hall,  .It;  N.  II.  311,  it  was  held  that  a  contract  for 
sheep  pelts  to  be  taken  from  sheep  was  a  contract  For  things  iu  existence  and  a  sale." 


SECT.  II.]  EVANS    T.    ROBERTS,  735 

Lou i)  Ellenborough,  C.  J.  It  does  not  follow  that  because  the 
potatoes  were  not  at  the  time  of  the  contract  in  the  shape  of*  personal 
chattels,  as  not  being  severed  from  the  land,  so  that  larceny  might  be 
committed  of  them,  therefore  the  contract  for  the  purchase  of  them 
passed  an  interest  in  the  land  within  the  4th  section  of  the  Statute 
of  frauds.  The  contract  here  was  confined  to  the  sale  of  the  potatoes, 
and  not  lung  else  was  in  the  contemplation  of  the  parties.  It  is  prob- 
able that  in  the  course  of  nature  the  vegetation  was  at  an  end  ;  but  be 
that  as  it  may,  they  were  to  be  taken  by  the  defendant  immediately, 
and  it  was  quite  accidental  if  they  derived  any  further  advantage  from 
being  in  the  land.  This  differs  the  present  case  from  those  winch  have 
been  cited.  The  lessee  prima  vestures  may  maintain  trespass  quart 
clausum  /regit,  or  ejectment  for  injuries  to  his  possessory  right ;  but 
this  defendant  could  not  have  maintained  either ;  for  he  had  no  right  to 
the  possession  of  the  close  ;  he  bad  only  an  easement,  a  right  to  come 
upon  the  land  for  the  purpose  of  taking  up  and  carrying  away  the 
potatoes  ;  but  that  gave  him  no  interest  in  the  soil.  I  am  not  disposed 
to  extend  the  case  of  Crosby  r.  Wadsworth  further,  so  as  to  bring  such 
a  contract  as  this  within  the  Statute  of  Frauds  as  passing  an  interest 
in  land. 

Grose  and  Le  Blanc,  J  J.,  agreed. 

Bayley,  J.  I  do  not  think  that  this  contract  passed  an  interest  in 
the  land  within  the  meaning  of  the  4th  section  of  the  Statute  of 
Frauds.  In  the  cases  of  Crosby  v.  Wadsworth  and  Waddington  v. 
Bristow  the  contracts  were  made  for  the  growing  crops  of  grass  and 
hops,  and  therefore  the  purchasers  of  the  crops  had  an  intermediate 
interest  in  the  land  while  the  crops  were  growing  to  maturity  before 
they  were  gathered  :  but  here  the  land  was  considered  as  a  mere  ware- 
house for  the  potatoes  till  the  defendant  could  remove  them,  which  he 
was  to  do  immediately  ;  and  therefore  I  do  not  think  that  the  case  is 
within  the  statute.  Rule  discharged. 


EVANS  v.   BOBERTS. 
In  the  King's  Bench,  Trinity  Term,  1826. 

[Reported  in  5  Barneicall  <j-  Cressvcll,  829  ] 

Indebitatus  assumpsit,  for  crops  of  potatoes  bargained  and  sold. 
Plea,  the  general  issue.  At  the  trial  before  Garrow,  B.,  at  the  Spring 
Assizes  for  the  county  of  Monmouth,  182G,  it  appeared  that  on  the 
25th  of  September  a  verbal  agreement  was  made  between  the  plaintiff 
and  defendant,  by  which  the  defendant  agreed  to  purchase  of  the  plain- 
tiff a  cover  of  potatoes  then  in  the  ground,  to  be  turned  up  by  the 
plaintiff,  at  the  price  of  £5,  and  the  defendant  paid  one  shilling  earnest. 
It  was  objected  that  this  was  a  contract  or  sale  of  an  interest  in  or  con- 
cerning land,  within  the  meaning  of  the  4th  section  of  the  Statute  of 


736  EVANS  V.    ROBERTS.  [CHAP.  VI. 

Frauds.  The  learned  judge  was  of  opinion  that,  as  the  seller  was  to 
turn  up  the  potatoes,  the  contract  did  not  give  the  buyer  any  interest 
in  the  land  ;  and  he  directed  a  verdict  to  be  found  for  the  plaintiff,  but 
reserved  liberty  to  the  defendant  to  move  to  enter  a  nonsuit.  A  rule 
nisi  having  been  obtained  accordingly, 

Justice  now  showed  cause. 

Ludlow,  contra. 

Bayley,  J.  I  am  of  opinion  that  in  this  case  there  was  not  a  con- 
tract for  the  sale  of  any  lands,  tenements,  or  hereditaments,  or  any 
interest  in  or  concerning  them,  but  a  contract  only  for  the  sale  and 
delivery  of  things  which,  at  the  time  of  the  delivery,  should  be  goods 
and  chattels.  It  appears  that  the  contract  was  for  a  cover  of  pota- 
toes ;  the  vendor  was  to  raise  the  potatoes  from  the  ground  at  the 
request  of  the  vendee.  The  effect  of  the  contract  therefore  was  to 
give  to  the  buyer  a  right  to  all  the  potatoes  which  a  given  quantity  of 
land  should  produce,  but  not  to  give  him  any  right  to  the  possession  of 
the  land  ;  he  was  merely  to  have  the  potatoes  delivered  to  him  when 
their  growth  was  complete.  Most  of  the  authorities  cited  in  the  course 
of  the  argument,  to  show  that  this  contract  gave  the  vendee  an  interest 
in  the  land  within  the  meaning  of  the  4th  section  of  the  Statute  of 
Frauds,  are  distinguishable  from  the  present  case.  In  Crosby  v.  Wads- 
worth,  6  East,  602,  the  buyer  did  acquire  an  interest  in  the  land;  for  by 
the  terms  of  the  contract,  he  was  to  mow  the  grass,  and  must  therefore 
have  had  the  possession  of  the  land  for  that  purpose.  Besides,  in  that 
case  the  contract  was  for  the  growing  grass,  which  is  the  natural  and  per- 
manent produce  of  the  land,  renewed  from  time  to  time  without  cultiva- 
tion. Now,  growing  grass  does  not  come  within  the  description  of  goods 
and  chattels,  and  cannot  be  seized  as  such  under  nfi.fa.;  it  goes  to  the 
heir  and  not  to  the  executor  ;  but  growing  potatoes  come  within  the 
description  of  emblements,  and  are  deemed  chattels,  by  reason  of  their 
being  raised  by  labor  and  manurance.  The}*  go  to  the  executor  of 
tenant  in  fee-simple,  although  they  are  fixed  to  the  freehold,  and  may  be 
taken  in  execution  under  a  fi.  fa.,  by  which  the  sheriff  is  commanded 
to  lev}'  the  debt  of  the  goods  and  chattels  of  the  defendant  ;  and  if 
a  growing  crop  of  potatoes  be  chattels,  then  they  are  not  within  the 
provisions  of  the  4th  section  of  the  Statute  of  Frauds,  which  relate  to 
lands,  tenements,  or  hereditaments,  or  any  interest  in  or  concerning 
them.  In  Parker  v.  Staniland,  11  East,  362,  the  ownerof  a  close  cropped 
with  potatoes  made  a  contract  on  the  21st  of  November  to  sell  them  at 
so  much  per  sack,  and  the  purchaser  was  to  raise  them  from  the  ground 
immediately  ;  and  that  was  held  not  to  be  a  contract  for  any  interest  in 
or  concerning  land.  In  that  case,  as  well  as  in  Warwick  r.  Bruce,  2  M. 
&  S.  205,  the  potatoes  had  ceased  to  grow  ;  and  therefore  they  are  dis- 
tinguishable from  the  present;  but  the  reasoning  of  Lord  Ellenborough 
in  the  latter  case  may  assist  us  in  coming  to  a  right  conclusion  in  the 
present;  he  there  says:  "If  this  had  been  a  contract  conferring  an 
exclusive  right  to  the  land  for  a  time,  for  the  purpose  of  making  a  profit 


SECT.  II.]  EVANS   V.    ROBERTS.  737 

of  the  growing  surface,  it  would  be  a  contract  for  the  sale  of  an  inter- 
est in  or  concerning  lands,  and  would  then  fall  unquestionably  within 
the  range  of  Crosby  v.  Wadsworth,  supra.     But  here  is  a  contract  for 

the  sale  of  potatoes  at  so  much  per  acre  :  the  potatoes  are  the  subject- 
matter  of  sale ;  and  whether  at  the  time  of  sale  they  were  covered 
with  earth  in  the  field,  or  in  a  box,  still  it  was  a  sale  of  a  mere  chattel." 
It  does  not  appear  that  the  other  judges  gave  any  opinion  upon  that 
point ;  but  it  is  clear  that  Lord  Kllenborongh's  judgment  proceeded 
upon  the  ground  that  if  the  contract  gave  to  the  vendee  no  right  to 
the  land  so  as  to  enable  him  to  make  a  profit  of  the  growing  surface, 
then  it  was  not  to  be  considered  as  giving  an  interest  in  the  land,  hut 
merely  in  a  chattel.  The  opinion  delivered  by  Mansfield,  C.I.,  in  Km- 
merson  v.  Heelis,  2  Taunt.  3<S,  is  certainly  at  variance  with  our  judgment 
in  the  present  case.  But  it  is  first  to  be  observed  that  it  was  not  neces- 
sary in  that  case  for  the  court  to  decide  the  question  upon  the  4th  section 
of  the  Statute  of  Frauds,  for  the  contract  was  signed  by  the  auctioneer 
as  the  agent  of  the  buyer,  and  was  equally  binding  whether  it  was  for 
a  sale  of  goods  and  chattels  or  of  an  interest  in  land.  The  plaintiff 
there  put  up  to  sale  on  the  25th  of  September,  by  public  auction,  a 
crop  of  turnips  then  growing  on  his  land,  in  separate  lots,  and  under 
certain  conditions  of  sale.  The  defendant,  by  his  agent,  attended  at 
the  sale,  and  being  the  highest  bidder  for  twenty-seven  different  lots, 
was  declared  to  be  the  purchaser ;  and  the  name  of  the  defendant  was 
written  in  the  sale-bill  opposite  to  each  particular  lot  for  which  he  had 
been  declared  the  highest  bidder.  Mansfield,  C.  J.,  there  says  :  "  As  to 
this  being  an  interest  in  the  land,  we  do  not  see  how  it  can  be  distin- 
guished from  the  case  of  hops  decided  in  this  court;  and  if  the  auc- 
tioneer is  an  agent  for  the  purchaser,  then  the  Statute  of  Frauds  is 
satisfied,  because  the  memorandum  in  writing  is  signed  by  an  agent  for 
the  party  to  be  charged  therewith."  The  ground  of  the  Lord  Chief  Jus- 
tice's opinion,  as  to  the  contract  giving  the  purchaser  an  interest  in  land, 
was  that  the  case  could  not  be  distinguished  from  that  of  Waddington  v. 
Bristow,  2  Bos.  &  Pul.  452.  It  becomes  necessary  therefore  to  consider 
whether  the  two  cases  be  similar.  In  the  latter  case  the  contract  was 
made  in  November  for  all  the  hops  which  should  be  grown  in  the  ensu- 
ing year  upon  a  given  number  of  acres  of  land.  At  that  time  the  hops 
which  were  the  subject  of  the  contract  were  not  in  existence  ;  there  was 
nothing  but  the  root  of  the  plant,  and  the  purchaser  was  not  to  have 
that.  The  question  in  that  case  was,  not  whether  the  agreement, 
which  was  in  writing,  was  for  an  interest  in  the  land,  but  whether  it 
ought  to  have  been  stamped.  It  was  contended  that  it  was.  within  the 
exception  in  the  stamp  act,  an  agreement  made  for  and  relating  to  the 
sale  of  goods,  wares,  and  merchandise.  All  the  judges  concurred  in 
the  judgment  that  the  contract  in  that  case  was  not  an  agreement  for 
the  sale  of  goods,  wares,  and  merchandise  ;  but  their  opinions  were 
founded  upon  different  reasons.  Lord  Alvanley  thought  that  it  was  an 
agreement  for  the  sale  of  goods,  wares,  and  merchandise,  and  some- 

47 


738  EVANS   V.    ROBERTS.  [CHAP.  VI. 

tiling  more,  viz.,  for  the  produce  of  the  land  in  a  certain  state  at  the 
time  of  delivery.  The  opinions  of  Heath  and  Rooke,  JJ.,  proceeded 
on  the  ground  that  the  hops  at  the  time  of  the  contract  did  not  exist 
as  goods,  wares,  and  merchandise.  Chambre,  J.,  was  the  only  judge 
who  intimated  an  opinion  that  the  contract  gave  the  vendee  an  interest 
in  the  land.  He  certainly  stated  that  the  contract  gave  the  vendee  an 
interest  in  the  produce  of  the  whole  of  that  part  of  the  vendor's  farm 
which  consisted  of  hop-grounds.  I  concur  in  opinion  with  the  three 
learned  judges  who  thought  in  that  case  that  the  hops  were  not  goods, 
wares,  and  merchandise,  at  the  time  of  the  contract ;  but  I  do  not  agree 
with  Lord  Chief  Justice  Mansfield  that  there  was  no  distinction  be- 
tween the  hops  in  that  case  and  the  growing  turnips  in  the  case  of 
Emmerson  v.  Heelis,  because  I  think  that  in  the  latter  case  the  grow- 
ing turnips  at  the  time  of  the  contract  were  chattels.  It  has  been 
insisted  that  the  right  to  have  the  potatoes  remain  in  the  ground  is  an 
interest  in  the  land  ;  but  a  party  entitled  to  emblements  has  the  same 
right,  and  yet  he  is  not  by  virtue  of  that  right  considered  to  have  any 
interest  in  the  land.  For  the  land  goes  to  the  heir,  but  the  emble- 
ments go  to  the  executor.  In  Tidd's  Practice,  1039,  it  is  laid  down 
that  under  a  fieri  facias  the  sheriff  may  sell  fructus  industriales,  as 
corn  growing,  which  goes  to  the  executor,  or  fixtures  which  may  be 
removed  by  the  tenant ;  but  not  furnaces,  or  apples  upon  trees,  which 
belong  to  the  freehold  and  go  to  the  heir.  The  distinction  is  between 
those  things  which  go  to  the  executor  and  those  which  go  to  the  heir. 
The  former  may  be  seized  and  sold  under  the  fi.  fa.  ;  the  latter  cannot. 
The  former  must  therefore,  in  contemplation  of  law,  be  considered 
chattels.  It  appears  therefore  that,  when  it  was  necessary  at  common 
law  to  distinguish  between  what  was  land  and  what  was  not,  a  grow- 
ing crop  produced  by  the  labor  and  expense  of  the  occupier  of  lands 
was,  as  the  representative  of  that  labor  and  expense,  considered  an 
independent  chattel,  not  going  as  the  land  goes,  but  in  a  different 
direction.  Upon  the  same  principle  the  purchaser  of  a  growing  crop, 
who  by  his  contract  acquired  a  right  to  have  the  crop  continue  in  the 
land  of  the  seller  until  it  arrived  at  maturity,  must,  before  the  passing 
of  the  Statute  of  Frauds,  have  been  considered  to  have  had  an  interest 
not  in  the  land,  but  in  a  chattel  independent  of  the  land  ;  and  that 
being  so,  I  cannot  suppose  that  by  the  4th  section  of  that  statute, 
which  enacts  that,  unless  certain  provisions  be  complied  with,  no  action 
shall  be  brought  upon  any  contract  or  sale  of  any  interest  in  or  con- 
cerning lands,  tenements,  or  hereditaments,  the  Legislature  contem- 
plated, as  the  subject-matter  of  such  contract  or  sale,  that  interest 
which  passes  from  a  vendor  to  a  vendee  by  a  sale  of  a  growing  crop  of 
potatoes.  The  statute  56  G.  3,  c.  50,  indeed,  is  a  legislative  declaration 
thai  growing  crops  may  be  seized  and  taken  in  execution  under  fi.  fa. 
It  prevents  their  being  so  seized  in  cases  where  the  tenant  is  restrained 
In  covenant  in  his  lease  from  removing  them  off  the  premises.  The  case 
of  Mayfield  v.  YYadsley,  3  B.  &  C  357,  also  shows  that  where  there  is  a 


SECT.  I.]  SMITH   V.    SUKMAN.  739 

sale  of  growing  crops,  distinct  from  an}'  assignment  or  letting  of  the 
land,  the  crops  do  not  constitute  purl  of  the  inheritance  or  any  interest 
in  land,  but  are  mere  chattels,  and  may  lie  recovered  under  a  count  for 
goods  bargained  and  sold.  Upon  these  grounds,  I  am  of  opinion  that 
there  was  not  in  this  case  any  contract  or  sale  of  lands,  tenements,  or 
hereditaments,  or  any  interest  in  or  concerning  them  within  the  4th 
section  of  the  Statute  of  Frauds ;  but  that  there  was  a  contract  for 
tin-  sale  of  goods,  wares,  and  merchandise  within  the  meaning  of  the 
17th  section,  though  not  to  the  amount  which  makes  a  written  note 
or  memorandum  of  the  bargain  necessary.  The  rule  for  entering  a 
nonsuit  must  therefore  be  discharged. 

Rule  discharged.1 


SMITH   v.    SURMAN. 
In  the  King's  Bench,  Easter  Term,  1829. 

[Reported  in  9  Barnewall  $•  Cresstcell,  561.] 

Declaration  stated  that  the  plaintiff  on,  &c,  at,  &c,  at  the  request 
of  the  defendant  bargained  with  the  defendant  to  sell  to  him,  and  the 
defendant  agreed  to  buy  of  the  plaintiff,  a  large  quantity  of  timber,  to 
wit,  230  feet  of  timber,  lying  and  being  in  and  upon  certain  lands  of 
the  plaintiff,  at  a  certain  rate  or  price,  to  wit,  at  the  rate  or  price  of 
eighteen  pence  for  each  and  ever}'  foot  thereof,  to  be  fetched,  taken, 
and  carried  away  by  the  defendant  from  the  said  lands  of  the  plaintiff; 
and  to  be  paid  for  by  the  defendant  at  the  rate  or  price  aforesaid  within 
a  reasonable  time  then  next  following ;  and  in  consideration  thereof, 
and  also  in  consideration  that  the  plaintiff  at  the  like  request  of  the 
defendant  had  undertaken  and  faithfully  promised  the  defendant  to 
permit  and  suffer  the  defendant  to  fetch,  take,  and  carry  away  the 
said  timber  from  the  lands  of  the  plaintiff,  the  defendant  undertook 
and  faithfully  promised  the  plaintiff  to  fetch,  take,  and  carry  away  the 
timber  from  the  lands  of  the  plaintiff,  and  to  pay  the  plaintiff  for  the 
same  at  the  rate  aforesaid  within  a  reasonable  time.  Breach,  that 
the  defendant  refused  to  fetch  and  carry  away  the  timber,  or  to  pay 
for  the  same.  There  were  counts  for  goods  bargained  and  sold,  and 
goods  sold  and  delivered.  Plea,  the  general  issue.  At  the  trial  before 
Vanghan,  B.,  at  the  summer  assizes  for  the  county  of  "Worcester,  1828? 
it  appeared  that  this  action  was  brought  to  recover  £17  3s.  Gd.,  the 
value  of  229  feet  of  ash  timber  at  Is.  Gd.  per  foot,  which  the  plaintiff 
had  agreed  to  sell  to  the  defendant  under  the  following  circumstances: 
The  plaintiff,  the  proprietor  of  a  coppice,  had  given  orders  to  have 
some  ash-trees  cut  down ;  and  the  defendant  on  the  7th  of  April, 
while  the  trees  were  in  the  course  of  being  cut,  and  after  two  of  them 

1  Holrotd  and  Littledale,  JJ.,  delivered  concurring  opinions. 


740  SMITH    V.    SURMAN.  [CHAP.  VL 

had  been  actually  felled,  came  to  the  coppice,  and  the  plaintiff  pointed 
out  to  him  the  trees,  which  were  numbered.  The  defendant,  after  he 
had  looked  at  them,  said  to  one  of  the  bystanders  that  he  had  made  a 
good  bargain,  and  told  one  of  the  persons  who  was  cutting  them,  to 
tell  the  other  men  to  cross  cut  them  fair,  and  they  were  cut  accordingly. 
The  defendant  afterwards  said  he  had  bought  ten  trees  only,  and  that 
the  reason  he  did  not  have  them  was  that  they  were  unsound.  After 
the  trees  were  cut  they  measured  229  feet  7  inches.  The  person  who 
measured  them  afterwards  met  the  defendant,  who  asked  him  if  he  had 
measured  the  timber  at  Mr.  Smith's,  and  receiving  an  answer  in  the 
affirmative,  the  defendant  offered  to  sell  him  the  butts  (which  he  alleged 
he  had  bought  of  Mr.  Smith)  ;  but  this  not  being  acceded  to,  the  de- 
fendant asked  him  if  he  knew  any  person  who  wanted  any  butts,  and 
then  said  he  would  go  to  Mr.  Smith's  and  convert  the  tops  into  build- 
ing stuff.  The  defendant  not  having  taken  the  timber  away,  the 
attorney  of  the  plaintiff,  by  his  direction,  wrote  the  following  letter  to 
the  defendant  upon  the  subject :  — 

Sir,  — I  am  directed  by  Mr.  Smith,  of  Norton  Hall,  to  request  you 
will  forthwith  pay  for  the  ash  timber  which  you  purchased  of  him.  The 
trees  are  numbered  from  one  to  fourteen,  and  contain,  upon  a  very  fair 
admeasurement,  229  feet  7  inches.  The  value  at  Is.  Gd.  per  foot 
amounts  to  the  sum  of  £17  3s.  Gd.  I  understand  your  objection  to 
complete  your  contract  is  on  the  ground  that  the  timber  is  faulty  and 
unsound  ;  but  there  is  sufficient  evidence  to  show  that  the  same  timber 
is  very  kind  and  superior,  and  a  superior  marketable  article.  I  under- 
stand you  object  to  the  manner  in  which  the  trees  were  cross-cut,  but 
there  is  also  evidence  to  prove  they  were  so  cut  by  your  direction. 
Unless  the  debt  is  immediately  discharged,  I  have  instructions  to  com- 
mence an  action  against  you. 

In  answer  to  this  letter  the  defendant  wrote  to  the  plaintiff's  attorney 
as  follows :  — 

Sir,  — I  have  this  moment  received  a  letter  from  you  respecting  Mr. 
Smith's  timber,  which  I  bought  of  him  at  Is.  Gd.  per  foot,  to  be  sound 
and  good,  which  I  have  some  doubts  whether  it  is  or  not,  but  he  promised 
to  make  it  so,  and  now  denies  it.  When  I  saw  him,  he  told  me  I  should 
not  have  any  without  all,  so  we  agreed  on  these  terms,  and  I  expected 
him  to  sell  it  to  somebod\*  else. 

Upon  this  evidence  it  was  objected  by  the  defendant's  counsel  that 
the  contract  was  one  for  the  sale  of  growing  trees,  and  therefore  for 
the  sale  of  an  interest  in  land,  and  he  cited  Scorell  v.  Boxall,  1  Younge 
&  Jervis,  •'>!<<; ;  or  assuming  that  it  wras  a  contract  for  the  sale  of  goods, 
wares,  and  merchandises,  the  price  being  £10  and  upwards,  and  there 
being  no  note  or  memorandum  of  the  contract  in  writing,  the  action  was 
not  maintainable.  The  learned  judge  directed  the  jury  to  find  a  ver- 
dict  for   the    plaintiff    for   £17   3s.    Gd.,   but   reserved   liberty   to  the 


SECT.  II.]  SMITH    V.    SURMAX.  741 

defendant  to  move    to   enter   a   nonsuit.     A    rule    nisi   having    been 
obtained  for  this  purpose, 

Russell,  Serjt.,  and  iShult,  now  showed  cause. 

JerviSf  contra,  was  stopped  by  the  court. 

Littledale,  J.  The  intention  of  the  Legislature  in  making  the 
statute  in  question  appears  by  the  preamble  to  have  been  to  prevent 
fraudulent  practices,  commonly  endeavored  to  be  upheld  by  perjury 
ami  subornation  of  perjury;  and  for  that  purpose,  in  order  to  pre- 
vent them,  it  requires  that  the  terms  of  contract  shall  be  reduced  to 
writing,  or  that  some  other  requisite  should  be  complied  with  to  show 
manifestly  that  the  contract  was  completed.  I  infer  from  the  preamble 
that  the  Legislature  intended  to  embrace  within  some  of  its  sections  the 
subject-matter  of  all  contracts.  The  various  contracts  enumerated  in 
the  several  sections  of  the  statute  seem  also  to  warrant  that  inference. 
The  first  section  enacts  that  parol  leases  shall  have  the  effect  of  leases 
at  will  only.  The  second  section  excepts  out  of  the  first  leases  not  ex- 
ceeding three  years,  where  the  rent  reserved  during  the  term  is  two- 
thirds  of  the  improved  value.  The  third  section  enacts  that  no  leases, 
either  of  freehold  or  terms  for  years,  shall  be  assigned,  granted,  or 
surrendered,  except  by  deed  or  note  in  writing.  The  first  three 
sections  apply  to  contracts  which,  before  the  statute,  were  usually, 
though  not  necessarily,  under  seal.  The  4th  section  applies  to  those 
parol  promises  or  agreements  which,  before  the  statute,  were  probably 
in  most  instances  reduced  into  writing,  but  which  need  not  have  been 
so.  That  section  enacts  that  no  action  shall  be  brought  in  such  cases, 
unless  the  agreement,  or  some  note  or  memorandum  thereof,  shall  be 
reduced  into  writing.  The  agreements  therein  described  are  a  special 
promise  by  an  executor  to  answer  damages  out  of  his  own  estate  ;  or  a 
special  promise  to  answer  for  the  debt  of  another  person  ;  or  an  agree- 
ment made  in  consideration  of  marriage  ;  or  any  contract  or  sale  of 
lands,  tenements,  or  hereditaments,  or  any  interest  in  or  concerning 
them  ;  or  any  agreement  not  to  be  performed  within  the  space  of  one 
year  from  the  making  thereof.  Such  contracts,  from  their  very  special 
nature  and  subject-matter,  would  probably  have  been  reduced  into 
writing.  The  statute  requires  that  they  shall  be  so.  The  oth  and  Gth 
sections  apply  to  devises  of  land.  The  7th,  8th,  9th,  10th,  and  11th, 
apply  to  declarations  of  trusts,  and  they  are  also  required  to  be  in  writ- 
ing. The  12th  section  makes  estates  per  aider  vie  devisable.  The  loth. 
14th,  loth,  and  16th  sections  apply  to  judgments  and  executions.  The 
17th  section  enacts  that  no  contract  for  the  sale  of  goods,  wares,  and 
merchandises,  for  the  price  of  £10  or  upwards,  shall  be  allowed  to  be 
good,  except  the  buyer  shall  accept  part  of  the  goods  so  sold  and 
actually  receive  the  same,  or  give  something  in  earnest  to  bind  the 
bargain  or  in  part  payment,  or  that  some  note  or  memorandum  of  the 
bargain,  in  writing,  be  made  and  signed  by  the  parties  to  be  charged 
by  such  contract,  or  their  agents  thereunto  properly  authorized.  Now, 
looking  to  the  object  of  the  statute  as  recited  in  the  preamble,  I  collect 


742  SMITH    V.    SUKMAN.  [CHAP.  VI. 

it  was  the  intention  of  the  Legislature  to  comprehend  within  the  4 tli 
and  17th  sections  the  subject-matter  of  every  parol  contract,  the  uncer- 
tainty in  the  terms  of  which  was  likely  to  produce  perjury  or  suborna- 
tion of  perjury.  A  contract  for  mere  work  and  labor  is  not  specifically 
mentioned  in  those  clauses ;  such  a  contract  therefore  may  not  be 
•within  the  statute. 

But  where  the  contracting  parties  contemplate  a  sale  of  goods, 
although  the  subject-matter  at  the  time  of  making  the  contract  does 
not  exist  in  goods,  but  is  to  be  converted  into  that  state  by  the  seller's 
bestowing  work  and  labor  on  his  own  raw  materials  :  that  is  a  case 
■within  the  statute.  It  is  sufficient  if,  at  the  time  of  the  completion 
of  the  contract  the  subject-matter  be  goods,  wares,  and  merchandise. 
I  cannot  assent  to  any  case  which  has  decided  that  such  a  contract  is 
not  within  the  statute. 

I  think  that  the  contract  in  this  case  was  not  a  contract  for  the  sale 
of  lands,  tenements,  or  hereditaments,  or  any  interest  in  or  concerning 
the  same,  within  the  meaning  of  the  4th  section.  Those  words  in  that 
section  relate  to  contracts  (for  the  sale  of  the  fee-simple,  or  of  some 
less  interest  than  the  fee),  which  give  the  vendee  a  right  to  the  use  of 
the  land  for  a  specific  period.  If  in  this  case  the  contract  had  been 
for  the  sale  of  the  trees,  with  a  specific  liberty  to  the  vendee  to  enter 
the  land  to  cut  them,  I  think  it  would  not  have  given  him  an  interest 
in  the  land  within  the  meaning  of  the  statute.  The  object  of  a  party 
who  sells  timber  is,  not  to  give  the  vendee  any  interest  in  his  land,  but 
to  pass  to  him  an  interest  in  the  trees  when  they  become  goods  and 
chattels.  Here  the  vendor  was  to  cut  the  trees  himself.  His  intention 
clearly  was,  not  to  give  the  vendee  any  property  in  the  trees  until  they 
were  cut  and  ceased  to  be  part  of  the  freehold.  I  think  therefore  that 
there  was  not  in  this  case  any  contract  or  sale  of  any  interest  in  lands. 

Then  assuming  the  contract  not  to  be  within  the  4th  section,  the 
question  arises,  Whether  it  is  within  the  17th  section?  It  was 
formerly  held  that  where  the  goods,  which  were  the  subject-matter  of 
the  sale,  were  not  to  be  delivered  till  a  future  day,  as  one  of  the  three 
things  required  by  that  section  of  the  statute,  viz.,  a  part  acceptance, 
could  not  be  complied  with  at  the  time  of  the  contract,  it  was  not  a 
case  within  that  section  of  the  statute  ;  but  later  authorities  l  have 
established  that  such  a  contract,  whether  the  goods  are  or  are  not  to 
be  delivered  immediately,  is  within  the  statute.  Those  cases  there- 
fore have  established  that  if  two  of  the  things  required  by  the  17th 
section  can  at  the  time  of  the  contract  be  carried  into  effect,  the 
case  is  within  it,  although  one  cannot  be  complied  with.  There  is 
another  class  of  cases,2  where  the  article  contracted  for  has  not  existed 
at  the  time  of  the  contract,  but  is  to  be  produced  by  work  and  labor 
i')  be  bestowed  by  the  vendor;  as  where  the  contract  was  for  a  quan- 

1  Rondeau  v.  Wyatt,  2  II.  Bl.  67  ;  Cooper  v.  Elston,  7  T.  R.  14  ;  Alexander  v. 
Comber,  1  II.  Bl.  21. 

2  Towers  v.  Osborne,  1  Stra  506  ;  Groves  v.  Buck,  S  M.  &  S.  179. 


SECT.  II.]  SMITH    V.    SURMAN.  743 

tit}'  of  oak  pins  which  had  not  been  made,  but  were  to  be  cut  out  of 
slabs,  or  for  a  chariot  to  be  built.  In  those  cases  the  contract  has  been 
considered  rather  as  a  contract  for  work  and  labor  than  for  the  sale 
of  goods,  wares,  and  merchandise,  and  not  within  the  statute.  The 
impression  on  my  mind  however  is,  that  wherever  the  subject-matter 
at  the  time  of  the  completion  of  the  contract  is  goods,  wares,  and 
merchandise,  this  section  of  the  statute  attaches  upon  it,  although  it 
has  become  goods,  wares,  and  merchandise,  between  the  time  of  mak- 
ing and  completing  the  contract,  either  by  one  of  the  parties  having 
bestowed  his  work  and  labor  upon  his  own  materials,  or  by  his  having 
converted  a  portion  of  his  freehold  into  goods  and  chattels.  The  pro- 
visions of  the  statute  are  more  necessary  in  cases  where  the  contract 
is  to  be  executed  at  a  future  period,  than  where  it  is  to  be  executed 
immediately.  From  the  uncertainty  in  the  terms  of  bargains  to  be 
completed  at  a  future  period,  disputes  are  more  likely  to  arise,  and  the 
consequent  perjury  which  it  was  the  object  of  the  statute  to  prevent. 
In  the  case  of  the  chariot,  for  instance,  a  dispute  might  at  any  time 
before  its  completion  have  arisen  respecting  the  quality  of  the  materials 
of  which  it  was  to  be  composed,  or  the  color  which  it  was  to  be 
painted,  and  in  those  respects  it  would  have  been  necessary  to  have 
recourse  to  verbal  testimony  to  prove  the  terms  of  the  contract,  which 
it  was  the  very  object  of  the  statute  to  prevent.  I  am  therefore  of 
opinion  that  the  contract  in  this  case  was  a  contract  for  the  sale  of 
goods,  wares,  and  merchandise,  within  the  17th  section.  I  think 
also  that  there  is  no  sufficient  note  in  writing  of  the  contract.  The 
plaintiffs  attorney  in  his  letter  speaks  of  it  as  a  contract  for  the  sale 
of  so  much  timber,  at  so  much  per  foot,  without  reference  to  quality. 
The  defendant  in  his  letter  states  that  it  was  a  contract,  with  a  condi- 
tion that  the  timber  should  be  sound  and  good,  though  the  plaintiff  had 
subsequently  denied  that  that  was  one  of  the  terms  of  the  contract.  I 
think  also,  for  the  reasons  stated  by  my  brother  Bayley,  that  there  was 
no  part-acceptance  of  the  goods  to  satisfy  the  statute.1 

Rule  absolute.'2 

1  Bayley  and  Park,  JJ.,  delivered  concurring  opinions. 

2  In  Rodwell  p.  Phillips,  9  M.  &  W.  501,  505,  Lord  Abinger,  C.  B.,  referring  to  the 
foregoing  case,  said  :  "  Undoubtedly  there  is  a  case  in  which  it  appears  that  a  contract 
to  sell  timber  growing  was  not  held  to  convey  any  interest  in  the  laud,  but  that  was 
where  the  parties  contracted  to  sell  the  timber  at  so  much  per  foot,  and  from  the 
nature  of  that  contract  it  must  be  taken  to  have  been  the  same  as  if  the  parties  had 
contracted  for  the  sale  of  timber  already  felled." 


744  MARSHALL   V.    GREEN.  [CHAP.  VL 


SAINSBURY  v.   MATTHEWS. 
In  the  Exchequer,  Michaelmas  Term,  1838. 

[Hi  ported  in  4  Meeson  <V    Welsh//,  343.] 

This  was  an  action  of  assumpsit  to  recover  damages  for  the  breach 
of  a  contract  by  the  defendant  to  sell  and  deliver  to  the  plaintiff  a  cer- 
tain quantity  of  potatoes.1 

At  the  trial  before  Coltman,  J.,  at  the  last  Wiltshire  assizes,  it  was 
proved  that  the  plaintiff  and  defendant  being  together  at  an  inn  at 
Erlstoke,  in  June,  1836,  the  defendant  said  he  had  got  100  lugs  of  pota- 
toes, and  he  would  sell  them  at  two  shillings  a  sack.  The  plaintiff  said 
he  would  have  them  ;  and  it  was  agreed  that  the  plaintiff  was  to  have 
them  at  that  price  at  digging-up  time,  and  that  he  should  find  diggers. 
When  the  potatoes  were  ripe,  the  plaintiff  accordingly  sent  diggers  to 
take  them  up  ;  but  the  defendant  refused  to  permit  them  to  do  so. 

The  jury  having  found  for  the  plaintiff,  damages  £5  10s., 

Crowder  now  moved,  pursuant  to  leave  reserved  by  the  learned  judge, 
to  enter  a  nonsuit. 

Lord  Abinger,  C.  B.  I  think  this  was  not  a  contract  giving  an 
interest  in  the  land  ;  it  is  only  a  contract  to  sell  potatoes  at  so  much  a 
sack  on  a  future  day,  to  be  taken  up  at  the  expense  of  the  vendee.  He 
must  give  notice  to  the  defendant  for  that  purpose,  and  cannot  come 
upon  the  land  when  he  pleases. 

Parke,  B.  This  is  a  contract  for  the  sale  of  goods  and  chattels  at  a 
future  day,  the  produce  of  certain  land,  and  to  be  taken  away  at  a  cer- 
tain time.  It  gives  no  right  to  the  land  :  if  a  tempest  had  destroyed 
the  crop  in  the  mean  time,  and  there  had  been  none  to  deliver,  the  loss 
would  clearly  have  fallen  upon  the  defendant.  The  case  is  stronger 
than  that  of  Evans  v.  Roberts,  because  here  there  is  only  a  stipulation 
to  pay  so  much  per  sack  for  the  potatoes  when  delivered  ;  it  is  only  a 
contract  for  goods  to  be  sold  and  delivered.  In  that  case  all  the 
authorities  were  reviewed,  and  the  result  of  them  clearly  laid  down. 

Gurnet,  B.,  concurred.  Rule  refused. 


MARSHALL  v.   GREEN. 
In  the  Common  Pleas,  November  6,  1875. 
[Reported  in  Law  Reports,  1  Common  Pleas  Division,  35.] 

Lord  Coleridge,  C.J.  This  is  an  action2  in  respect  of  the  entry 
by  tin'  defendant  upon  certain  land  in  the  occupation  of  the  plaintiff  s 

1  Only  so  much  of  this  r-.\*c  is  given  as  relates  to  the  question  whether  the  subject 
of  tin;  sale  was  goods,  wares,  or  merchandise,  within  the  meaning  of  the  statute  of 
Frauds 

-  The  declaration  contained  :  1st  conn!  for  trespass  to  land  and  catting  down  certain 
tree    of  the  plaintiff;  2nd,  trover;  3rd,  for  an  injury  to  the  plaintiff's  reversion. 


SECT.  II.]  MARSHALL   V.    GREEN.  745 

tenant,  and  the  cutting  clown  of  certain  trees.     The  facts  were  these. 
The  plaintiff  was  the  owner  in  lee  of  a  copyhold  tenement   on  which 
certain   timber  trees   were   growing.     The   tenement   was   under   lease, 
but  the   custom  of  the  manor  reserved   the  trees  upon  the  tenement 
leased  to  the  owner  in  fee  of  the  copyhold  tenement.     The  plaintiff  had 
communicated  with  the  defendant,  a  limber  merchant,  on  the  subject 
of  his  wish  to  sell  the  trees;  but  some  question  had  arisen  as  to  the 
number  of  the  trees,  and  it  was  agreed  that  the  plaintiff  and  defendant 
should  go  over  the  land  together  to  inspect  the  trees.     On  the  27th  of 
February   they    went   over   the   land   for   that  purpose,    and   there    was 
then  a  parol  sale  of  twenty-two  trees,  at  the  price  of  £2G,  and  it  was 
arranged  that   the  trees  should   be   "got  away   as   soon   as  possible." 
The   defendant's    servants    entered,  and   on    the    2d,  3d,  and    4th   of 
March,  they  cut  down  the  trees.     On  the  2d  of  March,  after  six  trees 
had  been  cut  down,  the  plaintiff  wrote  countermanding  the  sale.     The 
defendant  had  sold  the  tops  and  stumps  before  receipt  of  the  letter  of 
countermand  ;   but,  though  sold  before,  they  were  not  taken  away  until 
after  such  letter  was  received.     If  there  was  a  valid  contract  for  the 
sale  of  the  trees,  the  plaintiff  must  fail ;  the  trees  had  been  sold,  and 
the  property  had  passed  ;   the  land  was  not  in  the  plaintiffs  possession, 
but  his  tenant's,  and  the  defendant  had  a  perfect  right  to  do  what  he 
did.      It  is  not  denied  that  there  was  a  verbal  contract,  and  the  ques- 
tion therefore  is  whether  this  was  a  contract  which  required  to  be  in 
writing  under  the  Statute  of  Frauds.     If  so,  the  defendant  was  in  the 
wrong,   because   there   was   no   such  contract.     The   first  question  is 
whether  this  was  a  contract  within  the  4th  section,  as  being  a  "con- 
tract or  sale  of  lands,  tenements,  or  hereditaments,  or  any  interest  in 
or  concerning  them."     These  words  have  given  rise  to  a  great  deal  of 
discussion,  and  very  high  authorities  have   said  that  it  is  impossible 
to  reconcile  all  the  decisions  on  the  subject.     If  the  matter  were  res 
Integra.  I  should  be  inclined  to  think  that  there  was  much  to  be  said 
for  Littledale,   J.'s   view,   that  the  words   of  the    statute  were   never 
meant  to   apply  to  such  a  matter  as  this  at  all.  but  only  referred  to 
such  interests  as  are  known  to  conveyancers.     It  is,  however,  too  late 
now  to  maintain  this  view,  inasmuch  as  there  are  a  great  number  of 
decisions   which   proceed   on   the    opposite   view.     It    is    clear    on    the 
decisions  that  there  are  certain  natural  growths  which,  under  certain 
circumstances,  have  been  held  to  be  within  the  words  of  the  section, 
and  a  contract  with  respect  to  which  must,  therefore,  be  in   writing. 
The  question  then   is.   what  the  rule  is  to  be.     The  matter  has  been 
much  discussed,  and   for  my   part  I  despair  of  laying  down   any  rule 
which  can  stand  the  test  of  every  conceivable  case.     If  it  is  said  that 
there   is   an    interest   in   land  within   the   section   when   the   sale  is   of 
something  which,  before  it  is  taken  away,  is  to  derive  benefit  from   the 
land,  and  to  become  altered  by  virtue  of  what  it  draws  from   the  soil, 
the  rule-  is  an  intelligible  one,  but  one  which  it  is  almost  impossible  to 
apply  with  absolute  strictness.     The  effect  of  such  a  rule,  if  strictly 


746  MARSHALL  V.    GREEN.  [CHAP.  VI. 

applied,  would  vary  at  different  times  of  the  year.  If  the  sale  were  in 
the  spring,  and  the  removal  of  the  thing  sold  were  to  be  postponed  but 
for  two  or  three  days,  it  would  not,  at  its  severance,  in  strictness,  be 
in  the  same  state  as  it  was  at  the  time  of  the  sale.  On  the  other  hand, 
in  winter,  when  the  sap  is  out  of  the  tree,  and  it  is  standing,  as  it 
were,  (had  for  the  time  being,  there  would  be  no  appreciable  change. 
It  is  almost  impossible  to  say  that  the  rule  can  be  that,  wherever 
anything  however  small,  is  to  pass  into  that  which  grows  on  the  land, 
out  of  the  land,  between  the  sale  and  the  reduction  into  possession, 
the  contract  is  within  the  section. 

I  find  the  following  statement  of  the  law  with  regard  to  this  subject, 
which  must  be  taken  to  have  received  the  sanction  of  that  learned 
judge,  Sir  Edward  Vaughan  Williams,  in  the  notes  in  the  last  edition 
of  Williams'  Saunders,  upon  the  case  of  Duppa  v.  Mayo,  p.  395  :  "The 
principle  of  these  decisions  appears  to  be  this,  that  wherever  at  the 
time  of  the  contract  it  is  contemplated  that  the  purchaser  should  derive 
a  benefit  from  the  further  growth  of  the  tiling  sold  from  further  vegeta- 
tion and  from  the  nutriment  to  be  afforded  by  the  land,  the  contract  is 
to  be  considered  as  for  an  interest  in  land  ;  but  where  the  process  of 
vegetation  is  over,  or  the  parties  agree  that  the  thing  sold  shall  be 
immediately  withdrawn  from  the  land,  the  land  is  to  be  considered  as 
a  mere  warehouse  of  the  thing  sold,  and  the  contract  is  for  goods. 
This  doctrine  has  been  materially  qualified  by  later  decisions,  and  it 
api tears  to  be  now  settled  that,  with  respect  to  emblements  or  fructus 
industrial!  s,  &c,  the  corn  and  other  growth  of  the  earth  which  are 
produced  not  spontaneously,  but  by  labor  and  industry,  a  contract  for 
the  sale  of  them  while  growing,  whether  they  are  in  a  state  of  maturity 
or  whether  they  have  still  to  derive  nutriment  from  the  land  in  order  to 
bring  them  to  that  state,  is  not  a  contract  for  the  sale  of  any  interest 
in  land,  but  merely  for  the  sale  of  goods."  The  propositions  so  laid 
down,  as  applied  to  the  present  case,  seem  to  afford  a  very  clear  and 
intelligible  rule.  Planted  trees  cannot  in  strictness  be  said  to  be  pro- 
duced spontaneously,  yet  the  labor  employed  in  their  planting  bears 
so  small  a  proportion  to  their  natural  growth,  that  they  cannot  be  con- 
sidered as  fmctus  industrials  ;  but  treating  them  as  not  being  fructus 
indnstriales,  the  proposition  is,  that  where  the  thing  sold  is  to  derive 
no  benefit  from  the  land,  and  is  to  be  taken  away  immediately,  the 
contract  is  not  for  an  interest  in  land.  Here  the  contract  was  that  the 
trees  should  be  got  away  as  soon  as  possible,  and  they  were  almost 
immediately  cut  down.  Apart  from  any  decisions  on  the  subject,  and 
as  a  matter  of  common-sense,  it  would  seem  obvious  that  a  sale  of 
twenty-two  trees,  to  be  taken  away  immediately,  was  not  a  sale  of  an 
interest  in  land,  but  merely  of  SO  much  timber. 

There  do  not  seem  to  be  any  decisions  which  prevent  our  deciding  in 
conformity  with  the  common-sense  of  the  matter.  On  the  contrary, 
there  is  a  case  of  Smith  v.  Surinam  0  B.  &  C.  561,  in  which  the  Court 
of    Onion's    Bench   held,  under   circumstances   very   like  those  of  the 


SECT.  II.]  MARSHALL   V.    GREE3T.  747 

present  case,  that  there  was  no  contract  for  an  interest  in  land.  The 
only  distinction  that  I  can  see  between  that  and  the  present  case  is, 
that  there  the  trees  were  to  be  cut  by  the  vendor  ;  but  Littledale,  J., 
held  that,  "  if  in  that  case  the  contract  had  been  for  the  sale  of  the 
trees,  with  a  speeilic  liberty  to  the  vendee  to  enter  the  land  to  cut 
them,  it  would  not  have  given  him  an  interest  in  land,  within  the 
meaning  of  the  statute."  This  decision  has  never  been  questioned, 
and  has  been  adopted  in  subsequent  decisions.  It  seems  to  me,  there- 
fore, that  both  common-sense  and  authority  combine  to  show  that  tins 
was  not  a  contract    for  an  interest  in   land,   within   the  section. 

The  remaining  question  is.  whether  this  contract  was  within  the 
17th  section.  This  depends  on  whether  there  was  here  an  acceptance 
and  actual  receipt  of  part  of  the  goods.  There  have  been  many 
decisions  on  the  question,  what  amounts  to  such  an  acceptance  and 
receipt;  it  was  very  early  determined  that  an  actual  manual  receipt 
of  the  article  sold  was  not  necessary,  but  that  a  constructive  receipt 
would  do.  Here  six  of  the  trees  were  cut  down  before  the  sale  was 
countermanded,  and  at  a  time  when  it  must  be  taken  that  that  was 
done  with  the  assent  of  the  seller,  and  portions  were  sold.  What  more 
could  have  been  done  short  of  actually  removing  the  trees?  These 
were  bulky  trees,  that  a  man  could  not  carry  away  like  a  small  article. 
If  anything  short  of  actual  manual  possession  could  be  sufficient,  all 
was  done  that  could  be  done.  The  defendant  immediately  cuts  down 
the  trees,  and  converts  them  into  chattels,  and  deals  with  them  as 
owner  by  selling  the  tops  and  stumps.  In  the  absence  of  any  decision 
on  the  subject,  I  should  have  said  that,  if  it  be  once  admitted  that 
anything  short  of  actual  manual  possession  could  be  a  sufficient 
acceptance  and  receipt,  there  was  amply  sufficient  to  show  such  an 
acceptance  and  receipt  here.  But  we  are  not  without  authority  on  the 
subject.  There  have  been  repeated  decisions  that,  where  anything  has 
been  done  on  the  part  of  the  vendee,  under  such  a  contract  as  this,  to 
the  whole  or  part  of  the  goods,  indicating  an  intention  to  deal  with  the 
subject-matter  as  owner  in  possession,  and  he  is  allowed  by  the  vendor 
so  to  deal  with  it,  that  amounts  to  an  acceptance  and  receipt  within 
the  statute.  It  has  been  held,  with  regard  to  bulky  things,  that  the 
delivery  of  the  indicia  of  title  was  sufficient.  When  the  purchaser  had 
marked  the  goods,  and  lef'i  them  so  marked  on  the  vendor's  premises, 
it  was  held  that  there  was  a  sufficient  acceptance  and  receipt.  The 
case  of  Chaplin  v.  Rogers,  1  East,  192,  seems  to  me  to  be  a  distinct 
authority  for  the  view  that  there  was  an  acceptance  and  receipt  here, 
the  words  of  the  section  having  received  all  the  fulfilment  the  subject- 
matter  was  capable  of.  I  do  not  rely  on  the  circumstance  that  the  land 
was  in  the  possession  of  the  plaintiff's  tenant.  It  seems  to  me  that. 
apart  from  that  circumstance,  and  treating  the  land  as  being  the  ven- 
dor's, the  case  is  clear.  The  result  is,  that  the  plaintiff  fails  on  both 
points,  and  the  rule  must  be  discharged.  Rule  discharge  ;.: 

1  Bkett  ami  GeOVE,  JJ.,  delivered  concurring  opinions. 


748  MARSHALL  V.    GREEN.  [CHAP.  VI. 

Note.  —  In  Lavery  v.  Pursell,  39  Ch.  D.  508,  Chitty,  J.,  held  that  a  contract  to  sell 
building  materials  in  a  standing  building  to  be  removed,  by  the  purchaser  within  two 
months,  was  a  contract  for  the  sale  of  an  interest  in  or  concerning  land  within  sec- 
tion 4  of  the  Statute  of  Frauds.     In  the  course  of  his  opiuion,  he  said  :  — 

"  Now  the  authority  upon  which  the  plaintiff  relied  is  Marshall  v.  Green,  1  C.  P.  D. 
35.  In  that  case  the  subject-matter  of  the  contract  was  standing  trees,  tit  to  be  cut  as 
timber.  The  intention  of  the  parties  unquestionably  was  to  sell  and  buy  as  timber. 
There  was  do  stipulation  there  in  regard  to  possession,  but  it  was  a  part  of  the  terms 
of  the  contract  that  the  purchaser  should  cut,  and  of  course  part  of  the  terms  of  the 
contract  that  lie  should  enter  for  that  purpose.  On  the  facts  it  appeared  that  six  trees 
hail  been  cut  down  by  the  defendant,  who  was  sued  for  the  wrongful  acts  of  cutting 
down  the  trees.  The  substantial  question  was  whether  the  defendant  was  a  trespasser 
and  wrongdoer  in  cutting  the  trees,  and  that  depended  upon  whether  he  had  an  en- 
forceable  contract  to  cut  the  trees.  He  had  cut  six  trees,  and  then  a  notice  was  given 
to  him  by  the  owner  of  the  trees  to  cut  no  more.  After  that  he  entered  and  still  cut, 
and  the  question  was  as  to  his  liability  in  respect  of  those  trees.  Sir  Arthur  Watson, 
in  arguing  this  case,  spoke  of  a  revocable  license,  but  the  Common  Pleas  Divisiou 
appeared  to  consider  that  this  was  not  a  revocable  license,  because  they  held  that  he 
was  justified  in  cutting  the  trees,  notwithstanding  the  notice.  Then  the  trees  being 
standing  trees,  to  be  cut  by  the  purchaser,  the  court  held  that  it  was  not  within  the 
4th  section.  Of  course  I  am  bound  by  the  decision  itself,  and  I  am  bound  by  any 
principle  of  law  that  is  necessary  to  the  decision,  but  I  am  not  bound  by  the  decision 
beyond  that.  Now  the  court  appears  to  have  considered  that  there  was  no  interest  in 
the  land.  I  agree  that  it  was  a  point,  if  I  may  say  so  with  great  respect,  that  required  a 
good  deal  of  attention,  whether  a  standing  tree  is  a  chattel,  or  can  be  made,  by  any  acts 
of  the  parties,  a  chattel.  It  is  a  hereditament  at  the  time  when  the  contract  is  made. 
It  is  just  as  much  a  hereditament,  in  point  of  law,  as  a  house  which  is  standing  on  the 
land,  and  just  as  much  so  as  the  mines  which  are  underneath.  I  only  speak  now  as  a 
real  property  lawyer.  I  am  bound,  of  course,  by  the  English  law,  to  say  that  a  tree  is 
not  a  chattel.  Indeed,  if  a  man  were  indicted  for  larceny  of  a  tree,  the  indictment 
would  be  quashed.  I  feel  a  little  difficulty  in  following  that  reasoning,  winch,  for  the 
purposes  of  sect.  4,  through  the  intention  of  the  parties,  changes  the  nature  of  the 
propertv  from  realty  to  personalty,  but  I  make  these  observations  merely  for  the  pur- 
pose of  endeavoring  to  get  at  the  principle  on  which  the  decision  turns,  and  not  for 
the  purpose  of  making  any  unnecessary  comments  on  what  was  said.  The  Lord  Chief 
Justice  says,  and  I  thoroughly  agree  with  him,  that  it  is  difficult,  if  not  impossible,  to 
reconcile  all  the  authorities  in  these  matters.  lie  mentions  the  cases  which  referred 
to  the  fructus  natural es  and  the  fructus  industriales,  which  have  no  doubt  given  rise  to 
a  considerable  difference  of  opinion,  and  he  quotes  the  well-known  passage  in  Williams' 
Saunders,  Vol.  I.  p.  395  (Duppa  v.  Mayo),  where  it  was  said  that  where  the  parties 
a^ree  that  the  thing  sold  shall  be  immediately  withdrawn  from  the  land,  the  land  is 
to  be  considered  as  a  mere  warehouse  of  the  thing  sold,  the  contract  is  for  goods.  I 
pause  for  one  moment  to  say  that  I  am  always  myself  afraid,  in  dealing  with  proposi- 
tions of  law,  to  use  metaphors.  They  are  very  often  very  convenient,  hut  if  pressed 
too  far  they  often  lead  to  erroneous  conclusions.  Taking  this  statement,  could  the 
land  in  the  case  before  me  be  considered  as  the  warehouse  for  the  building?  Why, 
certainly  not.  Such  a  contention  as  that,  on  the  mere  statement  of  it.  would  lie  one 
which  could  not  be  permitted  in  a  court  of  justice.  I  say  that  merely  to  follow  the 
reasoning,  but  when  the  case  is  examined  as  a  whole,  it  will  be  seen  that  the  judgment 
turned  upon  this,  that  they  considered  that,  as  the  trees  were  to  be  cut  down  as  soon 
as  possible,  and  were  almost  immediately  cut  down,  the  thing  sold  was  a  chattel.  A 
point  was  taken  with  reference  to  the  statement  by  Lord  Justice  Brett,  1  C.  I'.  D. 
42  :  '  With  respect  to  the  first  point,  when  the  subject-matter  of  the  contract  is  some- 
thing affixed  to  land,  the  question  is  whether  the  contract  is  intended  to  lie  for  the 
purchase  of  the  thing  affixed  only,  or  of  an  interest  in  the  land  as  well  as  the  thing 
affixed.'  I  think  upon  that,  thai  the  Lord  Justice  did  not  intend  to  draw  any  such 
distinction  as  to  the  word  commented  on  —  that  the  tree  was  affixed,  or  was  a  fixture. 


SECT.  II.]  WHITMARSH   V.    WALKEE.  749 

I  cau  see  nothing  in  the  argument  founded  on  that  proposition.  The  true  basis  of  his 
judgment  is,  J  think,  to  be  found  in  the  Bame  page,  where  he  sayB,  'the  contract  is  not 
for  an  interest  in  the  land,  but  relates  solely  to  the  thing  sold  itself.' 

"  Though  that  case  may  be  open  hereafter  to  further  consideration,  of  course  I  can 
not  reconsider  it,  nor  can  I  differ  from  it,  It  is  evident  that  if  that  view  is  right, 
which  I  will  assume  it  to  he,  a  line  must  l.e  drawn  somewhere,  because,  if  this  prin- 
ciple were  carried  to  the  full  extent,  there  being  no  distinction  between  the  timber  "ii 
the  land,  iii  point  of  law,  and  the  mines,  then  it  would  have  to  be  said,  following  out 
what  the  plaintiff  says  was  the  principle  of  this  decision,  that  a  contract  for  all  the 
coal  or  minerals  under  a  man's  laud,  with  a  license  to  enter  and  get  it,  is  not  within 
sect.  4.  Some  ex phuiat ion  why  that  should  he  was  attempted  to  be  given  by  plain- 
tiff's counsel,  hut  without  success.  The  answer  perhaps  is,  that  courts  of  justice 
ought  not  to  he  puzzled  by  such  old  scholastic  questions  as  to  where  a  horse's  tail 
begins  and  where  it  ceases.  You  are  obliged  to  say,  'This  is  a  horse's  tail,'  at  s>  me 
time.  What  I  say  is,  that  I  must  draw  the  line  at  this  case,  because  "ii  the  fact-  it  is 
quite  different,  or  materially  different,  from  Marshall  v.  Green,  1  < '.  1'.  1).  .3."),  and  I 
leave  that  case  as  it  stands  on  its  own  footing,  anil  must  hold  that  this  case  comes 
within  the  4th  section." 

Compare  Hallen  v.  Runder,  1  C.  M.  &  11.  207,  and  Lee  v.  (iaskell,  1  Q.  B.  T>  700,  in 
which  it  was  held  that  a  sale  of  fixtures  by  the  tenant's  trustee  in  bankruptcy  to  the 
landlord  was  not  within  either  the  4th  or  the  17th  section  id'  the  statute. 


SAMUEL   WHITMARSH   v.    HEZEKIAH   WALKER,  Jr. 
Supreme  Judicial  Court  of  Massachusetts,  September  Term,  1840. 

[Reported  in  1  Metcalf,  313.] 

Wilde,  J.  This  action  is  founded  on  a  parol  agreement,  whereby 
the  defendant  agreed  to  sell  to  the  plaintiff  two  thousand  mulberry- 
trees  at  a  stipulated  price  ;  the  trees  at  the  time  of  the  agreement 
being  growing  in  the  close  of  the  defendant.  It  was  proved  at  the 
trial  that  the  plaintiff  paid  the  defendant  in  hand  the  sum  of  ten  dol- 
lars in  part  payment  of  the  price  thereof,  and  promised  to  pa}7  the 
residue  of  the  price  on  the  delivery  of  the  trees,  which  the  defendant 
promised  to  deliver  on  demand,  but  which  promise  on  his  part  he 
afterwards  refused  to  perform.  And  the  defence  is  that  the  contract 
was  for  the  sale  of  an  interest  in  land,  and  therefore  void  by  the  Rev. 
Sts.  c.  74,  §  1. 

In  support  of  the  defence  it  has  been  argued  that  trees  growing  and 
rooted  in  the  soil  appertain  to  the  realty,  and  that  the  contract  in 
question  was  for  the  sale  of  trees  rooted  and  growing  in  the  soil  of  the 
defendant  at  the  time  of  the  sale.  On  the  part  of  the  plaintiff  it  was 
contended  that  the  trees  contracted  for  were  raised  for  sale  and  trans- 
plantation ;  and  like  fruit-trees,  shrubs,  and  plants,  rooted  in  the  soil  of 
a  nursery  garden,  are  not  within  the  general  rule,  but  are  to  be  consid- 
ered as  personal  chattels.  This  question  was  discussed  and  considered 
in  Miller  r.  Baker,  1  Met.  27,  and  we  do  not  deem  it  necessary  to 
reconsider  it  in  reference  to  the  present  case.  We  do  not  consider  the 
agreement  set  forth  in  the  declaration  and  proved  at  the  trial  as  a 


750  WHITMAKSH   V.   WALKER.  [CHAP.  VI. 

contract  of  sale  consummated  at  the  time  of  the  agreement ;  for  the 
delivery  was  postponed  to  a  future  time,  and  the  defendant  was  not 
bound  to  complete  the  contract  on  his  part,  unless  the  plaintiff  should 
be  ready  and  willing  to  complete  the  payment  of  the  stipulated 
price.  Sainsburyv.  Matthews.  4  Mees.  &  Welsb.  347.  Independently 
of  the  Statute  of  Frauds,  and  considering  the  agreement  as  valid  and 
binding,  no  property  in  the  trees  vested  thereby  in  the  plaintiff.  The 
delivery  of  them  and  the  payment  of  the  price  were  to  be  simulta- 
neous acts.  The  plaintiff  cannot  maintain  an  action  for  the  non- 
delivery without  proving  that  he  offered  and  was  ready  to  complete 
the  payment  of  the  price  ;  nor  could  the  defendant  maintain  an  action 
for  the  price  without  proving  that  he  was  ready  and  offered  to  deliver 
tip'  trees.  According  to  the  true  construction  of  the  contract,  as  we 
understand  it,  the  defendant  undertook  to  sell  the  trees  at  a  stipulated 
price,  to  sever  them  from  the  soil,  or  to  permit  the  plaintiff  to  sever 
them,  and  to  deliver  them  to  him  on  demand  ;  he  at  the  same  time 
paying  the  defendant  the  residue  of  the  price.  And  it  is  immaterial 
whether  the  severance  was  to  be  made  by  the  plaintiff  or  the  defend- 
ant. For  a  license  for  the  plaintiff  to  enter  and  remove  the  trees 
would  pass  no  interest  in  the  land,  and  would,  without  writing,  be 
valid,  notwithstanding  the  Statute  of  Frauds. 

This  subject  was  fully  considered  in  the  case  of  Tayler  v.  Waters, 
7  Taunt.  374  ;  and  it  was  held  that  a  beneficial  license,  to  be  exercised 
upon  land,  may  be  granted  without  deed  and  without  writing  ;  and 
that  such  a  license,  granted  for  a  valuable  consideration  and  acted 
upon,  cannot  be  countermanded.  The  subject  has  also  been  ably  and 
elaborately  discussed  by  Chief  Justice  Savage  in  the  case  of  Mumford 
v.  Whitney,  15  Wend.  380,  in  which  all  the  authorities  are  reviewed  ; 
and  we  concur  in  the  doctrine  as  therein  laid  down,  namely,  that  a 
permanent  interest  in  land  can  be  transferred  only  by  writing,  but  that 
a  license  to  enter  upon  the  land  of  another  and  do  a  particular  act  or  a 
series  of  acts,  without  transferring  any  interest  in  the  land,  is  valid, 
though  not  in  writing.  And  such  is  the  license  on  which  the  plaintiff 
relies  in  the  present  case. 

Chancellor  Kent  in  his  Commentaries,  vol.  iii.  p.  452,  3d  ed.,  very 
justly  remarks  that  "the  distinction  between  a  privilege  or  easement 
carrying  an  interest  in  the  land,  and  requiring  a  writing  within  the 
Statute  of  Frauds  to  support  it,  and  a  license  which  may  be  by  parol, 
is  quite  subtile,  and  it  becomes  difficult  in  some  of  the  cases  to  discern 
a  substantial  difference  between  them."  But  no  such  difficulty  occurs 
in  the  present  case.  The  plaintiff  claims  no  right  to  enter  on  the 
defendant's  land  by  virtue  of  the  license.  It  is  admitted  that  he  had  a 
legal  right  to  revoke  his  license.  But  if  he  exercised  his  legal  right  in 
violation  of  his  agreement,  to  the  plaintiff's  prejudice,  he  is  responsible 
in  damages.  We  think  it  therefore  clear  that,  giving  to  the  contract 
the  construction  already  stated,  the  plaintiff  is  entitled  to  recover.  If 
for  a  valuable  consideration  the  defendant  contracted  to  sell  the  trees 


SECT.  II.]  GEEEN    V.   ARMSTRONG.  751 

and  to  deliver  them  at  a  future  time,  he  was  bound  to  sever  them  from 
the  soil  himself,  or  to  permit  the  plaintiff  to  do  it ;  and  if  he  refused  to 
comply  with  his  agreement,  he  is  responsible  in  damages. 

Judyment  on  Ike  verdict. 


GREEN  v.   ARMSTRONG. 

New  York  Supreme  Court,  October,  1845. 

[Reported  in  1  Denio,  r>.">2.] 

Beardsley,  J.  A  verbal  contract  was  made  between  these  parties, 
by  which  the  defendant  agreed  to  sell  certain  trees  then  standing  and 
growing  on  his  land,  to  the  plaintiff,  with  liberty  to  cut  and  remove  the 
same  at  any  time  within  twenty  years  from  the  making  of  the  contract. 
A  part  of  the  trees  were  cut  and  removed  under  this  agreement,  but  the 
defendant  then  refused  to  permit  any  more  to  be  taken,  and  for  this 
the  plaintiff  brought  his  action  in  the  justice's  court,  where  a  judgment 
was  rendered  in  his  favor.  On  the  trial  of  the  cause  the  defendant 
objected  to  proof  of  such  parol  contract,  but  the  objection  was  over- 
ruled. The  judgment  was  removed  by  certiorari  to  the  Court  of  Com- 
mon Pleas  of  Oneida  county,  and  was  reversed  by  that  court,  on  the 
ground,  as  the  record  states,  that  the  contract,  not  being  in  writing, 
was  void  b\-  the  Statute  of  Frauds. 

As  the  declaration  stated  that  the  contract  was  by  parol  and  not  in 
writing,  and  the  defendant  pleaded  instead  of  demurring,  it  is  now 
urged  on  behalf  of  the  plaintiff  in  error,  that  the  defendant  was  pre- 
cluded from  objecting,  on  the  trial  of  the  cause  before  the  justice,  or  in 
the  Court  of  Common  Pleas,  to  proof  of  a  parol  contract,  or  that  such 
contract  was  void.  It  is  insisted  the  defendant  should  have  demurred, 
if  a  verbal  contract  like  this  was  invalid,  and  that  by  pleading  to  the 
declaration,  its  sufficienc}',  and  consequently  the  validity  of  the  con- 
tract as  stated,  were  admitted  ;  and  if,  in  truth,  the  contract  was  for 
this  reason  void,  the  defendant,  having  failed  to  make  the  objection  at 
the  proper  time  and  in  an  appropriate  manner,  is  now  remediless. 

If  the  action  had  been  pending  in  this  court,  or  in  a  Court  of  Common 
Pleas,  the  principles  stated  would,  to  a  certain  extent,  have  been  ap- 
plicable ;  for  the  objection  that  the  contract  was  by  parol  and  not  in 
writing,  could  not  have  been  made  on  the  trial  of  the  issue  joined. 
But  a  verdict  on  the  issue  would  not  have  concluded  the  defendant, 
for  he  might  still  move  in  arrest  of  judgment,  and  thus  raise  the  ques- 
tion as  to  the  validity  of  the  contract  declared  on.  A  motion  in  arrest, 
however,  cannot  be  made  in  the  justice's  court,  and  where  issue  has 
been  joined,  as  in  this  case,  if  the  defendant  cannot,  on  the  trial  or  on 
certiorari,  object  that  the  contract  is  void,  he  is  without  any  redi 
whatever.  But  pleading  to  a  declaration,  when  the  party  might  have 
demurred,  cannot  be  allowed  to  have  any  such  conclusive  effect  upon 


752  GREEN  V.    ARMSTRONG.  [CHAP.  VI. 

the  rights  of  the  party  :  it  cannot  make  a  void  contract  valid,  or  at  all 
change  the  real  rights  of  the  litigant  parties.  The  orderly  and  formal 
mode  of  making  the  objection  would  be  bv  demurrer  or  motion  in 
arrest ;  but  this  is  only  a  matter  of  form.  And  as  it  was  too  late  to 
demur,  and  a  motion  in  arrest  could  not  be  made,  I  have  no  difficulty 
in  saying  the  objection  was  properly  made  on  the  trial,  and  in  the 
Common  Pleas,  ami  it  must  now  be  determined  by  this  court. 

The  Revised  Statutes  declare  that  no  "interest  in  lands  "  shall  be 
created,  unless  by  deed  or  conveyance  in  writing;  and  that  every  con- 
tract for  the  sale  of  "any  interest  in  lands"  shall  be  void  unless  in 
writing.  2  R.  S.  134,  §§  6,  8.  Certain  exceptions  and  qualiiications 
to  these  enactments  are  contained  in  the  sections  referred  to,  but  none 
which  touch  the  question  now  before  the  court :  ami  so  far  as  respects 
this  question  the  former  statute  of  New  York,  and  the  English  statute 
of  29  Charles  2,  eh.  3,  contain  similar  provisions.  1  R.  L.  of  1813, 
p.  78  ;  Chit,  on  Cont.  299. 

The  precise  question  in  this  case  is,  whether  an  agreement  for  the 
sale  of  growing  trees,  with  a  right  to  enter  on  the  land  at  a  future 
time  and  remove  them,  is  a  contract  for  the  sale  of  an  interest  in  land. 
If  it  is,  it  must  follow  that  the  one  declared  on  in  this  case,  not  being 
in  writing,  was  invalid,  and  the  judgment  of  the  Common  Pleas,  revers- 
ing that  of  the  justice,  was  correct  and  must  be  affirmed. 

And  in  the  outset  I  must  observe,  that  this  question  has  not,  to  my 
knowledge,  been  decided  in  this  State.  It  has,  however,  arisen  in  the 
English  courts,  and  in  some  of  those  of  our  sister  States  ;  but  their 
decisions  are  contradictory,  and  the  views  of  individual  judges  wholly 
irreconcilable  with  each  other.  Greenleaf's  Ev.  2d  ed.  §  271,  and 
notes;  Chit,  on  Cont.  299  to  302;  4  Kent's  Com.  5th  ed.  450,  1. 
We  are,  therefore,  as  it  seems  to  me,  at  full  liberty  to  adopt  a  broad 
principle,  if  one  can  be  found,  which  wrill  determine  this  precise  ques- 
tion in  a  manner  which  our  judgments  shall  approve,  and  especially  if 
it  be  equally  applicable  to  other  and  analogous  cases. 

I3y  the  statute,  a  contract  for  the  sale  of  "  any  interest  in  lands"  is 
void  unless  in  writing.  The  word  "  land  "  is  comprehensive  in  its  import, 
and  includes  many  things  besides  the  earth  we  tread  on,  as  waters, 
grass,  stones,  buildings,  fences,  trees,  and  the  like;  for  all  these  may 
be  conveyed  by  the  general  designation  of  land.  1  Shep.  Touch,  by 
Preston,  91  ;  1  Inst.  4;  1  Preston  on  Estates,  8;  2  Black.  Com.  17, 
18;  1  R.  S.  387,  §  2;  2  id.  137,  §  6.  Standing  trees  are  therefore 
part  and  parcel  of  the  land  in  which  they  are  rooted,  and  as  such  are 
real  property.  They  pass  to  the  heir  by  descent  as  part  of  the  inheri- 
tance, and  not,  as  personal  chattels  do,  to  the  executor  or  adminis- 
trator. Toller's  Law  of  Executors,  193,  4,  5 ;  2  Black.  Com.  by 
Chitty,  122  note;  Rob.  on  Frauds,  365,  6;  Richard  Liford's  case,  11 
Rep.  40;  Com.  Dig.  Biens,  (H).  And  being  strictly  real  property, 
they  cannot  be  sold  on  an  execution  against  chattels  only.  Scorell  v. 
Boxall,  1  Younge  &  Jer.  896  ,  Evans  r.  Roberts,  5  Barn.  &  Cress.  829. 


SECT.  II.]  GREEN    V.    ARMSTRONG.  753 

It  is  otherwise  with  growing  crops,  as  wheat  and  corn,  the  annual 
produce  of  labor  and  cultivation  of  the  earth;  for  these  are  personal 
chattels,  and  pass  to  those  entitled  to  the  personal  estate,  and  not  to 
the  heir.  Toller,  150,  194  ;  2  Black.  Com.  404.  They  may  also 
be  sold  on  execution  like  other  personal  chattels.  Whipple  v.  Foot, 
2  John.  418;  Jones  y.  Flint,  10  Adol.  &  Ellis,  753;  Peacock  v.  Pur- 
vis, 2  Prod.  &  Bing.  362;   Hartwell  v.  Bissell,  17  John.  128. 

These  principles  suggest  the  proper  distinction.  An  interest  in 
personal  chattels  may  be  created  without  a  deed  or  conveyance  in 
writing,  and  a  contract  for  their  sale  may  be  valid  although  by  parol. 
But  an  interest  in  that  which  is  land,  can  only  be  created  by  deed  or 
written  conveyance:  and  no  contract  for  the  sale  of  such  an  interest 
is  valid  unless  in  writing.  It  is  not  material  and  does  not  affect  the 
principle,  that  the  subject  of  the  sale  will  be  personal  property  when 
transferred  to  the  purchaser.  ll\  when  sold,  it  is,  in  the  hands  of  the 
seller,  a  part  of  the  land  itself,  the  contract  is  within  the  statute. 
These  trees  were  part  of  the  defendant's  land  and  not  his  personal 
chattels.  The  contract  for  their  sale  and  transfer,  being  by  parol,  was 
therefore  void. 

The  opinion  of  the  court  in  the  case  of  Dunne  v.  Ferguson,  1  Hayes 
(Irish)  R.  542,  contains  one  of  the  best  illustrations  of  this  question. 
That  case  is  thus  stated  in  Stephens'  N.  P.  (1971.)  "The  facts  of 
the  case  were,  that  in  October,  1830,  the  defendant  sold  to  the  plaintiff 
a  crop  of  turnips,  which  he  had  sown  a  short  time  previously,  for  a 
sum  less  than  ten  pounds.  In  February,  1831,  and  previously,  while 
the  turnips  were  still  in  the  ground,  the  defendant  severed  and  carried 
away  considerable  quantities  of  them,  which  he  converted  to  his  own 
use.  No  note  in  writing  was  made  of  the  bargain.  It  was  contended 
for  the  defendant,  that  the  action  of  trover  did  not  lie  for  things  an- 
nexed to  the  freehold,  and  that  the  contract  was  of  no  validity  for 
want  of  a  note  or  memorandum  in  writing  pursuant  to  the  Statute  of 
Frauds.  Upon  the  foregoing  facts  Chief  Baron  Joy  observed  (Barons 
Smith,  Pennefather  and  Foster,  concurring),  "The  general  question 
for  our  decision  is,  whether  there  has  been  a  contract  for  an  interest 
concerning  lands,  within  the  second  section  of  the  Statute  of  Frauds? 
or  whether  it  merely  concerned  goods  and  chattels?  And  that  ques- 
tion resolves  itself  into  another,  whether  or  not  a  growing  crop  is 
goods  and  chattels?  In  one  case  it  has  been  held,  that  a  contract  for 
potatoes  did  not  require  a  note  in  writing,  because  the  potatoes  were 
ripe  ;  and  in  another  case,  the  distinction  turned  upon  the  hand  that 
was  to  dig  them,  so  that  if  dug  by  A.  B.  they  were  potatoes,  and  if  by 
C.  I),  they  were  an  interest  in  lands.  Such  a  course  always  involves 
the  judge  in  perplexity,  and  the  case  in  obscurity.  Another  criterion 
must,  therefore,  be  had  recourse  to;  and,  fortunately,  the  later  cases 
have  rested  the  matter  on  a  more  rational  and  solid  foundation.  At 
common  law.  growing  crops  were  uniformly  held  to  be  goods  ;  and 
thev  were  subject  to  all  the  leading  consequences  of  being  goods,  as 

48 


754  HIRTH   V.    GRAHAM.  [CHAP.  VI. 

seizure  in  execution,  etc.  The  Statute  of  Frauds  takes  things  as  it 
finds  them,  and  provides  for  lands  and  goods  according  as  they  were 
so  esteemed  before  its  enactment.  In  this  way  the  question  may  be 
satisfactorily  decided.  If,  before  the  statute,  a  growing  crop  has  been 
held  to  be  an  interest  in  lands,  it  would  come  within  the  second  section 
of  the  act,  but  if  it  were  only  goods  and  chattels,  then  it  came  within 
the  thirteenth  section.  On  this,  the  only  rational  ground,  the  cases  of 
Evans  v.  Roberts,  5  Barn.  &  Cress.  829 ;  Smith  v.  Surman,  9  id. 
5G1  ;  and  Scorell  v.  Boxall,  1  Younge  &  Jer.  890,  have  been  de- 
cided. And  as  we  think  that  growing  crops  have  all  the  consequences 
of  chattels,  and  are  like  them  liable  to  be  taken  in  execution,  we  must 
rule  the  points  saved  for  the  plaintiff." 

Various  other  decisions  have  proceeded  on  the  same  principle, 
although  it  has  nowhere  been  stated  and  illustrated  with  the  same 
clearness  and  force  as  in  the  opinion  of  Chief  Baron  Joy. 

The  following  cases  may  be  cited  to  show  that  growing  crops  of 
grain  and  vegetables,  fructus  industrials,  being  goods  and  chattels, 
and  not  real  estate,  ma}'  be  conveyed  by  a  verbal  contract,  as  they 
may  also  be  sold  on  execution  as  personal  chattels.  Carrington  v. 
Roots,  2  Mees.  &  Wels.  248  ;  Sainsbury  v.  Matthews,  4  id.  343  ;  Ran- 
dall v.  Ramer,  2  John.  421,  note;  Mum  ford  v.  Whitney,  15  Wend. 
387;  Austin  v.  Sawyer,  9  Cowen,  39;  Jones  v.  Flint,  10  Adol.  & 
Ellis,  753  ;  Warwick  v.  Bruce,  2  Maule  &  Selvv.  205  ;  Graves  v.  Weld, 
5  Barn.  &  Adol.  105. 

But  where  the  subject-matter  of  a  contract  of  sale  is  growing  trees, 
fruit,  or  grass,  the  natural  produce  of  the  earth,  and  not  annual  produc- 
tions raised  by  manurance  and  the  industry  of  man,  as  they  are  parcel 
of  the  land  itself,  and  not  chattels,  the  contract,  in  order  to  be  valid, 
must  be  in  writing.  Teal  v.  Auty,  2  Brod.  &  Bing.  99  ;  Putney  v. 
Da}',  6  N.  Hamp.  R.  430 ;  Olmstead  v.  Niles,  7  id.  522  ;  Crosby  v. 
Wadsworth,  G  East,  602  ;  Rodwell  v.  Phillips,  9  Mees.  &  Wels.  501  ; 
Jones  v.  Flint,  10  Adol.  &  Ellis,  753. 

The  contract  in  this  case  was  within  the  statute,  and  being  by  parol 
was  void.     The  judgment  of  the  Common  Pleas  must  be  affirmed. 

Judgment  affirmed. 


IIIRTH   v.   GRAHAM. 
Onio  Supreme  Court,  January  24,  1893. 

[Repoi-ted  in  33  Northeastern  Reporter,  90.] 

Bradbury,  J.  The  plaintiff  in  error  brought  an  action  before  a 
justice  of  the  peace  to  recover  of  the  defendant  in  error  damages 
alleged  to  have  been  sustained  on  account  of  the  refusal  of  the  latter 
to  perform  a  contract  by  which  he  had  sold  to  the  plaintiff  in  error 


SECT.  II.]  HIRTH   V.   GRAHAM.  755 

certain  growing  timber.  The  defendant  attempted  to  secure  the  dis- 
missal of  the  action,  on  the  ground  that  the  justice  had  no  jurisdiction 
of  an  action  for  the  breach  of  such  a  contract.  Failing  in  this,  and 
the  action  being  tried  to  a  jury,  he  requested  the  justice  to  instruct 
the  jury  "  that  if  they  find  from  the  evidence  that  the  trees  about  which 
this  action  is  brought  were  at  the  time  of  said  alleged  contract  then 
growing  upon  the  land  of  defendant,  and  that  no  note  or  contract 
or  memorandum  of  the  contract  of  sale  was  at  the  time  made  in 
writing,  the  plaintiff  cannot  maintain  this  action,  and  your  verdict 
should  he  for  the  defendant;  "  which  instruction  the  justice  refused  to 
give,  but  on  the  contrary  gave  to  them  the  following  instructions  on 
the  subject:  "  This  is  an  action  for  damage,  not  on  the  contract,  nor 
to  enforce  the  same ;  and  if  you  find  that  a  contract  was  made,  verbal 
or  otherwise,  and  the  defendant  refused  or  failed  to  comply  with  its 
terms,  the  plaintiff  is  entitled  to  any  damage  you  may  find  him  to  have 
sustained  by  way  of  such  non-compliance."  The  defendant  in  error, 
who  was  also  the  defendant  in  the  justice's  court,  excepted,  both 
to  the  charge  as  given  and  to  the  refusal  to  charge  as  requested  ;  the 
verdict  and  judgment  being  against  him,  he  embodied  the  charge  as 
given,  as  well  as  that  refused,  in  separate  bills  of  exceptions,  and 
brought  the  cause  to  the  Court  of  Common  Fleas  on  error,  where  the 
judgment  of  the  justice  of  the  peace  was  affirmed.  He  thereupon 
brought  error  to  the  Circuit  Court,  where  the  judgments  of  the  Court 
of  Common  Fleas  and  that  of  the  justice  were  both  reversed  ;  and  it 
is  to  reverse  this  judgment  of  the  Circuit  Court,  and  reinstate  and 
affirm  those  of  the  Court  of  Common  Fleas  and  justice  of  the  peace, 
that  this  proceeding  is  pending. 

Counsel  for  plaintiff  in  error  contends  that  the  record  contains  noth- 
ing to  show  that  the  trees  which  were  the  subject  of  the  contract 
were  standing  or  growing,  and  that  therefore  it  does  not  appear  that 
the  defendant  was  injured  by  the  instructions  given  and  refused. 
The  record  does  not  support  this  contention.  During  the  trial  three 
separate  bills  of  exceptions  were  taken  ;  and,  when  all  of  them  are 
considered  together,  it  clearly  appears  that  evidence  was  given  tend- 
ing to  prove  that  the  trees,  the  subject  of  the  contract,  were  growing 
on  the  land  at  the  time  it  was  made,  and  that  the  contract  was  not 
evidenced  by  any  note  or  memorandum  in  writing.  The  instruction 
refused  was,  therefore,  pertinent;  and  if  it  contained  a  sound  legal 
proposition,  the  refusal  to  give  it  in  charge  to  the  jury  was  prejudicial 
to  the  defendant.  The  court,  however,  not  only  refused  to  give  the 
instructions  requested  by  the  defendant,  but  told  the  jury  in  substance 
that  no  written  memorandum  was  necessary 

Whether  a  sale  of  growing  trees  is  the  sale  of  an  interest  in  or  con- 
cerning land  has  long  been  a  much  controverted  subject  in  the  courts 
of  England,  as  well  as  in  the  courts  of  the  several  States  of  the 
Union.  The  question  has  been  differently  decided  in  different  juris- 
dictions, and  by  different  courts,   or  at  different   times  by  the  same 


756  HIRTH   V.    GRAHAM.  [CHAP.  VI. 

court  within  the  same  jurisdiction.     The  courts  of  England,  particu- 
larly,  have  varied   widely  in    their   holdings   on    the    subject.     Lord 
Mansfield  held  that  the  sale  of  a  crop  of  growing  turnips  was  within 
this  clause  of  the  statute.     Ennnerson  v.  Heelis,  2  Taunt.  38,  following 
the  case  of  Waddington  v.  Bristow,  2  Bos.  &  P.  452,  where  the  sale  of 
a  crop  of  growing  hops  was  adjudged  not  to  have  been  a  sale  of  goods 
and  chattels  merely.     And  in  Crosby  v.  Wadsworth,  6  East,  602,  the 
sale  of  growing  grass  was  held  to  be  a  contract  for  the  sale  of  an 
interest   in  or  concerning  laud,   Lord  Elleuborough  saying:    "Upon 
the  first  of  these  questions   [whether  this   purchase  of    the   growing 
crop  be  a  contract  or  sale  of  lands,  tenements,  or  hereditaments,  or 
any    interest    in   or   concerning    them],   I    think    that   the  agreement 
stated,  conferring,  as  it  professes  to  do,  an  exclusive  right  to  the  ves- 
ture of  the  land  during  a  limited  time  and  for  given  purposes,  is  a  con- 
tract or  sale  of  an  interest  in,  or  at  least  an  interest  concerning,  lands." 
Id.  610.     Afterwards,  in  Teal  v.  Auty,  2  Brod.  &  B.  99,  the  Court  of 
Common  Pleas  held  a  contract  for  the  sale  of  growing  poles  was  a  sale 
of  an  interest  in  or  concerning  lands.     Many  decisions  have   been  an- 
nounced by  the  English  courts  since  the  cases  above  noted  were  decided, 
the  tendency  of  which  have  been  to  greatly  narrow  the  application  of 
the  fourth  section  of  the  Statute  of  Frauds  to  crops,  or  timber,  grow- 
ing upon  land.     Crops  planted  and  raised  annually  by  the  hand  of 
man  are  practically  withdrawn  from  its  operation,  while  the  sale  of 
other  crops,  and  in  some  instances  growing  timber  also,  are  withdrawn 
from  the  statute,  where,  in  the  contemplation  of  the  contracting  par- 
ties, the  subject  of  the  contract  is  to  be  treated  as  a  chattel.     The 
latest  declaration  of  the  English  courts  upon  this  question  is  that  of 
the  Common  Pleas  Division  of  the  High  Court  of  Justice,  in  Marshall 
v.  Green,  1  C.  P.  Div.  35,  decided  in  1875.     The  syllabus  reads:  "A 
sale  of  growing  timber  to  be  taken  away  as  soon  as  possible   by  the 
purchaser  is  not  a  contract  or  sale  of  land,  or  any  interest  therein, 
within  the  fourth  section  of  the  Statute  of  Frauds."     This  decision 
was  rendered  by  the  three  justices  who  constituted  the  Common  Pleas 
Division  of  the  High  Court  of  Justice,  —  Coleridge,  C.  J.,  Brett  and 
Grove,  JJ.,  —  whose  characters  and   attainments  entitle  it  to    great 
weight ;   yet,  in  view  of  the  prior  long  period  of  unsettled  professional 
and  judicial  opinion  in  England  upon  the  question,  that  the  court  was 
not  one  of  final  resort,  and  that  the  decision  has  encountered  adverse 
criticism    from    high    authority    (Benj.    Sales    [ed.    1892],    §   126),    it 
cm! i not  be  considered  as  finally  settling  the  law  of  England  on  this 
subject.      The    conflict    among   the    American    cases   on    the    subject 
cannot  be  wholly  reconciled.     In   Massachusetts,  Maine,  Maryland, 
Kentucky,  and  Connecticut,  sales  of  growing  trees,  to  be  presently 
cut  and  removed  by  the  vendee,  are  held  not  to  be  within  the  opera- 
tion   of    the    fourth    section    of    the    Statute    of    Frauds.       Claflin    v. 
Carpenter,  4  Mete.  (Mass.)  580;  Nettleton  v.  Sikes,  8  Mete.  (Mass.) 
:;  I  ;    Bostwick  v.  Leach,  3  Day,  476  ;  Erskine  v.  Plummer,  7  Me.  117  ; 


SECT.  II.]  HIRTH   V.    GRAHAM.  757 

Cutler  v.  Pope,  13  Me.  377;  Cain  v.  McGuire,  13  B.  Mon.  310: 
Byassee  v.  Reese,  4  Mete.  (Ky.)  372  ;  Smith  v.  Bryan,  5  Md.  111.  la 
none  of  these  cases,  excepl  1  Mete.  (Ivy.)  373,  and  in  13  15.  Mon.  340, 
had  the  vendor  attempted  to  repudiate  the  contract  before  the  vendee 
had  entered  upon  its  execution  ;  and  the  statement  of  facts  in  those 
two  cases  do  not  speak  clearly  upon  this  point.  In  the  leading 
English  case  before  cited  (Marshall  v.  Green,  1  C.  P.  Div.  35),  the 
vendee  had  also  entered  upon  the  work  of  felling  the  trees,  and  had 
sold  some  of  their  tops  before  the  vendor  countermanded  the  sale. 
These  eases,  therefore,  cannot  be  regarded  as  directly  holding  that 
a  vendee,  by  parol,  of  growing  timber  to  be  presently  felled  and 
removed,  may  not  repudiate  the  contract  before  anything  is  done 
under  it;  and  this  was  the  situation  in  which  the  parties  to  the  case 
now  under  consideration  stood  when  the  contract  was  repudiated. 
Indeed,  a  late  case  in  Massachusetts  (Giles  v.  Simonds,  15  Gray,  141) 
holds  that  "  the  owner  of  land,  who  has  made  a  verbal  contract  for 
the  sale  of  standing  wood  to  be  cut  and  severed  from  the  freehold  by 
the  purchaser,  may  at  any  time  revoke  the  license  which  he  thereby 
gives  to  the  purchaser  to  enter  his  laud  to  cut  and  carry  away  the 
wood,  so  far  as  it  relates  to  any  wood  not  cut  at  the  time  of  the  revo- 
cation." The  courts  of  most  of  the  American  States,  however,  that 
have  considered  the  question,  hold  expressly  that  a  sale  of  growing  or 
standing  timber  is  a  contract  concerning  an  interest  in  lands,  and  within 
the  fourth  section  of  the  Statute  of  Frauds.  Green  v.  Armstrong,  1 
Denio,  550;  Bishop  v.  Bishop,  11  N.  Y.  123;  Westbrook  v.  Eager,  16 
N.  J.  Law,  81  ;  Buck  v.  Pickwell,  27  Vt.  157  ;  Cool  r.  Lumber  Co.,  87 
Ind.  531  ;  Terrell  v.  Frazier,  79  Ind.  473  ;  Owens  v.  Lewis,  46  Ind.  488  ; 
Armstrong  v.  Lawson,  73  Ind.  498;  Jackson  y.  Evans,  44  Mich.  510, 
7  N.  W.  Hep.  79;  Lyle  v.  Shinnebarger,  17  Mo.  App.  6G  ;  Howe  v. 
Batchelder,  49  N.  H.  204;  Putney  v.  Day,  6  N.  II.  430;  Bowers 
v.  Bowers,  95  Pa.  St.  177;  Daniels  v.  Bailey,  43  Wis.  500;  Lillie  v. 
Dunbar,  62  Wis.  198,  22  X.  W.  Rep.  467;  Knox  v.  Haralson,  2 
Tenn.  Ch.  232.  The  question  is  now,  for  the  first  time,  before  this 
court  for  determination  ;  and  we  are  at  liberty  to  adopt  that  rule  on 
the  subject  most  conformable  to  sound  reason.  In  all  its  other  rela- 
tions to  the  affairs  of  men,  growing  timber  is  regarded  as  an  integral 
part  of  the  land  upon  which  it  stands;  it  is  not  subject  to  levy  and 
sale  upon  execution  as  chattel  property;  it  descends  with  the  land  to 
the  heir,  and  passes  to  the  vendor  with  the  soil.  Jones  v.  Timmons, 
21  Ohio  St.  596.  Coal,  petroleum,  building  stone,  and  many  other 
substances  constituting  integral  parts  of  the  land,  have  become  arti- 
cles of  commerce,  and  easily  detached  and  removed,  and,  when 
detached  and  removed,  become  personal  property,  as  well  as  fallen 
timber ;  but  no  case  is  found  in  which  it  is  suggested  that  sales  of 
such  substances,  with  a  view  to  their  immediate  removal,  would  not  be 
within  the  statute.  Sales  of  growing  timber  are  as  likely  to  become 
the  subjects  of  fraud  and   perjury  as  are  the  other   integral   parts  of 


758  HUMBLE    V.    MITCHELL.  [  CHAP.  VI. 

the  land  ;  and  the  question  whether  such  sale  is  a  sale  of  an  interest 
in  or  concerning  lands  should  depend  uot  upon  the  intention  of  the 
parties,  but  upon  the  legal  character  of  the  subject  of  the  contract, 
which,  in  the  case  of  growing  timber,  is  that  of  realty.  This  rule  has 
the  additional  merit  of  being  clear,  simple,  and  of  easy  application,  — 
qualities  entitled  to  substantial  weight  in  choosing  between  conflict- 
ing principles.  Whether  circumstances  of  part  performance  might 
require  a  modification  of  this  rule  is  not  before  the  court,  and  has 
not  been  considered.  Judgment  affirmed.1 


HUMBLE  -v.    MITCHELL. 
In  the  Queen's  Bench,  November  27,  1839. 

[Reported  in  11  Adolphus  tj-  Ellis,  205.] 

Assumpsit  by  the  purchaser  of  shares  in  a  joint-stock  company, 
called  the  Northern  and  Central  Bank  of  England,  against  the  vendor 
for  refusing  to  sign  a  notice  of  transfer  tendered  to  him  for  signature, 
and  to  deliver  the  certificates  of  the  shares,  without  which  the  shares 
could  not  be  transferred. 

Pleas.  1.  That  the  contract  mentioned  in  the  declaration  was  an 
entire  contract  for  the  sale  of  goods,  wares,  and  merchandises,  for  a 
price  exceeding  £10,  and  that  plaintiff  had  not  accepted  or  received 
the  said  goods,  etc.,  or  an}*  part  thereof,  and  did  not  give  anything  in 
earnest  to  bind  the  bargain  or  in  part  payment,  and  that  no  note  or 
memorandum  in  writing  of  the  bargain  was  made  and  signed  by  de- 
fendant or  his  agent  thereunto  lawfully  authorized.     Verification.  .  .  . 

Replication,  to  the  first  plea,  denying  that  the  contract  was  for  the 
sale  of  goods,  wares,  etc.     Issue  thereon. 

At  the  trial  of  the  cause  before  Coleridge,  J.,  at  the  Liverpool  spring 
assizes,  1838,  the  jury  found  a  verdict  for  the  plaintiff,  subject  to  a 
motion  to  enter  a  verdict  for  the  defendant.  In  the  following  Easter 
term  Alexander  obtained  a  rule  nisi  according  to  the  leave  reserved, 
citing  Ex  parte  Vallance,  2  Deacon,  B.  C.  354. 

Cresswell  and  C  'rompton  now  showed  cause. 

Alexander,  contra. 

Loud  Denman,  C.  J.  .  .  .  The  point  is  whether  the  shares  in  this 
company  are  goods,  wares,  or  merchandises,  within  the  meaning  of 
§  17  of  the  Statute  of  Frauds.  It  appears  that  no  case  has  been  found 
directly  in  point ;  but  it  is  contended  that  the  decisions  upon  reputed 
ownership  are  applicable,  and  that  there  is  no  material  distinction  be- 
tween the  words  used  in  the  Statute  of  Frauds,  and  in  the  Bankrupt 
Act.  I  think  that  both  the  language  and  the  intention  of  the  two  acts 
are  distinguishable,  and  that  the  decisions  upon  the  latter  act  cannot 

1  A  portion  of  the  opinion  is  omitted,  in  which  the  court  held  that  whether  a 
justice  of  the  peace  is  bound  to  give  instructions  to  a  jury  or  not,  yet,  if  he  does  so,  he 
is  bound  to  lay  down  the  law  correctly. 


SECT.  III.]  BALDEY   V.   PARKER.  759 

be  reasonably  extended  to  the  Statute  of  Frauds.  Shares  in  a  joint- 
stock  company  like  this  arc  mere  chases  in  action  incapable  of  delivery, 
and  not  within  the  scope  of  the  17th  section.  A  contract  in  writing 
was  therefore  unnecessary. 

Patteson,  "Williams,  and  Coleridge,  J.J.,  concurred. 

Rule  di.scharf/ed.1 


SECTION   III. 

"  For  the  Price  of  Ten  Pounds  Sterling  or  Upwards." 

BALDEY    and   Another  v.    PARKER. 
In  the  King's  Bench,  June  5,  1823. 

[Reported  in  2  Bariieivall  $•  Cressweli,  37.] 

Assumpsit  for  goods  sold  and  delivered.  Plea,  general  issue.  At 
the  trial  before  Abbott,  C.  J.,  at  the  London  sittings  after  Trinity  term, 
1822,  the  following  appeared  to  be  the  facts  of  the  case  :  The  plaintiffs 
are  linen-drapers,  and  the  defendant  came  to  their  shop  and  bargained 
for  various  articles.  A  separate  price  was  agreed  upon  for  each,  and 
no  one  article  was  of  the  value  of  £10.  Some  were  measured  in  his 
presence  ;  some  he  marked  with  a  pencil ;  others  he  assisted  in  cutting 
from  a  larger  bulk.  He  then  desired  an  account  of  the  whole  to  be  sent 
to  his  house,  and  went  away.     A  bill  of  parcels  was  accordingly  made 

i  It  is  well  settled  in  England  that  shares  of  stock  are  not  within  the  statute. 
Bradley  v.  Holdsworth,  3  M.  &  W.  422;  Knight  v.  Barber,  16  M.  &  W.  66;  Heseltine 
v.  Singers,  1  Ex.  856;  Tempest  v.  Kihier,  3  C.  B.  '249;  Bowlby  v.  Hell,  3  C.  B.  284  5 
Duncuft  u.  Albrecht,  12  Sim.  189.  Nor  are  choses  in  action  generally.  Colonial  Bank 
v.  Whinuey,  30  Ch.  D.  261,  283,  Benjamin  on  Sales  (6th.  Am.  ed.),  110.  Compare 
Evans  r.  Davies,  (1893)  2  Ch.  216. 

In  the  United  States  a  wider  effect  is  given  to  statutes  of  frauds.  In  some  states, 
as  New  York  and  Wisconsin,  choses  in  action  are  expressly  included  in  the  statute. 
See  Artcher  v.  Zeh,  5  Hill,  200;  Peabody  v.  Speyers,  56  N.  Y.  200;  Spear  v.  Bach, 
82  Wis.  192.  But  even  under  statutes  similar  to  the  English  statute  shares  of  stock 
are  held  to  be  included.  North  v.  Forest.  15  Conn.  400  ;  Pray  v.  Mitchell.  60  Me.  430; 
Colvin  o.  Williams,  3  H.  &  J.  38 ;  Tisdale  v.  Harris,  20  Pick.  9  ;  Boardman  v.  Cutter, 
128  Mass.  3*8;  Fine  v.  Hornsbv,  2  Mo.  App.  61  ;  Bernhardt  c.  Walls,  29  Mo.  App.  206. 
Webb  v.  Baltimore,  &c.  Railroad,  26  Atlantic  Rep.  113  (Md.  L893),  follows  the  English 
decisions,  and  discredits  a  dictum  to  the  contrary  in  Colvin  v.  Williams,  supra.  Com- 
pare Meehan  v.  Sharp,  151  Mass.  564  ;  Green  v.  Brookins,  23  Mich.  4S.  Likewise  a  bond 
and  morl  gage  are  within  the  statute,  Greenwood  v.  Law.  26  Atlantic  Rep.  134  (  X.  J.  Law, 
1893) ;  and  bills  and  notes.  Hudson  v.  Weir,  29  Ala.  294  ;  Gooch  v.  Holmes,  41  Me.  523  ; 
Pray  v.  Mitchell,  60  Me.  430,  435;  Baldwin  v.  Williams,  3  Met.  365;  Somerby  v.  Bun- 
tin,  lis  Mass.  279.  In  thecase  last  cited  (as  also  in  Jones  v.  Reynolds,  120  X.  Y.  213) 
it  was  decided  that  an  oral  agreement  for  the  sale  of  an  interest  in  an  invention  before 
letters-patent  had  been  obtained  might  be  enforced,  and  the  court  said :  "The  words 
of  the  statute  have  never  vet  been  extended  by  any  court  beyond  securities  which  are 
subjects  of  common  sale*  and  barter,  and  which  have  a  visible  and  palpable  form." 
These  words  are  quoted  with  approval  in  Meehan  v.  Sharp,  151  Mass  564.  But  in 
Walker  v.  Supple,  54  Ga.  ITS,  a  sale  of  book  accounts  was  held  within  the  statute; 
and  in  Greenwood  c  Law,  supra,  the  court  said,  "  Goods,  wares,  and  merchandise  .  .  . 
are  equivalent  to  the  term  '  personal  property.'  " 


760  BALDEY   V.    PARKER.  [cHAP.  VI. 

out  and  sent  by  a  shopman.  The  amount  of  the  goods  was  £70.  The 
defendant  looked  at  the  account,  and  asked  what  discount  would  be 
allowed  for  ready  money,  and  was  told  £5  per  cent ;  he  replied  that  it 
was  too  little,  and  requested  to  see  the  person  of  whom  he  bought  the 
goods  (Baldey),  as  he  could  bargain  with  him  respecting  the  discount, 
and  said  that  he  ought  to  be  allowed  £20  per  cent.  The  goods  were 
afterwards  sent  to  the  defendant's  house,  and  he  refused  to  accept 
them.  The  Lord  Chief  Justice  thought  that  this  was  a  contract  for 
goods  of  more  than  the  value  of  £10  within  the  meaning  of  the  17th 
section  of  the  Statute  of  Frauds,  and  not  within  any  of  the  exceptions 
there  mentioned,  and  directed  a  nonsuit ;  but  gave  the  plaintiffs  leave 
to  move  to  enter  a  verdict  in  their  favor  for  £70.  A  rule  having 
accordingly  been  obtained  for  that  purpose, 

Scarlett  and  E.  Lawes  now  showed  cause. 

Denman  and  Piatt,  contra. 

Abbott,  C.  J.  We  have  given  our  opinion  upon  more  than  one 
occasion  that  the  29  Car.  2,  c.  3,  is  a  highly  beneficial  and  remedial 
statute.  We  are  therefore  bound  so  to  construe  it  as  to  further  the 
object  and  intention  of  the  Legislature,  which  was  the  prevention  of 
fraud.  It  appeared  from  the  facts  of  this  case  that  the  defendant  went 
into  the  plaintiff's  shop  and  bargained  for  various  articles.  Some  were 
severed  from  a  larger  bulk,  and  some  he  marked  in  order  to  satisfy 
himself  that  the  same  were  afterwards  sent  home  to  him.  The  first 
question  is,  whether  this  was  one  entire  contract  for  the  sale  of  all  the 
goods.  By  holding  that  it  was  not,  we  should  entirely  defeat  the  object 
of  the  statute.  For  then  persons  intending  to  buy  many  articles  at  one 
time,  amounting  in  the  whole  to  a  large  price,  might  withdraw  the  case 
from  the  operation  of  the  statute  by  making  a  separate  bargain  for  each 
article.  Looking  at  the  whole  transaction,  I  am  of  opinion  that  the 
parties  must  be  considered  to  have  made  one  entire  contract  for  the 
whole  of  the  articles.  The  plaintiffs  therefore  cannot  maintain  this 
action  unless  they  can  show  that  the  ease  is  within  the  exception  of  the 
29  Car.  2,  c.  3,  §  17.  Now,  the  words  of  that  exception  are  peculiar: 
"except  the  buyer  shall  accept  part  of  the  goods  so  sold,  and  actually 
receive  the  same."  It  would  lie  difficult  to  find  words  more  distinctly 
denoting  an  actual  transfer  of  the  article  from  the  seller,  and  an  actual 
taking  possession  of  it  by  the  buyer.  If  we  held  that  such  a  transfer 
and  acceptance  were  complete  in  this  case,  it  would  seem  to  follow  as  a 
necessary  consequence  that  the  vendee  might  maintain  trover  without 
paying  for  the  goods,  and  leave  (he  vendor  to  his  action  for  the  price. 
Such  a  doctrine  would  be  highly  injurious  to  trade,  and  it  is  satisfac- 
tory In  find  that  the  law  warrants  us  in  saying  that  this  transaction  had 
no  such  effect. 

Holroyd,  J.  I  am  of  the  same  opinion.  The  intention  of  the  stat- 
ute w:is  that  certain  requisites  should  be  observed  in  all  contracts  for 
tin-  s:dc  of  goods  for  the  price  of  I'll)  and  upwards.  This  was  all  one 
transaction,  though  composed  of  different  parts.     At  first  it  appears  to 


SECT.  III.]  HARMAN   V.    REEVE.  7G1 

have  been  a  contract  for  goods  of  less  value  than  £10,  but  in  the  course 
of  the  dealing  it'grew  to  a  contract  for  a  much  larger  amount.  At  "last, 
therefore,  it  was  one  entire  contract  within  the  meaning  and  mischief 
of  the  Statute  of  Frauds,  it  being  the  intention  of  that  statute  that 
where  the  contract,  either  at  the  commencement  or  at  the  conclusion, 
amounted  to  or  exceeded  the  value  of  £10,  it  should  not  bind  unless 
the  requisites  there  mentioned  were  complied  with.  The  danger  of 
false  testimony  is  quite  as  great  where  the  bargain  is  ultimately  of  the 
value  of  £10,  as  if  it  had  been  originally  of  that  amount.  It  must, 
therefore,  be  considered  as  one  contract  within  the  meaning  of  the  act. 
With  respect  to  the  exception  in  the  17th  section,  it  may  perhaps  have 
been  the  intention  of  the  Legislature  to  guard  against  mistake  where 
the  parties  mean  honestly  as  well  as  against  wilful  fraud  ;  and  the  things 
required  to  be  done  will  have  the  effect  of  answering  both  those  ends. 
The  words  are,  "except  the  buyer  shall  accept  part  of  the  goods  so 
sold  and  actually  receive  the  same,  or  give  something  in  earnest  to 
bind  the  bargain  or  in  part  of  payment,  or  that  some  note  or  memo- 
randum in  writing  of  the  said  bargain  be  made  and  signed  by  the  par- 
ties to  be  charged  by  such  contract,  or  their  agents  thereunto  lawfully 
authorized."  Each  of  those  particulars  either  shows  the  bargain  to  be 
complete,  or  still  further,  that  it  has  been  actually  in  part  performed. 
The  change  of  possession  does  not,  in  ordinary  cases,  take  place  until 
the  completion  of  the  bargain  ;  part  payment  also  shows  the  comple- 
tion of  it;  and  in  like  manner  a  note  or  memorandum  in  writing  signed 
by  the  parties  plainly  proves  that  they  understood  the  terms  upon  which 
they  were  dealing,  and  meant  finally  to  bind  themselves  by  the  con- 
tract therein  stated.  In  the  present  case  there  is  nothing  to  show  that 
some  further  arrangement  might  not  remain  unsettled  after  the  price 
for  each  article  had  been  agreed  upon.  There  was  neither  note  nor 
memorandum  in  writing;  no  part  of  the  price  was  paid,  nor  was  there 
any  such  change  of  possession  as  that  contemplated  by  the  statute. 
Upon  a  sale  of  specific  goods  for  a  specific  price,  by  parting  with  the 
possession  the  seller  parts  with  his  lien.  The  statute  contemplates 
such  a  parting  with  the  possession;  and  therefore  as  long  as  the  seller 
preserves  his  control  over  the  goods  so  as  to  retain  his  lien,  he  prevents 
the  vendee  from  accepting  and  receiving  them  as  his  own  within  the 
meaning  of  the  statute.  Hale  discharge  Lx 


HARMAN   v.   REEVE. 
In  the  Common  Pleas,  Mat  31,  1856. 

[Reported  in  25  Law  Journal  Reports,  Common  Pleas,  257.] 

The  declaration  stated   that  on  the  28th  of  June,  1855,  in  consider- 
ation that  the  plaintiff  bargained  with  the  defendant  to  sell,  and  then 
1  Batlet  and  Best,  J.T.,  delivered  brief  concurring  opinions. 


762  HAEMAN  V.    REEVE.  [CHAP.  VI. 

sold  to  him,  a  certain  mare  and  foal,  and  that  the  plaintiff  would  at  his 
own  expense  keep  and  feed  the  .said  mare  and  foal  fur  a  certain  time, 
to  wit,  until  Michaelmas  then  next  ensuing,  and  that  the  plaintiff  would 
at  his  own  expense  maintain,  feed,  and  keep  a  certain  other  mare  and 
foal  belonging  to  the  defendant  for  and  during  the  period  of  six  weeks; 
the  defendant  agreed  to  purchase  from  the  plaintiff  the  mare  and  foal 
first  mentioned,  and  to  fetch  the  same  away  from  the  plaintiff's  at 
Michaelmas  aforesaid,  and  pay  to  the  plaintiff  the  sum  of  £30.  Aver- 
ment of  performance  by  the  plaintiff  of  all  things  on  his  part  to  be 
performed  ;  and  that  all  things  had  happened  to  entitle  the  plaintiff  to 
have  the  contract  performed  on  the  defendant's  part.  Breach,  that  the 
defendant  did  not  nor  would  fetch  away  the  mare  and  foal  so  agreed  to 
be  purchased  and  fetched  away,  or  either  of  them,  or  pay  to  the  plaintiff 
the  said  sum  of  £30.     Special  damage. 

Plea  denying  the  contract. 

The  cause  was  tried  before  Jervis,  C.  J.,  at  the  last  spring  assizes  for 
Norfolk,  when,  the  plaintiff  having  proved  his  case  as  stated  in  the 
declaration,  it  was  objected  on  behalf  of  the  defendant  that  the  contract 
was  not  in  writing,  as  required  by  the  17th  section  of  the  Statute  of 
Frauds  ;  whereupon  his  lordship  nonsuited  the  plaintiff,  and  reserved 
leave  to  him  to  move  to  enter  a  verdict  for  £30. 

Hyles,  Serjt.,  now  showed  cause. 

O'Malley  and  Couch,  in  support  of  the  rule. 

Jervis,  C.  J.  I  am  of  opinion  that  this  rule  should  be  discharged. 
It  is  now  well  settled  that  the  7th  section  of  Lord  Tenterden's  Act,  9 
Geo.  4,  c.  14,  and  the  17th  section  of  the  Statute  of  Frauds  are  to  be 
read  together,  and  the  enactments  of  the  latter  statute  are  extended  to 
all  contracts  for  the  sale  of  goods  of  the  value  of  £10  and  upwards. 
The  effect  of  that  is  to  substitute  the  word  "  value  "  for  the  word  "  price '' 
in  the  17th  section  of  the  Statute  of  Frauds,  so  as  to  adopt  one  uniform 
rule  in  all  cases  ;  and  the  17th  section  must  now  be  read,  k"  no  contract 
for  the  sale  of  any  goods,  &c,  of  the  value  of  £10  or  upwards,  shall  be 
allowed  to  be  good,  except  the  buyer  shall  accept  part  of  the  goods 
so  sold,  and  actually  receive  the  same,  or  give  something  in  earnest  to 
bind  the  bargain  or  in  part  payment,  or  that  some  note  or  memorandum 
in  writing  of  the  said  bargain  be  made,"  &c.  Now,  the  present  is  the 
case  of  a  contract  for  the  sale  of  goods  above  the  value  of  £10,  for 
there  is  no  doubt  that  the  plaintiff's  mare  and  foal  were  worth  more 
than  I'll);  and  although  that  may  not  very  distinctly  appear  upon  the 
face  of  tne  contract,  still  it  might  and  would  have  been  shown  by  parol 
evidence.  Then  it  is  a  contract  for  the  sale  of  the  plaintiff's  mare  and 
foal  above  the  value  of  £10  ;  and  it  is  not  the  less  so  because  some- 
thing eUe  is  included  in  it;  and  there  is  no  note  or  memorandum  in 
writing.  Prima  facie,  therefore,  the  case  is  within  the  statute,  the 
principal  subject-matter  of  the  contract  being  the  sale  of  the  plaintiff's 
mare  and  foal  to  the  defendant,  the  rest  being  merely  ancillary  to  it; 
but  even  if  this  be  not  so,   it  is  still  a  contract  for  the  sale  of  goods 


SECT.  IV.]  AMSISCK   V.   AMEHICAN   INS.   CO.  763 

above  the  value  of  £10,  and  as  such  I  think  cannot  be  enforced.  But 
then  it  is  argued  that  there  has  been  an  acceptance,  which  takes  the 
case  out  of  the  statute.     I  think  not,  for  there  has  been  no  acceptance 

of  the  ''goods  so  sold,"  —  that  is.  of  the  plaintiff's  mare  and  foal, — 
but  the  defendant  lias  had  the  enjoyment  of  something  else  engrafted 
upon  the  contract,  and  that  does  not  satisfy  the  statute.  And  there  is 
no  hardship  in  our  so  deciding,  for  the  plaintiff  is  still  at  liberty  to  re- 
cover for  the  price  of  the  agistment  of  the  defendant's  mare  and  foal. 
The  answer  given  to  this  suggestion  by  Mr.  Couch  is,  that  the  plaintiff 
would  not  have  contracted  for  the  agistment  of  the  defendant's  mare 
and  foal  unless  the  whole  contract  had  been  entered  into,  and  that  it  is 
unfair  that  he  should  recover  for  part  only.  But  that  is  a  sort  of  thing 
that  occurs  daily.  I  agree  to  let  a  house  to  a  man  for  a  term  of  years, 
and  he  enters  under  a  promise  of  a  lease  and  occupies  for  a  year,  when 
I  sue  him  for  use  and  occupation.  It  would  be  no  answer  for  him  to 
say,  "  1  should  not  have  entered  at  all,  unless  you  had  agreed  to  grant 
me  a  lease."  If  entitled  to  a  lease,  it  is  his  own  fault  if  he  does  not 
get  it ;  and  it  is  no  reason  because  by  his  own  fault  he  has  failed  to  get 
all  he  was  entitled  to.  that  he  should  not  pay  for  what  he  has  had.  In 
this  ease  tiie  plaintiff  may  recover  for  the  agistment  of  the  defendant's 
mare  and  foal  when  he  properly  sues  for  it;  but  he  cannot  recover  the 
price  of  his  own  mare  and  foal.  k'  It  by  no  means  follows,"  as  said  by 
Bayley,  li.,  '•  because  you  cannot  sustain  a  contract  in  the  whole,  you 
cannot  sustain  it  in  part,  provided  your  declaration  lie  so  framed  as  to 
meet  the  proof  of  that  part  of  the  contract  which  is  good." 

Rule  dischargt  d} 


SECTION   IV. 
"Shall  be  Allowed  to  be  Good." 

GUSTAVE  AMSINCK  v.  AMERICAN  INSURANCE  COMPANY. 

Supreme  Judicial  Court  of  Massachusetts,  March  18,  1879  — 

July  10,  1SS0. 

[Reported  in  129  Massachusetts,  185] 

Endicott.  J.  Upon  the  facts  reported,  the  court  is  of  opinion  that 
Machado  had  an  insurable  interest  in  the  vessel  at  the  time  the  policies 
attached,  even  if  we  assume  that  they  took  effect  on  July  5.  1876,  the 
day  of  their  date.  On  that  day,  the  plaintiffs,  as  agents  for  Machado, 
made  an  oral  agreement  in  New  York  witli  the  owners  of  the  vessel  for 
her  purchase  for  the  sum  of  811,000,  payable  on  delivery  of  a  proper 
bill  of  sale;    and,  having  previously  ascertained  that  the  defendants 

i  Williams  ami  Chowder,  JJ.,  delivered  concurring  opinions.  Willes,  J ,  had 
gone  to  chambers. 


764  AMSINCK   V.    AMERICAN    INS.    CO.  [CHAP.  VI. 

would  insure  her,  the}-  gave  directions  to  have  the  insurance  closed. 
The  policies  were  written  on  that  day  ;  the  precise  time  of  their  delivery 
does  nut  appear.  The  oral  contract  to  purehase  was  reduced  to  writing 
and  signed  by  the  plaintiffs  and  the  owners  on  July  7  ;  and  a  portion 
of  the  purchase  money  was  paid  on  that  day.  Possession  was  taken 
by  Machado,  the  balance  due  was  paid,  and  a  bill  of  sale  was  duly  exe- 
cuted to  a  third  person  in  trust  for  Machado,  who  was  a  foreigner. 

It  is  conceded  by  the  defendants  that  Machado  was  the  only  person 
whose  interest  was  insured,  as  appears  by  the  declarations  and  the 
polieies.  But  they  contend  that  he  had  no  insurable  interest  on  July  5. 
for  at  that  time  he  had  only  an  oral  contract  for  the  purchase  of  the 
vessel ;  and  that  such  a  contract,  being  within  the  Statute  of  Frauds, 
and  incapable  of  being  enforced,  gives  no  insurable  interest. 

But  the  oral  contract  to  purchase  was  not  void  or  illegal  by  reason  of 
the  Statute  of  Frauds.  Indeed,  the  statute  presupposes  an  existing  law- 
ful contract ;  it  affects  the  remedy  only  as  between  the  parties,  and  not 
the  validity  of  the  contract  itself;  and  where  the  contract  has  actually 
been  performed,  even  as  between  the  parties  themselves,  it  stands 
unaffected  by  the  statute.  It  is  therefore  to  be  k"  treated  as  a  valid 
subsisting  contract  when  it  comes  in  question  between  other  parties  for 
purposes  other  than  a  recovery  upon  it."  Townsend  v.  Margraves,  118 
Mass.  325,  336;  Cahill  v.  Bigelow,  18  Pick.  309;  Beal  v.  Brown,  13 
Allen,  114;  Norton  v.  Simonds,  124  Mass.  19.  See  also  Stone  v. 
Dennison,  13  Pick.  1.  Machado  had  under  his  oral  agreement  an  inter- 
est in  the  vessel,  and  would  have  suffered  a  loss  by  her  injury  or  destruc- 
tion. Eastern  Railroad  v.  Relief  Ins.  Co.,  98  Mass.  420.  This  interest 
he  could  have  assigned  for  a  valuable  consideration,  and,  if  he  had 
assigned  it,  all  the  rights  afterwards  perfected  in  him  would  have  enured 
to  the  benefit  of  his  assignee.  Norton  v.  Simonds,  supra.  The  case 
of  Stockdale  v.  Dunlop,  6  M.  &  W.  224,  relied  upon  by  the  defendants, 
does  not  sustain  their  position,  for  reasons  which  are  stated  in  Town- 
send  v.  IJargraves,  supra.  Verdicts  set  aside.1 

Note.  —  The  decision  in  Amsinek  v.  American  Ins.  Co.,  was  followed  in  Waiver  v. 
Milli.nl  Mutual  F.  I.  Co.,  153  Mass.  335.  Compare  Stockdale  v.  Dunlop,  6  M.  &  W 
224,  per  Parke,  B. ;  Felthou.se  v.  Bindley,  11  C.  B.  n.  s.  869,  per  Willi:*,  ,1. ;  Pitney 
v.  Glen's  Kails  Ins.  Co.,  65  N.  Y.  6. 

In  MaddisoD  v.  Alderson,  8  App.  Cas.  467,  488,  Lord  Blackburn  said  :  "I  think  it 
is  now  finally  settled  that  the  true  construction  of  the  Statute  of  Frauds,  both  the  4th 
and  the  1 7th  sections,  is  not  to  render  the  contracts  within  them  void,  still  less  illegal, 
but  is  to  render  the  kind  of  evidence  required  indispensable  when  it  is  sought  to  enforce 
the  contract  " 

In  Townsend  v.  Ilargraves,  118  Mass.  325,  333,  Colt,  J.,  said  :  "In  carrying  out 
its  purpose,  the  statute  only  affects  the  modes  of  proof  as  to  all  contracts  within  it. 
If  a  memorandum  or  proof  of  any  of  the  alternative  requirements  peculiar  to  the 
seventeenth  section  be  furnished ;  if  acceptance  and  actual  receipt  of  pari  be  shown; 
then  the  oral  contract,  as  proved  by  the  other  evidence,  is  established  with  all  the 
consequences  which  the  common  law  attaches  to  it.  If  it  be  a.  completed  contract 
according  to  common  law  rules,  then,  as  hetween  the  parties  at  least,  the  property 

1  ( Inly  so  much  of  the  opinion  is  here  given  as  relates  to  the  Statute  of  Frauds. 


SECT.  IV.]  AMSINCK    V.    AMERICAN   INS.    CO.  765 

vests  in  the  purchaser,  and  a  right  to  the  price  in  the  seller,  as  soon  as  it  is  made, 
suhjecl  only  to  the  seller's  lien  and  right  of  Btoppage  in  transitu. 

".Manv  points  decided  in  the  modern  cases  support  by  the  strongest  implication  the 
construction  here  given.  Thus,  if  one  party  lias  signed  the  memorandum,  the  contract 
can  be  enforced  against  him,  though  not  against  the  other,  —  showing  that  the  proi 
of  the  other  is  not  wholly  void,  because  it  affords  a  good  and  valid  consideration  to 
Bupporl  the  promise  which  by  reason  of  the  memorandum  may  be  enforced.  Reuss  v. 
Picksley,  L.  R.  I  Ex.  342. 

"  The  memorandum  issufficient  if  it  be  only  a  letter  written  by  the  party  to  his  own 
agent;  or  an  entry  or  record  in  his  own  books;  or  even  if  it  contain  an  express  repudia- 
tion of  the  contract.  And  this  because  it  is  evidence  of,  but  does  QOl  go  to  make  the 
contract.  Gibson  <•.  Holland,  L.  R.  1  C.  P.  1;  Buxton  v.  Rust,  L.  I!.  7  Ex  1.279; 
Allen  v  Benuet,  3  Taunt.  169;  Tufts  v.  Plymouth  Gold  Mining  Co.,  14  Allen,  407; 
Argus  Co.  v.  Albany,  55  N.  V.  495. 

"  A  creditor,  reo  i\  ing  payment  from  his  debtor,  without  any  direction  as  to  it-  appli- 
cation, may  apply  it  to  a  debt  upon  which  no  action  can  he  maintained  under  the  stal 
Haynes  /-.Nice,  lOO  .Mass.  327. 

"Tin'  contract  is  treated  as  a  subsisting  valid  contract  when  it  comes  in  question 
between  other  parties  for  purposes  other  thau  a  recovery  upon  it.  Hence  the  statute 
cannot  he  used  to  charge  a  trustee,  who  may  set  up  against  hi-  debt  to  the  principal 
defendant  a  verbal  promise  within  the  statute  to  pay  the  defendant's  debt,  to  another 
for  a  greater  amount.  Cahill  v.  Bigelow,  18  Tick.  369.  Ami  a  guarantor  may  rec 
of  his  principal  a  debt  paid  upon  an  unwritten  guaranty.  Beal  v.  Brown,  13  Allen,  114 
"  On  the  ground  that  the  statute  affects  the  remedy  and  not  the  validity  of  the  con- 
tract, it  has  been  held  that  an  oral  contract,  good  by  the  law  of  the  place  where  made, 
will  not  be  enforced  iu  the  courts  of  a  couutry  where  the  statute  prevails.  Leroux  v. 
Brown,  12  C.  B.  801.  The  defendant  may  always  waive  its  protection,  and  the  court 
will  not  iuterpose  the  defence.  Middlesex  Co.  v.  Osgood,  4  Gray,  447.  And,  except 
that  the  statute  provides  that  no  action  shall  be  brought,  there  would  be  no  good  reason 
to  hold  that  a  memorandum  signed,  or  an  act  of  acceptance  proved,  at  any  time  before 
the  trial,  would  not  be  sufficient.  Bill  v.  Bament,  9  M.  &  W.  36 ;  Tisdale  v.  Harris, 
20  Pick.  9. 

"In  a  recent  case  in  the  Queen's  Bench,  a  memorandum  in  writing  made  by  the 
defendant,  after  the  goods  had  been  delivered  to  a  carrier  and  been  totally  lost  at  sea 
while  in  his  hands,  was  held  sufficient  to  take  the  case  out  of  the  statute,  and  no  notice 
is  taken  of  the  fact  that  the  goods  were  not  in  existence  when  the  memorandum  was 
furnished.      Leather  Cloth  Co.  v.  Hieronimus,  L.  R.  10  Q.  B.  140." 

In  Jackson  v.  Stanfield,  37  Northeastern  Rep.  14  (Indiana  vSupreme  Court,  April, 
1894),  which  was  an  action  for  preventing  performance  of  a  contract  with  a  third  per- 
son for  the  sale  of  a  large  quantity  of  lumber,  the  defendants,  the  appellees,  set  up 
the  defence  that  the  contract  was  oral  and  within  the  Statute  of  Frauds.  The  court 
said  :  "  If  this  be  true,  it  is  no  concern  of  the  appellees.  Parties  to  contracts  and  their 
privies  can  alone  take  advantage  of  the  fact  that  a  contract  is  invalid  under  the  Statute 
of  Frauds.  Many  forms  of  expression  by  this  and  other  courts  illustrate  the  doctrine 
that  a  third  person  cannot  make  the  Statute  of  Frauds  available  to  overthrow  a  transao 
tion  between  other  persons;  that  the  defence  of  this  statute  is  purely  a  personal  one, 
and  cannot  be  made  by  strangers.  Burrow  v.  Railroad  Co.,  107  Ind.  4a 2  ;  Bodkin  v. 
Merit,  102  Ind.  293;  Cool  r.  Peters  Box,  etc.,  Co.,  87  Ind.  5.'51  ;  Dixon  v.  Duke,  85 
Ind.  434  :  Wright  v.  Jones,  105  Ind.  17;  Savage  v.  Lee,  101  Ind.  515.  8  Am.  &  Eng 
Enc.  Law,  659,  and  cases  cited.  It  concerns  the  remedy  alone,  and  the  modern  law  is 
well  settled  that,  in  the  absence  of  a  statutory  provision  to  the  contrary,  the  effect  of 
the  statute  is  not  to  render  the  agreement  void,  but  simply  to  prevent  its  direct  enforce- 
ment by  the  parties,  and  to  refuse  damages  for  its  breach.  8  Am.  &  Fug.  Fnc.  Law, 
658,  659,  and  cases  ci^ed." 

See,  further,  For  i  liscussion  of  the  effect  of  an  oral  contract  within  the  Statute  of 
Frauds.  Browne  on  the  Statute  of  Frauds,  chapter  VIII. ;  9  American  Law  Review,  434- 
458;  Crane  v.  Powell,  139  X.  Y.  379. 


706  CHAPLIN   V.   ROGERS.  [CHAP.  VI. 


SECTION  V. 

"  Except  the  Buyer  shall   accept  Part  of  the  Goods   so  sold, 
and  actually  receive  the  same." 

CHAPLIN   v.   ROGERS. 

In  the  King's  Bench,  January  29,  1800. 

[Reported  in  1  East,  192.] 

In  an  action  for  goods  sold  and  delivered  the  case  proved  was  that, 
the  parties  being  together  in  the  plaintiff's  farm-yard,  the  defendant, 
after  some  objections  and  doubts  upon  the  quality  of  a  stack  of  hay 
(particularly  the  inside  part)  then  standing  in  the  yard,  agreed  to  take 
it  at  2s.  (W.  per  hundred  weight.  Soon  after  he  sent  a  farmer  to  look 
at  it,  whose  opinion  was  unfavorable.  But  about  two  months  after- 
wards another  farmer  of  the  name  of  Loft  agreed  with  the  defendant 
for  the  purchase  of  some  of  this  hay  still  standing  untouched  in  the 
plaintiff's  yard,  and  the  defendant  told  Loft  to  go  there  and  ask  what 
condition  it  was  in,  saying  he  had  only  agreed  for  it  if  it  were  good. 
The  plaintiff  having  informed  Loft  it  was  in  a  good  state,  he  agreed  to 
give  the  defendant  3.s\  9d.  per  hundred  weight  for  it,  the  defendant 
having  told  him  that  he  had  agreed  to  give  the  plaintiff  os.  Gd.  for  it. 
Loft  thereupon  brought  away  thirty-six  hundred  weight ;  but  this  latter 
fact  was  without  the  knowledge  and  against  the  direction  of  the 
defendant.  There  was  a  contrariety  of  evidence  as  to  the  quality  of 
the  hay  when  the  stack  was  afterwards  cut.  At  the  trial  before 
Hotham,  B.,  on  the  last  Norfolk  circuit,  Sellon,  Serjt.,  for  the  defend- 
ant, objected  that  the  contract  of  sale  was  fraudulent  and  void  by  the 
Statute  of  Frauds,  being  for  the  sale  of  a  commodity  no  part  of  which 
was  delivered,  and  of  which  there  was  no  acceptance  by  the  defendant. 
But  the  learned  judge  left  it  to  the  jury  to  decide  whether  the  sale 
had  been  fraudulent,  and  whether  under  the  circumstances  there  had 
been  an  acceptance  by  the  defendant ;  and  they  found  for  the  plaintiff 
on  both  points,  and  gave  him  £50  damages,  being  the  value  of  the  hay 
at  the  price  agreed  for.  In  the  last  term  a  rule  was  obtained  calling 
on  the  plaintiff  to  show  cause  why  the  verdict  should  not  be  set  aside 
and  a  new  trial  had,  on  the  grounds  that  the  learned  judge  had  left 
that  as  a  question  of  fact  to  the  jury  which  he  himself  ought  to  have 
decided  as  an  objection  in  point  of  law  arising  on  the  Statute  of 
Frauds  ;  and  because  the  evidence  did  not  warrant  the  verdict. 

Wilson  now  showed  cause. 

Garroiv,  contra. 

Lord  Kenton,  C.J.  It  is  of  great  consequence  to  preserve  unim- 
paired the  several  provisions  of  the  Statute  of  Frauds,  which  is  one 


SECT.  V.]  IIINDE   V.    WHITEHOUSE.  767 

of  the  wisest  laws  in  our  statute  book.  My  opinion  will  not  infringe 
upon  it ;  for  here  the  report  states  that  the  question  was  specifically 
left  to  the  jury  whether  or  not  there  were  an  acceptance  of  the  hay  by 
the  defendant,  and  they  have  found  that  there  was,  which  puts  an  end 
to  any  question  of  law.  I  do  not  mean  to  disturb  the  settled  construc- 
tion of  the  statute,  that  in  order  to  take  a  contract  for  the  sale  of  goods 
of  this  value  out  of  it  there  must  be  either  a  part  delivery  of  the  thing 
or  a  part  payment  of  the  consideration,  or  the  agreement  must  be 
reduced  to  writing  in  the  manner  therein  specified.  But  I  am  not  sat- 
isfied in  this  case  that  the  jury  have  not  done  rightly  in  finding  the 
fact  of  a  delivery.  Where  goods  are  ponderous,  and  incapable  as  here 
of  being  handed  from  one  to  another,  there  need  not  he  an  actual 
delivery  ;  but  it  may  be  done  by  that  which  is  tantamount,  such  as  the 
delivery  of  the  key  of  a  warehouse  in  which  the  goods  are  lodged,  or 
by  delivery  of  other  indicia  of  property.  Now  here  the  defendant 
dealt  with  this  commodity  afterwards  as  if  it  were  in  his  actual  possi  -- 
sion  ;  for  he  sold  part  of  it  to  another  person.  Therefore,  as  upon  the 
whole  justice  has  been  done,  the  verdict  ought  to  stand. 

The  other  judges  agreed   that   there  was  sufficient  evidence  of   a 
delivery  to  and  acceptance  by  the  defendant  to  leave  to  the  jury. 

Rale  discharged. 


HINDE   v.    WHITEHOUSE   and   GALAN. 
In  the  King's  Bench,  Jlne  20,  1806. 

[Reported  in  7  East,  558.] 

In  assumpsit  the  plaintiff  declared  that  on  the  20th  of  September, 
1805,  at  Liverpool,  he  was  lawfully  possessed  of  300  hhds.  of  - 
then  lying  in  a  certain  warehouse  there,  and  caused  them  to  be  put  up 
for  sale  by  public  auction  upon  the  following  conditions  :  "  The  highest 
bidder  to  be  the  purchaser,  and  in  case  of  dispute  the  lot  to  be  put  up 
again.  The  sugars  to  be  taken  with  all  faults  and  defects  as  they 
now  are,  at  the  king's  weights  and  tares,  with  the  allowance  of 
draft,  or  re-weighed  giving  up  the  draft.  To  be  at  the  purchaser's 
risk  from  the  time  of  sale  ;  and  to  be  positively  removed  within  two 
months,  or  rent  to  be  paid  for  any  longer  time  they  may  remain. 
Payment  to  be  made  on  delivery  of  invoices  by  approved  bills  on 
London  to  the  satisfaction  of  the  seller  not  exceeding  three  months' 
date.  Not  to  advance  less  than  od.  per  cwt.  at  each  bidding."  Of 
which  conditions  the  defendants  had  notice.  That  the  defendants 
were  the  highest  bidders  at  such  sale  for  two  lots  of  the  said  sugars. 
consisting  of  27  hhds.,  and  became  purchasers  of  the  same  at  the  price 
of  74s.  per  cwt.  at  the  king's  weights  and  tares,  with  the  allowance  of 
draft.  That  the  price  of  the  27  hhds.  amounted  to  £1265  li  3rf. 
That  the  plaintiff  on  the  23d  of  September  delivered  to  the  defend- 


70S  1IINDE    V.    WHITEHOUSE.  [CHAP.  VI. 

ants  an  invoice  of  the  27  hhds.,  whereupon  they  became  liable  to  pay 
him  the  £1265  lis.  3d.  But  that  the  defendants  did  not  make  pay- 
ment, &c.  There  were  other  counts  laying  the  contract  more  gener- 
ally. To  all  which  the  defendants  pleaded  the  general  issue.  The 
cause  was  tried  before  Rooke,  J.,  at  the  last  assizes  at  Lancaster  ;  and 
the  point  in  dispute  was,  whether  the  plaintiff  or  defendants  should 
bear  the  loss  of  the  sugars  in  question,  which  were  knocked  down  to 
the  defendants  by  the  auctioneer  on  the  20th  of  September,  and 
which  were  burned  on  the  22d  of  September  by  an  accidental  fire 
in  one  of  the  king's  warehouses  at  Liverpool,  where  they  were  de- 
posited. It  was  proved  that  the  sugars,  after  being  landed  at  Liver- 
pool on  the  plaintiff's  account,  were  deposited  in  one  of  the  king's 
warehouses  there,  under  the  locks  of  the  king  and  of  the  plaintiff, 
from  whence  they  could  not  be  removed  until  the  duties  were  paid. 
Previous  to  the  sale  samples  were  taken  of  the  sugars,  about  half  a 
pound  weight  out  of  each  hhd.,  according  to  custom.  The  printed 
catalogues  of  goods  for  sale  were  made  out  in  this  form  and 
distributed:  — 

To  be  sold  by  auction,  at  Waterhouse  and  Sill's  office  on  Friday,  the 
20th  of  September,  1805,  at  1  o'clock,  300  hhds.  Jamaica  sugar,  just 
landed.  For  particulars  apply  to  Thomas  Hinde,  merchant,  or  Water- 
house  and  Sill,  brokers. 

Lot.  Mark.  Hhds. 

1  I.  A.  10 

2  —  10 

&c. 
23  R.  H.  12 

&c. 
27  —  15  207      2    13 

&c. 

At  the  time  of  the  sale  the  auctioneer's  printed  catalogue  lay  on  the 
desk  before  him,  and  he  wrote  down  in  the  same  line  with  the  lot  pur- 
chased the  name  of  the  highest  bidder  or  purchaser,  and  the  price  bid 
percwt.,  thus :  — 


Gross 

;  Wt. 

119 

3 

9 

121 

0 

7 

169 

3 

13 

Lot. 

Mark. 

Hhds. 

Gross  Wt. 

23 

R.  H. 

12 

1G9  3  13  74«. 

(  Whitehouse 
(  and  Galan. 

27 

— 

15 

207  2  13  74.9. 

f  Whitehouse 
(  and  ( ialan. 

The  auction  was  holden  at  the  time  and  place  appointed,  and  was 
conducted  by  Mr.  Sill  as  auctioneer.  There  was  no  other  sale  on  the 
same  day.  The  samples  were  exhibited  in  the  sale  room,  and  the  lots 
in  question  were  knocked  down  to  the  defendants  as  the  highest  bid- 
ders At  the  commencement  of  the  sale,  the  auctioneer  having  the 
catalogue,  and  also  a  written  paper  containing  the  conditions  of  sale 


SECT.  V.]  IIIXDE   V.    WHITEHOUSE.  169 

in  his  left  hand  at  the  same  time,  read  the  latter  paper,  as  the  con- 
ditions on  which  the  sale  of  the  sugars  mentioned  in  the  catalogue 
was  to  proceed,  to  the  company  assembled  (including  one  of  the 
defendants),  which  paper  was  entitled,  "Conditions  of  sugar  sale. 
September  20th,  1805;"  and  which  paper  he  afterwards  deposited  on 
his  desk  under  the  catalogue,  on  which  catalogue  he  wrote  his  minutes 
Of  the  bidders'  names  and  prices  ;  hut  the  two  papers  were  not  fasten.  d 
together  in  any  manner.  He  also  made  the  following  declaration  by 
parol  to  the  bidders,  which  after  the  sale  his  clerk  wrote  down  upon 
the  paper  of  conditions  of  sale:  "  N.  B.  These  sugars,  gentlemen, 
have  been  drawn  in  the  warehouse  within  the  last  two  days;  as  such, 
no  allowance  whatever  will  be  made,  except  where  an  evident  error  is 
manifest.  The  duties  are  not  yet  paid,  but  we  intend  paying  them 
to-morrow  morning."  It  is  customary  at  such  sales  to  give  an  option 
to  the  purchaser  to  take  the  sugars  sold  according  to  the  weights 
taken  at  the  king's  beam,  which  were  marked  in  the  catalogue,  or  to 
have  them  re-weighed  ;  to  this  option  one  of  the  conditions  of  sale 
points.  But  it  is  the  constant  practice  for  the  purchaser  to  declare  his 
option  before  he  leaves  the  sale  room  if  he  wish  to  have  them  re- 
weighed,  in  order  that  the  seller  may  know  how  to  make  out  the 
invoices  ;  otherwise,  if  he  then  declare  no  option,  the  invoices  are 
made  out  according  to  the  weight  at  the  king's  beam.  In  the  present 
case  the  defendants  declared  no  option.  The  sugars  are  always 
weighed  on  landing  before  they  are  put  into  the  warehouse  ;  on  which 
weighing  the  duties  are  ascertained;  and  after  that  the  samples  are 
drawn.  The  samples  are  always  delivered  to  the  purchaser  as  a  part 
of  his  purchase  to  make  up  the  quantity,  and  were  accordingly  de- 
livered to  the  defendants  on  the  same  day  after  the  sale.  The  invoices 
were  made  out  on  Saturday  the  21st  of  September,  but  were  not 
delivered  to  the  defendants  till  Monday  the  23d,  after  the  fire 
happened.  The  duties  are  always  included  in  the  price  of  the  sugars, 
and  such  duties  are  always  paid  by  the  vendor,  and  are  so  required 
to  be  by  the  stat.  41  Geo.  3,  c.  44, '  and  till  paid  the  sugars  cannot  be 
removed  from  the  king's  warehouse.  The  sale  was  over  by  a  quarter 
past  4  o'clock  on  Friday  the  20th,  but  from  the  hours  of  office  and 
the  distance  there  was  not  time  after  the  sale  to  get  the  enti  - 
made  and  to  pay  the  duties.  Saturday  and  Sunday  were  holidays 
the  custom  house,  and  Monday  the  23d  was  kept  as  such.  Vicing  the 
king's  coronation  day.  The  circumstance  of  Saturday  being  a  holi- 
day was  not  recollected  at  the  time  of  the  sale,  when  the  auctioneer 
declared  that  the  duties  should  be  paid  on  the  morrow  ;  but  the  cir- 
cumstance was  mentioned  by  the  defendant  Whitehouse  to  a  clerk 
of  Waterhouse  and  Sill.  On  this  point  the  jury  found  that  there  was 
no  neglect  in  the  vendor  as  to  the  non-payment  of  the  duties  before 
the  fire  happened,  which  was  in  the  course  of  Sunday  the  22d.     The 

1   Ami  vidt  39  and  40  Geo  3,  c.  48. 

49 


770  IIINDE   V.    WHITEHOUSE.  [CHAP.  VI. 

auctioneer  said  that  it  often  happened  that  the  purchasers  sold  their 
sugars  again  before  the  duties  were  paid,  and  before  they  were  de- 
livered out  of  the  warehouse  ;  and  that  after  the  fire  the  defendants 
gave  him  instructions  to  take  care  of  the  goods  and  save  what  he 
could,  without  prejudice  to  the  rights  of  the  parties. 

Upon  this  proof  it  was  objected  that  there  was  no  legal  evidence 
sufficient  to  fix  the  defendants  with  the  purchase  of  these  goods 
within  the  Statute  of  Frauds  ;  there  being  no  memorandum  in  writ- 
ing of  the  contract  signed  by  the  parties  or  their  authorized  agent. 
That  the  auctioneer  was  no  authorized  agent  of  the  vendees  ;  but 
that,  supposing  he  was  so,  the  whole  contract  must  appear  upon  the 
paper  signed  by  him  with  the  names  of  the  defendants,  whereas  the 
conditions  of  sale,  which  formed  an  essential  part  of  the  contract, 
were  not  so  signed,  nor  in  any  way  connected,  except  by  parol  testi- 
mony which  was  inoperative  by  the  statute,  with  the  catalogues  signed. 
And  that  the  delivery  of  the  samples  was  diverso  intuitu,  and  not  as 
part  of  the  goods  contracted  for.  The  learned  judge  overruled  the 
objection,  but  reserved  the  point  ;  and  a  verdict  was  found  for  the 
plaintiff  for  £1110.  Whereupon  a  rule  nisi  was  obtained  in  Easter 
term  last  for  setting  aside  the  verdict  and  granting  a  uew  trial  upon 
the  same  grounds  of  objection;  which  rule  was  in  this  term  opposed 
by  Park,  Topping  and  Scarlett,  who  showed  cause,  and  supported  by 
Sir  V.  Gibbs,  Marshall,    Serjt.,  Hblroyd,  and  Littledale. 

Loro  Ellenborough,  C.  J.  This  was  the  case  of  a  sale  by  auction 
of  sugars  in  the  king's  warehouse,  and  which  were  afterwards  burnt 
whilst  they  remained  there  under  the  king's  lock  and  deposited  there 
for  the  receiving  of  the  king's  duties.  Aud  the  question  is,  Whether 
such  a  sale  of  those  goods  has  taken  place  as  is  sufficient  to  change  the 
property,  and  to  make  them  the  goods  of  the  purchasers?  The  goods 
were  put  up  to  sale  on  the  20th  of  September,  in  pursuance  of  a  cata- 
logue of  sale  which  had  been  previously  distributed  for  that  purpose, 
containing  the  lots,  marks,  number  of  hogsheads,  and  gross  weights  of 
the  sugars,  and  referring  for  further  particulars  to  the  brokers;  and 
they  were  sold  on  that  day  according  to  certain  conditions  of  sale, 
which  the  auctioneer  read  to  the  bidders  assembled  as  the  conditions 
on  which  the  sale  of  the  sugars  enumerated  in  the  catalogue  was  to  be 
made  (his  Lordship  here  described  the  catalogue,  and  read  the  condi- 
tions of  sale  as  before  stated)  ;  and  the  auctioneer  also  informed  them 
that  the  duties  were  not  then  paid,  but  would  be  paid  by  the  sellers  on 
the  morrow.  It  is  admitted,  however,  that  no  laches  is  imputable  to 
the  sellers  for  the  non-payment  of  the  duties  between  the  time  of  sale 
and  the  (ire,  which  happened  on  the  22d  of  September.  Two  ques- 
tions have  been  made  on  the  17th  section  of  the  Statute  of  Frauds, 
upon  which  questions  it  depends  whether  what  has  passed  between  the 
parties  as  to  those  goods  constituted  a  valid  contract  of  sale  in  respect 
to  them.  The  first  question  argued  upon  the  latter  words  of  that  sec- 
tion is  this  :      Is  the  writing  which  has  been  put  upon  the  catalogue  of 


SECT.  V.]  HIXDE   V.    WHITEHQUSB.  771 

sale  by  the  auctioneer  "  a  note  or  memorandum  in  writing  of  the  bar- 
gain made  and  signed  by  the  parties  to  be  charged  by  the  contract,  or 
their  agents  thereunto  lawfully  authorized,"  within  the  meaning  of  the 
statute?    The  second  question  is,  Whether  this  be  a  case  in  which  the 
buyer  can  be  said  to  have  "  accepted  part  of  the  goods  sold,  and  actu- 
ally received  the  same?"     But  independently  of  and  besides  thi 
questions,  it  lias  been  said  that  sales   by  auction   are  not  within  the 
statute:  and  the  case  of  Simon  v.  Motivos,  reported  in  '■'>  Burr.  1921 
and  1  Black.  Rep.  599, has  been  relied  on.     The  report  inBurrow  d» 
not  distinctly  mention  this  latter  point.      lint  in  the  report  of  Sir  W. 
Blackstone,  Lord  Mansfield  speaking  of  sales  by  auction  say-.  "The 
solemnity  of  that  kind  of  sale  precludes  all  perjury  as  to  the  fact  itself 
of  sale."      lie  then  mentions  the  case  of  a  sale  of  sugars  by  auction, 
which  were  afterwards  consumed  by  (ire  in  the  auction  warehouse,  and 
where  the  loss  fell  upon  the  buyer.      He  afterwards  adds.  ••  According 
to  the  inclination  of  my  present  opinion,  auctions  in  general  are  not 
within  the  statute."     And  Mr.  Justice  Wilmot  says  that  he  "  inclined 
to  think  that  sales  by  auction,  openly  transacted  before  500  people,  are 
not  within  the  statute."     With  all  deference  to  these  opinions,  I  do  not 
at  present  feel  any  sufficient  reason  for  dispensing  with  the  express 
requisition  of  a  memorandum  in  writing,  in  a  statute  applying  to  all 
sales   of   goods   above  the    value   of   £10    without   exception,  merely 
because  the  quantum  of  parol  evidence  in  the  case  of  an  auction   is 
likely  to  render  the  danger  of  perjury  less  considerable.     That  argu- 
ment in  a  degree  applies  to  all  sales  in  market  overt:  and  if  we  once 
get  loose  from  the  positive  words  of  the  statute,  it  will  become  a  ques- 
tion only  of  the  quantum   and   degree  of  perjury   in   each  particular 
instance:    which    opens    a   door   to  an    indefiniteness   of   construction 
founded  on  all  the  varying  circumstances  of  the  time  and  frequency 
of  persons  attending  the  place  of  sale,  and  the  like  ;   which  would   he 
destructive  of  all  certainty  of  practice,  and  render  the  rule  of  the  stat- 
ute perhaps  more  mischievous  than  beneficial  to  the  trading  world  who 
are  to  he  governed  by  it.     I  am  not  therefore  prepared  to  say  that  sales 
by  auction  are  not  meant  to  be  comprehended  within  the  statute.     Nor 
would  I  be  understood  as  giving  any  conclusive  opinion  to  the  contrary  : 
neither  is  it  necessary  that  1  should  upon  the  present  occasion.     The 
first  question  on  the  letter  of  the  statute  is,  Is  this  a  memorandum  of 
a  bargain  made  by  an  agent  of  both  parties?     In  respect  to  sales  of 
goods,  it  has  been  uniformly  so  holden  ever  since  the  case  of  Simon  v. 
Motivos;  and  it  would  be  dangerous  to  break  in  upon  a  rule  which 
affects  all  sales  made  by  brokers  acting  between  the  parties  buying  and 
sellinu,  and  where  the  memorandum  in  the   broker's   book,   and  the 
bought   and  sold   notes  transcribed   therefrom    and   delivered    to    the 
buyers  and  sellers  respectively,  have  been  holden  a  sufficient  compli- 
ance with  the  statute  to  render  the  contract  of  sale  binding  on   each. 
All  the  greal  transactions  of  sale  in  this  great  city  are  so  conducted, 
and  stand  on  this  foundation  of  legality  only  ;  and  it  is  too  late.  I  con- 


772  HINDE   V.    WHITEHOUSE.  [CHAP.  VI. 

ceive  to  draw  it  into  question.  Supposing  the  auctioneer  or  broker 
for  sale  to  be  the  agent  for  both  parties,  the  question  then  is.  Has  he 
made  a  memorandum  of  the  bargain  in  this  case?  and  it  appears  to 
me  that  he  has  not.  The  minute  made  on  the  catalogue  of  sale,  which 
is  not  annexed  to  the  conditions  of  sale,  nor  has  any  internal  reference 
thereto  bv  context  or  the  like,  is  a  mere  memorandum  of  the  name  of 
a  person  whom  perhaps  we  may  intend  to  be  the  purchaser,  and  of  the 
quantity  and  price  of  the  goods,  which  we  may  perhaps  on  the  foot  of 
such  memorandum  also  intend  to  have  been  sold  to  the  person  so 
named  in  the  catalogue.  But  in  treating  it  as  such  memorandum 
throughout,  we  must  intend  also  (contrary  to  the  fact)  that  the  goods 
were  sold  for  ready  money,  and  unattended  by  the  circumstances  spe- 
cified in  the  conditions  of  sale.  And  the  conditions  of  sale,  though  as 
unsigned  they  cannot  be  evidence  of  the  bargain  itself,  are  yet  capable 
of  being  given  in  evidence,  and  accordingly  have  been  so,  as  a  part  of 
the  transaction  between  the  parties,  and  in  order  to  show  that  it  was 
on  those  conditions  that  the  goods  were  sold.  1  am  of  opinion  there- 
fore that  the  mere  writing  on  the  catalogue,  not  being  by  any  reference 
incorporated  with  the  conditions  of  sale,  is  not  a  memorandum  of  a 
bargain  under  those  conditions  of  sale. 

As  to  the  next  question  on  the  statute,  inasmuch  as  the  half  pound 
sample  of  sugar  out  of  each  hogshead  in  this  case  is  by  the  terms 
and.  conditions  of  sale  so  far  treated  as  a  part  of  the  entire  bulk  to  be 
delivered,  that  it  is  considered  in  the  original  weighing  as  constituting 
a  part  of  the  bulk  actually  weighed  out  to  the  buyer,  and  to  be  allowed 
for  specifically  if  he  should  choose  to  have  the  commodity  re-weighed. 
1  cannot  but  consider  it  as  a  part  of  the  goods  sold  under  the  terms  of 
the  sale,  accepted  and  actually  received  as  such  by  the  buyer.  And 
although  it  be  delivered  partly  alio  intuitu,  namely,  as  a  sample  of 
quality,  it  does  not  therefore  prevent  its  operating  to  another  consistent 
intent  also  in  pursuance  of  the  purposes  of  the  parties  as  expressed  in 
the  conditions  of  sale,  namely,  as  a  part  delivery  of  the  thing  itself, 
as  soon  as  in  virtue  of  the  bargain  the  buyer  should  be  entitled  to  retain 
and  should  retain  it  accordingly. 

As  to  the  last  point  made  in  argument,  viz.,  that  there  has  been  no 
effectual  sale  in  this  case  made,  because  the  commodity  was  incapable 
of  delivery  till  the  king's  duties  were  paid,  and  which  were  to  be  paid 
by  the  seller,  I  think  that  the  sale  within  the  meaning  of  the  parlies 
1u  the  conditions  was  complete,  so  as  to  cast  the  subsequent  risk  of  loss 
upon  the  buyer.  The  words  "time  of  sale"  and  "  highest  bidder  to 
be  the  purchaser"  all  evidently  relate  to  the  transaction  of  selling  at 
the  time  and  place  of  auction  ;  which  was  considered  between  them  as 
Ctual  for  the  purpose  of  transferring  the  property,  and  the  conse- 
quent risk  of  loss  from  the  seller  to  the  buyer,  notwithstanding  the 
intermediate  right  of  custody  or  lien  upon  the  goods  in  the  crown 
until  the  duty  should  be  paid.  Besides,  after  earnest  given  the  vendor 
cannot  sell  the  goods  to  another  without  a  defau't  in  the  vendee  ;  and 


SECT.  V.]  ELMOEE   V.   STONE.  773 

therefore,  if  the  vendee  do  not  come  and  pay  for  and  take  away  the 
goods,  the  vendor  ought  to  go  and  request  him  ;  and  then,  if  he  do  not 
come  and  pay  for  and  take  away  the  goods  in  a  convenient  tunc,  the 
agreement  is  dissolved,  and  the  vendor  is  at  liberty  to  sell  them  to  any 
other  person.  Per  Holt,  C.  J.,  in  Langford  o.  Administratrix  of  Tiler, 
Salk.  1  !.">.  So  in  Noy's  Maxims,  88,  it  is  said  :  k'  If  I  sell  my  horse  for 
money,  I  may  keep  him  until  I  am  paid  ;  but  I  cannot  have  an  action 
of  debt  until  he  he  delivered;  yet  the  property  of  the  horse  is  by  the 
bargain  in  the  bargainor  or  buyer.  But  if  he  do  presently  tender  me 
my  money  and  I  do  refuse  it,  he  may  take  the  horse  or  have  an  action 
of  detainment.  And  if  the  horse  die  in  my  stable  between  the  barg 
and  the  delivery,  I  may  have  an  action  of  debt  for  my  money,  because 
by  the  bargain  the  property  was  in  the  buyer."  On  this  latter  ground 
therefore  I  do  not  think  that  the  sale  is  incomplete.  And  as  the  stat- 
ute has  been  satisfied  by  a  part  delivery  of  the  goods  sold,  accepted  by 
the  buyer,  I  think  the  contract  of  sale  valid  as  far  as  respects  the  stat- 
ute also,  and  that  the  rule  for  a  new  trial  should  be  discharged. 

Some  of  the  judges  on  the  bench,  conceiving  that  the  Lord  Chief 
Justice  had  questioned  generally  the  authority  of  the  case  of  Simon  <■. 
Metivier,  desired  to  have  it  understood  that  they  concurred  in  the 
judgment  delivered  in  this  case  on  the  ground  that  a  part  delivery  of 
the  thing  bought  (which  they  considered  the  delivery  to  and  acceptance 
of  the  samples  by  the  buyer  to  be  in  this  case)  took  the  case  out  of 
the  statute  ;  leaving  the  authority  of  that  case  to  stand  as  it  did  before 
on  its  own  ground,  untouched  and  unsanctioned  by  the  present  decision. 
But  the  Lord  Chief  Justice  declared  that  the  only  part  of  that  case 
which  he  meant  to  question,  though.it  was  unnecessary  at  present  to 
decide  upon  it,  was  the  opinion  thrown  out  that  auctions  were  not 
within  the  statute,  of  which  he  should  reserve  his  approbation  for  future 
consideration.  But  as  to  the  other  point  there  decided,  that  supposing 
sales  by  auctioneers  or  brokers  to  be  within  the  17th  section  of  the 
statute,  the  auctioneer  or  broker  must  betaken  to  be  the  agent  of  both 
parties,  the  practice  had  become  so  settled  since  the  decision  of  that 
case  that  it  would  be  dangerous  to  shake  it,  and  it  was  not  his  inten- 
tion to  question  it.  -B^k  discharged. 


ELMORE    v.    STONE. 
In  the  Common  Pleas,  February  9,  1809 

[Reported  in  1  Taunton,  457.] 

Trns  was  an  action  brought  to  recover  the  price  of  two  horses,  which 
it  was  contended  had  been  sold  to  the  defendant.  The  declaration 
contained  one  count  upon  a  bargain  and  sale,  and  another  upon  a  sale 
and  delivery.     Upon  the  trial  ot  this  cause  at  the  Middlesex  sittings  in 


i  74  ELMORE    V.    STONE.  [CHAP.  VI. 

Trinity  term  last,  before  Mansfield,  C.  J.,  it  appeared  that  the  plain- 
tiff, who  kept  a  livery-stable  and  dealt  in  horses,  having  demanded  180 
guineas  for  these,  the  defendant,  after  offering  a  less  price,  which  was 
rejected,  at  length  sent  word  that  k'  the  horses  were  his,  but  that,  as 
he  had  neither  servant  nor  stable,  the  plaintiff  must  keep  them  at  livery 
for  him."  The  plaintiff  upon  this  removed  them  out  of  his  sale  stable 
into  another  stable.  Lens,  Serjt.,  for  the  defendant,  contended  that, 
as  this  was  a  bargain  and  sale  of  goods  of  greater  value  than  £10,  a 
mite  in  writing  was  necessary  to  be  proved,  because  there  was  no  suffi- 
cient delivery.  Such  a  constructive  delivery  as  this  would  not  avail, 
he  said,  to  take  the  case  out  of  the  statute.  Mansfield,  C.  J.,  was  of 
opinion  that  there  was  a  sufficient  delivery,  but  reserved  the  point ;  and 
the  jury  found  a  verdict  for  the  plaintiff. 

Best,  Serjt.,  showed  cause. 

Lens,  contra.  Cur.  ado.  vult. 

Mansfield,  C.  J.,  now  delivered  judgment.  The  objection  made  to 
this  verdict  was  the  want  of  a  memorandum  in  writing  of  the  sale,  and 
of  a  delivery.  I  thought  at  the  trial  that  there  was  no  need  of  a  mem- 
orandum in  writing,  because  of  the  direction  given  that  the  horses 
should  stand  at  lively.  They 'were  in  fact  put  into  another  stable,  but 
thai  is  wholly  immaterial.  It  was  afterwards  argued  that  this  was  not 
a  sufficient  delivery  ;  but  upon  consideration  we  think  that  the  horses 
were  completely  the  horses  of  the  defendant,  and  that  when  the}'  stood 
at  the  plaintiff's  stables  they  were  in  effect  in  the  defendant's  posses- 
sion. There  are  many  cases  of  constructive  delivery  where  the  price 
of  goods  may  be  recovered  on  a  count  for  goods  sold  and  delivered, 
instead  of  a  count  for  goods  bargained  and  sold.  A  common  case  is 
that  of  goods  at  a  wharf,  or  in  a  warehouse,  where  the  usual  practice 
is  that  the  key  of  the  warehouse  is  delivered,  or  a  note  is  given  ad- 
dressed to  the  wharfinger,  who  in  consequence  makes  a  new  entry  of 
the  goods  in  the  name  of  the  vendee,  although  no  transfer  of  the  local 
situation  or  actual  possession  takes  place.  Thus  in  the  present  case, 
after  the  defendant  had  said  that  the  horses  must  stand  at  livery,  and 
the  plaintiff  had  accepted  the  order,  it  made  no  difference  whether  they 
stood  at  livery  at  the  vendor's  stable,  or  whether  the}-  had  been  taken 
away  and  put  in  some  other  stable.  The  plaintiff  possessed  them  from 
that  time,  not  as  the  owner  of  the  horses,  but  as  any  other  livery-stable 
keeper  might  have  them  to  keep,  ruder  many  events  it  might  appear 
hard  if  the  plaintiff  should  not  continue  to  have  a  lien  upon  the  horses 
which  were  in  his  own  possession,  so  long  as  the  price  remained  un- 
paid ;  but  it  was  for  him  to  consider  that  before  he  made  his  agreement. 
After  he  had  assented  to  keep  the  horses  at  livery,  they  would  on  the 
decease  of  the  defendant  have  become  general  assets;  and  so,  if  he  had 
become  bankrupt,  they  would  have  gone  to  his  assignees.  The  plaintiff 
could  not  have  retained  them,  although  he  had  not  received  the  price, 
(mi  leqnently  the  rule  must  be  Discharged. 


SECT.  V.J  LLENKINSOP    V.    CLAYTON.  775 


BLENKINSOP   v.   CLAYTON. 

In  the  Common  Pleas,  June  20,   1817. 

[Reported  in  7  Taunton,  597.] 

In  this  action  the  plaintiff  declared  for  horses  and  goods  sold  and 
delivered,  and  for  the  keep  of  a  horse  sold  to  the  defendant.  Upon  the 
trial  of  the  cause  at  the  York  spring  assizes,  1817,  before  Wood,  B., 
the  plaintiff  proved  that  he  had  sent  his  servant  with  a  horse  to  a  fail 
to  sell  it.  and  that  the  defendant,  seeing  the  horse,  followed  it  into  a 
stable,  offered  £45  for  it,  and  said  he  should  in  half  an  hour  have  a 
stall  in  his  stable  vacant  to  receive  it.  The  plaintiff's  servant  agreed 
to  accept  the  sura  named,  and  taking  a  shilling  in  his  hand,  drew  the 
edge  of  it  across  the  palm  of  the  defendant's  hand,  and  replaced  the 
shilling  in  his  own  pocket,  which  the  witnesses  called  striking  off 
the  bargain.  The  defendant  afterwards  brought  a  chapman  to  the 
stable,  and  stating  to  him  that  he  had  bought  the  horse,  offered  to  sell 
it  to  him  at  a  profit  of  £5,  which  the  other,  discovering  a  supposed 
unsoundness,  declined  ;  in  consequence  of  which  discovery  the  defend- 
ant returned  to  the  plaintiff's  stable,  and  declined  his  purchase.  The 
plaintiff  contended,  first,  that  the  act  of  striking  off  the  bargain  as 
above  described  bound  the  contract  so  as  to  satisfy  the  Statute  of 
Frauds;  secondly,  that  the  defendant's  declaration  that  he  had  bought 
the  horse,  and  his  attempt  to  resell  it,  was  evidence  that  the  sale  and 
delivery  were  complete,  and  entitled  the  plaintiff  to  recover.  Wood,  li., 
reserved  the  points,  subject  whereto  the  jury  found  a  verdict  for  the 
plaintiff. 

Hullock,  Serjt.,  in  Easter  term  had  obtained  a  rule  nisi  to  set  aside 
this  verdict  and  enter  a  nonsuit,  against  which 

Copley,  Serjt..  now  showed  cause.  He  contended,  first,  that  the  act 
called  the  striking  off  the  bargain,  which  was  a  term  well  understood 
in  the  north  of  England,  was  such  a  part  payment  as  complied  with  the 
Statute  of  Frauds.  It  was  not  invalidated  by  the  money  being  instantly 
returned  to  the  seller  with  the  consent  of  the  buyer.  [But  the  whole 
court  denied  that  there  was  ever  any  payment  or  transfer  of  the  shil- 
ling, even  for  a  moment.]  Next,  if  a  purchaser  treats  the  property  as 
his  own,  that  proves  a  sufficient  delivery,  as  was  held  by  Lord  Kenvou. 
C.  J.,  in  the  ease  of  the  sale  of  a  stack  of  hay  (Chaplin  r.  Rogers,  i 
Fast,  192),  wherein  the  defendant  had  resold  a  part  of  it,  though  he 
afterwards  refused  to  permit  the  second  purchaser  to  take  it.  In  Elmore 
v.  Stone,  1  Taunt.  458,  there  was  no  actual  delivery.  Tin-  defendant 
cannot  resort  to  the  Statute  of  Frauds,  after  he  has  by  his  own  act 
acknowledged  the  purchase.     Senile  v.  Keeves,  2  Fsp.  X.  P.  Cas.  598. 

Huttock,  in  support  of  his  rule,  denied  that  there  was  in  this  case  anv 
part  payment  or  any  constructive  delivery. 

Gibbs,  C.  J.,  interposing,  relieved  him.     The  court  do  not  ^o  all  the 


"76  TEMPEST   V.    FITZGEKALD.  [CHAP.  VI. 

way  with  tue  defendant  on  all  his  points  ;  but  the  court  is  embarrassed 
by  observing  that  it  was  not  left  to  the  jury  to  find  whether  there  was 
any  delivery  or  not  ;  and  on  the  first  trial  of  the  case  of  Chaplin  u. 
Rogers  the  jury  found  there  was  an  acceptance  of  the  hay,  and  on  the 
second  trial  they  found  that  it  had  been  delivered  ;  and  we  are  far  from 
saying  that  we  do  nut  coincide  with  the  learned  Baron  who  tried  the 
cause  in  his  direction,  but  we  think  it  ought  to  be  left  to  the  jury  to 
find  whether  this  was  or  was  not  a  delivery  ;  therefore  there  must  be  a 
new  trial.  This  is  very  different  from  the  case  of  the  haystack,  for 
there  nothing  more  could  be  done  to  confer  a  possession. 

Dallas.  J.  The  only  question  here  is,  whether  something  else  re- 
mained to  be  done ;  upon  that  point  I  have  an  opinion,  but  it  is 
unnecessary  here  to  disclose  it,  and  I  carefully  abstain  from  stating 
what  it  is. 

The  court,  altering  the  form  of  the  rule,  made  it  absolute  for  a  new 
trial.1 


TEMPEST  v.  FITZGERALD. 
In  the  King's  Bench,  June  12,   1820. 

[Reported  in  3   Barnewall  $■  Alderson,  680.] 

Assumpsit  for  the  price  of  a  horse.  Declaration  contained  counts 
for  horses  sold  and  delivered,  bargained  and  sold,  &c.  Plea,  general 
issue.  At  the  trial  before  Park,  J.,  at  the  last  assizes  for  the  county  of 
Lancaster,  the  following  facts  were  proved:  In  August,  1817,  the  de- 
fendant, then  on  a  visit  at  the  plaintiff's  house,  agreed  to  purchase  a 
horse  from  him  at  the  price  of  forty-five  guineas,  and  to  fetch  it  away 
about  the  22d  September  as  he  went  to  Doncaster  races.  The  parties 
understood  it  to  be  a  ready-money  bargain.  The  defendant  said  he 
wanted  it  for  hunting,  and  the  plaintiff  proposed  to  put  it  in  a  course  of 
physic  during  his  absence.  The  defendant  soon  after  quitted  the  plain- 
tiff's house,  and  returned  on  the  20th  September.  He  then  ordered  the 
horse  to  be  taken  out  of  the  stable;  he  and  his  servant  mounted,  gal- 
loped, and  leaped  the  horse,  and  after  they  had  done  so  his  servant 
cleaned  him,  and  the  defendant  himself  gave  directions  that  a  roller 
should  be  taken  off  and  a  fresh  one  put  on.  and  that  a  strap  should  be 
put  upon  his  neck,  which  was  consequently  done  ;  he  then  asked  the 
plaintiff's  son  if  he  would  keep  it  for  another  week;  he  said  that  he 
would  do  it  to  oblige  him.     The  defendant  then  said  that  he  would  call 

1  In  Blackburn  on  Sale,  (1st  oil.)  p.  33,  after  stating  Chaplin  v.  Rogers,  1  East, 
195,  a.;  Anderson  v  Sc  itt,  l  Camp.  235  n. ;  Hodgson  v.  LeBret,  l  Camp.  233;  Elmore 
v.  Stone,  I  Taunt.  458  ami  i  Lenkinsop  v.  Clayton,  7  Taunt.  :>'J7,  the  author  says:  "  la 
all  these  cases  i  here  seems  t"  have  been  ample  e\  idence  of  an  acceptance  "I'  the  goods 
hat  Bcantj  evidence  of  any  actual  receipt,  if  by  that  is  to  be  onderstood  a  takiug  of  pos- 
session ;  Indeed,  in  Blenkinsop  v.  <  llayt as  reported,  there  seems  to  have  been  none. 

Alter  the  decisiuu  of  that  last  case,  the  current  of  authority  set  the  other  way." 


SECIi  v.]  TEMPEST    V.    FITZGERALD.  7(7 

and  pay  for  the  horse  when  he  returned  from  the  Doncaster  races,  about 
the  26th  or  27th  September.     He  told  plaintiff's  groom  that  the  horse 

ought  to  be  galloped  more,  and  that  it  was  not  then  in  a  condition  for 
hunting.  The  defendant  returned  on  the  27th  with  the  intention  to 
take  it°away,  but  the  horse  having  died  on  the  26th  September  he  re- 
fused to  pay  the  price.  Upon  these  facts  it  was  contended  by  the  de- 
fendant's counsel  that  there  had  been  no  acceptance  of  the  horse  by  him, 
so  as  to  take  the  case  out  of  the  Statute  of  Frauds.  The  learned  judge 
was  of  opinion  that  if  the  acts  done  by  the  defendant  on  the  20th  Sep- 
tember were  to  be  considered  as  acts  of  ownership,  that  there  was  a 
sufficient  acceptance  ;  and  he  left  it  to  the  jury  to  say  whether  the  rid- 
ing of  the  horse  on  that  day  was  by  way  of  trial,  or  whether  the  defend- 
ant was  then  exercising  an  act  of  ownership  ;  and  whether  the  directions 
then  given  were  by  way  of  advice  or  as  owner.  If  they  thought  that  he 
was  then  exercising  acts  of  ownership,  then  they  were  to  find  for  the 
plaintiff;  if  otherwise,  for  the  defendant.  The  jury  found  a  verdict  for 
the  plaintiff.  A  rule  nisi  having  been  obtained  for  a  new  trial  in  last 
Easter  term, 

Scarlett  and  Holt  now  showed  cause. 
Cross,  Serjt.,  and  Milner,  contra. 

Abbott,  C.  J.  The  Statute  of  Frauds  was  made  for  wise  and  bene- 
ficial purposes,  and  ought  to  receive  such  a  construction  as  will  best 
accord  with  the  plain  and  obvious  meaning  of  the  Legislature.  By  the 
17th  section  it  is  enacted  [quoting  the  section].  Now  in  this  case  there 
was  not  any  earnest  given,  or  any  part  payment,  or  any  note  or  memo- 
randum in  writing.  The  question  therefore  is,  whether  the  buyer  had 
accepted  part  oAhe  goods  sold  and  actually  received  the  same.  Now 
the  word  •'  accepted"  imports  not  merely  that  there  should  be  a  deliv- 
ery by  the  seller,  but  that  each  party  should  do  something  by  which  the 
bargain  should  be  bound.  I  do  not  mean,  however,  to  say  that  if  the 
buyer  were  to  take  away  the  goods  without  the  assent  of  the  seller,  that 
would  not  be  sufficient  to  bind  him.1  In  this  case  payment  of  the  price 
was  to  be  an  act  concurrent  with  the  delivery  of  the  horse  ;  at  any  rate 
there  is  nothing  to  show  that  either  party  understood  that  the  one  was 
to  precede  the  other.  In  the  first  instance,  therefore,  this  was  a  mere 
contract  between  the  parties.  It  is  urged,  however,  that  there  was  evi- 
dence for  the  jury  to  find  that  the  defendant  had  exercised  acts  of  owner- 
ship as  to  the  horse  on  the  20th  September.  It  appears  from  the  learned 
judge's  report  that  on  that  day  he  came  to  the  plaintiff's  house,  that  he 
and"  his  servant  then  rode  the  horse,  and  that  he  gave  some  directions 
as  to  its  future  treatment,  and  it  is  urged  that  these  acts  might  be  con- 
sidered acts  of  ownership.  I  am  of  opinion,  however,  that  the  defend- 
ant Had  no  right  of  property  in  the  horse  until  the  price  was  paid  :  he 
could  not  then  exercise  any  right  of  ownership.  If  he  had  at  that  time 
rode  away  with  the  horse  the  plaintiff  might  have  maintained  trover. 
The  distinction  between  this  case  and  that  of  Blenkinsop  v.  Clayton  is, 
1  But  see  Baker  v.  Cuyler,  12  Barb.  667. 


77S  CARTER   V.    TOUSSAINT.  [CHAP.  VL 

that  there  the  contract  was  not  for  ready  mone}*,  but  the  horse  was  to 
be  delivered  within  an  hour,  and  the  defendant  treated  it  as  his  own  by 
offering  it  for  sale  ;  here  the  express  contract  is  for  ready  money,  and 
the  payment  of  the  price  is  an  act  concurrent  with  the  delivery  of  the 
horse.  I  think,  therefore,  that  the  rule  for  a  new  trial  must  be  made 
absolute.  Rule  absolute.1 


CARTER  and  Another  v.  TOUSSAINT. 
In  the  King's  Bench,  June  14,  1822. 

[Reported  in  5  Barneivall  $-  Alderson,  855.] 

Assumpsit  for  the  price  of  a  horse,  with  the  usual  money  counts. 
Plea,  general  issue.  At  the  trial  at  the  Middlesex  sittings  after  hist 
Hilary  term,  before  Abbott,  C.  J.,  it  appeared  that  the  plaintiffs,  who 
were  farriers,  sold  to  the  defendant  a  race-horse  by  a  verbal  contract  for 
£30.  The  horse  at  the  time  of  the  sale  required  to  be  tired,  which  was 
done  with  the  approbation  of  the  defendant  and  in  his  presence  ;  and  it 
was  agreed  that  the  horse  should  be  kept  by  the  plaintiffs  for  twenty 
days  without  any  charge  made  for  it.  At  the  expiration  of  the  twenty 
days  the  horse  was,  by  the  defendant's  directions,  taken  by  a  servant  of 
the  plaintiffs  to  Kimpton  Park,  for  the  purpose  of  being  turned  out  to 
grass  there.  It  was  there  entered  in  the  name  of  one  of  the  plaintiffs, 
which  was  also  done  by  the  direction  of  the  defendant,  who  was  anxious 
that  it  might  not  be  known  that  he  kept  a  race-horse.  No  time  was 
specified  in  the  bargain  for  the  payment  of  the  price.  The  defendant 
afterwards  refused  to  take  the  horse.  The  jury,  under  the  direction  of 
the  Lord  Chief  Justice,  found  a  verdict  for  the  plaintiffs.  Scarlett 
in  last  Easter  term  obtained  a  rule  nisi  for  entering  a  nonsuit  on  the 
ground  reserved  at  the  trial,  that  there  was  not  a  sufficient  acceptance 
by  the  defendant  to  take  the  case  out  of  the  17th  section  of  the  Statute 
of  Frauds. 

Marryat  and  Hawkins  showed  cause. 

Scarlett  and  Z,awes,  contra. 

Abbott,  C.  J.  In  this  case  it  appears  there  was  a  verbal  bargain  for 
the  horse  at  £30,  for  the  payment  of  which  no  time  was  fixed.  The 
seller  therefore  was  not  compellable  to  deliver  it  until  the  price  was  paid. 
In  Elmore  v.  Stone  there  was  a  contract  of  a  similar  description,  hut 
the  court  thought  that  the  circumstance  of  the  change  of  the  stable 
altered  the  character  in  which  the  plaintiff  there  held  possession  of  the 
horse.  For  the  plaintiff,  thereby  consenting  to  have  the  horse  placed  in 
the  lively  stable,  ceased  to  keep  possession  as  owner,  and  .held  it  only 
in  his  capacity  of  livery-stable  keeper.  There  is  no  circumstance  of 
thai  description  in  the  present  case.     It  is  quite  clear  that  the  present 

1  Bavi.iv,  IIoi.royd,  and  Best,  JJ.,  delivered  brief  concurring  opinions. 


SECT.  V.]  BENTALL   V.    BURN.  779 

plaintiffs  kept  possession  of  the  horse  as  owners  until  it  was  sent  to 
Kimpton  Park.  II  indeed  it  had  been  sent  there  and  entered  in  the 
defendant's  name  by  his  directions,  I  should  have  thought  it  would  have 
amounted  to  an  acceptance  by  him.  But  here  it  was  entered  in  the 
plaintiffs'  name,  and  the  plaintiffs'  character  of  owner  remained  un- 
changed from  first  to  last,  and  they  could  not  have  been  compelled  to 
deliver  it  without  the  payment  of  the  money.  There  was  then  no  suf- 
ficient acceptance  to  take  the  ease  out  of  the  Statute  of  Frauds  :  and 
consequently  the  action  is  not  maintainable. 

Uavi.kv,  J.  The  Statute  of  Frauds  is  a  remedial  law,  and  we  ought 
not  to  endeavor  to  strain  the  words  in  order  to  take  a  particular  case 
out  of  the  statute.  By  the  17th  section  it  is  provided  that,  in  the  i 
of  a  sale  of  goods  above  the  value  of  £10,  the  buyer  must  accept  and 
actually  receive  part  of  the  goods  so  sold.  There  can  lie  no  acceptance 
or  actual  receipt  by  the  buyer,  unless  there  be  a  change  of  possession, 
and  unless  the  seller  divests  himself  of  the  possession  of  the  go<  ds, 
though  but  for  a  moment,  the  property  remains  in  him.  Here  the  plain- 
tiffs had  a  lien  on  the  horse,  and  were  not  compellable  to  part  with  the 
possession  till  the  price  was  paid.  Then  the  question  is.  Was  there  any- 
thing to  deprive  them  of  that  right?  It  is  said  that  the  horse  was  fired, 
but  after  that  he  still  remained  in  their  possession.  Then  he  was  sent 
under  the  care  of  their  servant  to  Kimpton  Park,  but  that  was  no  act  of 
d  livery  to  dispossess  them  of  the  horse.  At  Kimpton  Park  he  was 
entered  in  the  name  of  one  of  the  plaintiffs,  and  they  still,  therefore,  re- 
tained a  control  over  him.  How  can  it  be  said  that  the  horse  was  in 
the  possession  of  the  defendant,  when  he  had  no  right  to  compel  a  de- 
livery to  him.  For  he  could  not,  on  tendering  the  keep,  maintain  trover 
against  the  park-keeper,  hecause  the  possession  had  not  passed  from  the 
vendors  to  him.  The  case  of  Elmore  v.  Stone  is  distinguishable.  There 
the  original  owner  of  the  horse  had  stables  in  which  he  kept  horses  as 
owner,  and  others  where  he  kept  them  as  livery-stable  keeper  ;  and  the 
court  considered  that,  by  changing  the  horse  from  the  one  to  the  other, 
he  had  divested  himself  of  the  possession  and  given  up  his  lien.  But 
there  is  no  circumstance  of  that  sort  here.  Mule  absolute.1 


BENTALL   and   Others,    Assignees   of   Baker  and   Farnley, 
Bankrupts,    and   DYER   v.  BURN. 

In  the  King's  Bench,  November  9,   1824. 

[Reported  in  3  Barnewall  $•  Cressu-ell,  42.3] 

Assumpsit    for   goods    bargained    and    sold    and    goods   sold    and 
delivered  by  Dyer  and  the  bankrupts  before  their  bankruptcy.     This 

1  IIoi.kovd,  J.,  delivered  a  brief  concurriug  opinion. 


730  ROHDE   V.    THWAITES.  [CHAP.  VI. 

was  an  action  brought  to  recover  £13  14s.,  the  price  of  a  hogshead  of 
Sicilian  wine  sold  to  the  defendant  by  the  bankrupts,  they  being 
copartners  with  the  other  plaintiff,  Dyer,  who  resided  in  Sicily.  At 
the  trial  before  Abbott,  C.  J.,  at  the  London  sittings  after  last  Trinity 
term,  it  appeared  that  the  bankrupts  had,  on  the  15th  of  February, 
1822,  sold,  in  the  name  of  and  on  account  ot  the  firm,  to  the  defend- 
ant a  hogshead  of  Sicilian  wine,  then  lying  in  the  London  docks,  at 
the  price  of  £13  14s.,  and  at  the  same  time  a  deliver}'  order  and 
invoice  were  made  out  and  sent  to  the  defendant,  signed  by  the  firm. 
But  there  was  no  contract  in  writing.  On  the  5th  of  June  the  defend- 
ant, on  being  applied  to  for  payment,  said  that  the  former  order  had 
been  lost,  and  that  the  wine  had  not  been  transferred  to  him  in  proper 
time,  and  he  had  consequently  lost  the  sale  of  it ;  that  he  had  not 
been  allowed  to  taste  it.  It  was  proved  that  a  delivery  order  is  given 
where  the  wine  is  intended  to  be  speedily  removed,  and  that  the  party 
receiving  it  may  get  the  goods  mentioned  in  the  order  upon  producing 
it  at  the  London  docks  and  paying  the  charges,  which  are  always 
deducted  from  the  price.  Upon  this  evidence  the  Lord  Chief  Justice 
was  of  opinion  that  the  acceptance  of  the  delivery  order  by  the  vendee 
was  not  equivalent  to  an  actual  acceptance  of  the  goods  within  the 
meaning  of  the  Statute  of  Frauds  ;  and  he  directed  a  nonsuit  to  be  en- 
tered, with  liberty  to  the  plaintiffs  to  move  to  enter  a  verdict  for  them 
for  the  price  of  the  wine. 

Per  Curiam.  There  could  not  have  been  any  actual  acceptance  of 
the  wine  by  the  vendee  until  the  dock  company  accepted  the  order  for 
the  delivery,  and  thereb}*  assented  to  hold  the  wine  as  the  agents  of  the 
vendee.  They  held  it  originally  as  the  agents  of  the  vendors,  and  as 
long  as  they  continued  so  to  hold  it  the  property  was  unchanged.  It 
has  been  said  that  the  London  Dock  Company  were  bound  by  law,  when 
required  to  hold  the  goods  on  account  of  the  vendee.  That  may  be 
true,  and  the}*  might  render  themselves  liable  to  an  action  for  refusing 
so  to  do  ;  but  if  they  did  wrongfully  refuse  to  transfer  the  goods  to  the 
vendee,  it  is  clear  that  there  could  not  then  be  any  actual  acceptance  of 
them  by  him  until  he  actually  took  possession  of  them. 

Hide  refused. 


ROHDE  and   Others   v.   THWAITES. 

In  the  King's  Bench,  Hilary  Term,  182? 

[Reported  in  G  Barnewall  §~  Cresswelt,  388.] 

Declaration  stated  that  on  the  3d  of  December,  1825,  the  defend- 
ant bargained  for  and  bought  of  the  plaintiffs,  and  the  plaintiffs  at 
the  request  of  the  defendant  sold  to  him  certain  goods,  to  wit,  twenty 
hogsheads  of  sugar,  at  56$.  Od.  per  cwt.  to  be  delivered  l>y  the  plain- 


SECT.  V.]  ROIIDE   V.   THWAITES.  781 

tiffs  to  the  defendant  upon  request,  and  to  be  paid  for  at  the  expira- 
tion of  two  months  then  following;  and  in  consideration   thereof,  and 
that  the  plaintiffs  at  the  like  request  of  the  defendant  had  undertaken 
and  faithfully  promised  the  defendant  to  deliver  the  goods  to  him,  he 
the  defendant  undertook  and  faithfully  promised  the  plaintiffs  to  accept 
the  goods  when  he  should  be  requested,  and  to  pay  them  the  plaint  ill's 
for  the  same  at  the  expiration  of  the  said  credit.     Averment,  that  the 
price  of  the  goods  amounted   to  a  certain  sum,  to  wit,  &c,  and  that 
although  the  plaintiffs  had  always  been  ready  and  willing  to  deliver 
the  goods  to  the  defendant,  and  requested  him  to  accept  the  same,  and 
although  the  credit  had  expired,  yet  the  defendant  did  not,  nor  would 
at  the  time  when   he  was  so  requested,  or  at  any  time  before  or  after- 
wards, accept  the  goods  or  pay  the  plaintiffs  or  either  of  them  for  the 
same,  but  refused  so  to  do.     There  was  then  an  indebitatus  count  for 
goods  bargained  and  sold.     The  defendant  suffered  judgment  to  go  by 
default.      l'pon  the  execution  of  the  writ  of  inquiry  the  plaintiffs  proved 
that  a  contract  for  the  sale  of  twenty  hogsheads  of  sugar  was  made  on 
the  3d  of  December,  1825,  at  56s.  Gc/.  per  cwt.,  but  there  was  no  suffi- 
cient note  in  writing  to  satisfy  the  Statute  of  Frauds.     On  that  day 
the  plaintiffs  had  in  their  warehouse  on  the  floor,  in  bulk,  a  much  larger 
quantity  of  sugar  than  would  be  required  to  fill  up  twenty  hogsheads, 
but  no  part  of  it  was  in  hogsheads.     The  defendant  saw  the  sugar  in 
this  state  in  the  plaintiffs'  warehouse,  and  then  made  the  contract  in 
question.     Four  hogsheads  were  filled  up  and  delivered  to  the  defend- 
ant on  the  10th  of  December,  and  a  few  days  afterwards  the  plaintiffs 
filled    up  the  remaining    sixteen  hogsheads,   and  gave    notice   to  the 
defendant  that  they  were  ready,  and  required  him  to  take  them  away  ; 
he  said  he  would  take  them  away  as  soon  as  he  could.     They  were  not 
weighed   till    February,  1826,   when    the    plaintiffs  delivered  a  bill  of 
parcels  to  the  defendant.     The  plaintiffs  added  to  the  bulk  from  time 
to  time    as  sales  were  made,  and    it  did   not  very  distinctly   appear 
whether  the  sixteen  hogsheads  were  filled  wholly  with  the  same  sugar 
which  was  in  the  warehouse  on  the  3d  of  December  when  the  contract 
was  made.     The  four  hogsheads  which  were  first  delivered  were  filled 
with  that  sugar.     It  was  admitted  that  there  was  sufficient  evidence  of 
a  sale  of  the  four  hogsheads,  inasmuch  as  there  was  an  acceptance  of 
them  by  the  defendant      No  contract  in  writing  sufficient  to  satisfy  the 
Statute  of  Frauds  having  been  proved,  it  was  insisted  that  there  was 
no  evidence  of  any  contract  of  sale  of  the  sixteen  hogsheads  of  sugar. 
and  that  the  plaintiffs  could  only  recover  for  the  four  hogsheads  which 
had  been  actually  delivered  ;  but  the  jury  under  the  direction  of  the 
under-sheriff  found  a  verdict  for  the  value  of  the  twenty  hogsheads.     A 
rule  nisi  for  setting  aside  the  writ  of  inquiry  having  been  obtained  by 
Hutchinson  in  Trinity  term. 

F.  Pollock  now  showed  cause. 

Hutchinson,  contra. 

Ratlet.  T.     Where  a  man  soils  part  of  a  large  parcel  of  goods,  and 


782  ROHDE   V.   THWAITES.  [CHAP.  VL 

it  is  at  his  option  to  select  part  for  the  vendee,  he  cannot  maintain  any 
action  for  goods  bargained  and  sold  until  he  Lias  made  that  selection  ; 
but  as  soon  as  he  appropriates  part  for  the  benefit  of  the  vendee,  the 
property  in  the  article  sold  passes  to  the  vendee,  although  the  vendor 
is  not  bound  to  part  with  the  possession  until  he  is  paid  the  price. 
Here  there  was  a  bargain  by  which  the  defendant  undertook  to  take 
twenty  hogsheads  of  sugar,  to  be  prepared  or  filled  up  by  the  plaintiffs. 
Four  were  delivered  ;  as  to  them  there  is  no  question,  but  as  to  the  six- 
teen it  is  said  that,  as  there  was  no  note  or  memorandum  of  a  contract 
in  writing  sufficient  to  satisfy  the  Statute  of  Frauds,  there  was  no  valid 
sale  of  them  ;  and  that  the  plaintiffs  in  their  declaration  having  stated 
their  claim  to  arise  by  virtue  of  a  bargain  and  sale,  cannot  recover  for 
more  than  the  four  hogsheads  which  were  actually  delivered  to  and 
accepted  by  the  defendant;  that  in  order  to  recover  for  the  others  they 
ought  to  have  declared  specially  that,  in  consideration  the  plaintiffs 
would  sell,  the  defendant  promised  to  accept  them.  In  answer  to  this 
it  is  said  that  there  was  an  entire  contract  for  twenty  hogsheads,  and 
that  the  defendant  by  receiving  four  had  accepted  part  of  the  goods 
sold  within  the  meaning  of  the  17th  section  of  the  Statute  of  Frauds. 
In  fact  the  plaintiffs  did  appropriate  for  the  benefit  of  the  defendant 
sixteen  hogsheads  of  sugar,  and  they  communicated  to  the  defendant 
that  they  had  so  appropriated  them,  and  desired  him  to  take  them 
away  ;  and  the  latter  adopted  that  act  of  the  plaintiffs,  and  said  he 
would  send  for  them  as  soon  as  he  could.  I  am  of  opinion  that  fry 
reason  of  that  appropriation  made  by  the  plaintiffs,  and  assented  to  by 
the  defendant,  the  property  in  the  sixteen  hogsheads  of  sugar  passed 
to  the  vendee.  That  being  so,  the  plaintiffs  are  entitled  to  recover  the 
full  value  of  the  twenty  hogsheads  of  sugar  under  the  count  for  goods 
bargained  and  sold.  The  rule  for  setting  aside  this  writ  of  inquiry 
must  therefore  be  discharged. 

Holrotd,  J.  The  sugars  agreed  to  be  sold  being  part  of  a  larger 
parcel,  the  vendors  were  to  select  twenty  hogsheads  for  the  vendee. 
That  selection  was  made  by  the  plaintiffs,  and  they  notified  it  to  the 
defendant,  and  the  latter  then  promised  to  take  them  away.  That 
is  equivalent  to  an  actual  acceptance  of  the  sixteen  hogsheads  by 
the  defendant.  That  acceptance  made?  the  goods  his  own,  subject  to 
the  vendors'  lien  as  to  the  price.  If  the  sugars  had  afterwards  been 
destroyed  by  fire,  the  loss  must  have  fallen  on  the  defendant.  I  am  of 
opinion  that  the  selection  of  the  sixteen  hogsheads  by  the  plaintiffs,  and 
the  adoption  of  that  act  b}-  the  defendant,  converted  that  which  was 
before  a  mere  agreement  to  sell  into  an  actual  sale,  and  that  the  prop- 
city  in  the  sugars  thereby  passed  to  the  defendant;  and  consequently 
that  they  were  entitled  to  recover  to  the  value  of  the  whole  under  the 
(•'Hint  [or  goods  bargained  and  sold. 

Littledale,  J.,  concurred.  Hide  discharged. 


SECT.  V.]  DODSLEY  V.    VAKLEY.  783 


DODSLEY   v.    VARLEY. 

In  the  Queen's  Bench,  November  5  &  24,  1840. 

[Reported  in  I -J  Adolphus  fr  Elks,  632  ] 

Assumpsit  for  goods  bargained  and  sold.  Plea,  non  assumpsit. 
On  the  trial  before  Littledale,  J.,  at  the  last  Nottingham  assizes,  it 
appeared  that  the  action  was  brought  for  the  price  of  wool  bought 
of  plaintiff  by  defendant  through  his  agent.  After  the  purchase  the 
wool  was  deposited  on  the  premises  of  a  person  named  Townrow, 
under  circumstances  which  will  appear  by  the  judgment  of  the  court; 
and  it  had  not  been  removed  thence  or  paid  for  when  the  action  was 
brought.  The  defendant's  counsel  urged,  among  other  objections, 
that  the  evidence  did  not  show  a  delivery  and  acceptance  within  stat. 
2'J  Car.  2,  c.  3,  §  17.     Verdict  for  the  plaintiff. 

Cur.  <t<L\  vult. 

Lord  Denman,  C.  J.,  in  the  same  term  (November  24)  delivered 
judgment. 

In  this  case,  which  was  moved  on  three  grounds  for  a  nonsuit,  we 
have  examined  our  brother  Littledale's  notes,  and  are  of  opinion  there 
should  be  no  rule.  The  first  and  second  grounds  were  that  there  was 
no  proof  of  agency  in  Bamford,  by  whom  the  wools,  the  subject-matter 
of  the  action,  were  bought;  or,  if  there  were,  that  such  agency  had 
been  countermanded  before  the  contract  was  completed  so  as  to  satisfy 
the  Statute  of  Frauds.  (It  is  unnecessary  to  report  the  judgment  on 
these  points,  which  turned  merely  on  the  facts,  and  was  in  favor  of  the 
plaintiff.)  It  wras  contended,  thirdly,  that  there  was  no  contract  com- 
pleted by  delivery  and  acceptance  so  as  to  satisfy  the  Statute  of  Frauds. 
The  facts  were,  that  the  wool  was  bought  while  at  the  plaintiff's;  the 
price  was  agreed  on,  but  it  would  have  to  be  weighed:  it  was  then 
removed  to  the  warehouse  of  a  third  person,  where  Bamford  collected 
the  wools  which  he  purchased  for  defendant  from  various  persons,  and 
to  which  place  the  defendant  sent  sheeting  for  the  packing  up  of  such 
wools.  There  it  was  weighed  together  with  the  other  wools,  and 
packed,  but  it  was  not  paid  for.  It  was  the  usual  course  for  the  wool 
to  remain  at  this  place  till  paid  for.  No  wish  was  expressed  to  take 
the  opinion  of  the  jury  on  the  fact  of  agency,  the  defendant's  counsel 
acquiescing  in  that  of  the  judge,  provided  the  circumstances  would 
amount  to  it  in  point  of  law.  >Ve  agree  that  they  might;  therefore 
all  these  must  be  taken  to  be  the  acts  of  the  defendant.  Then  he  has 
removed  the  plaintiff's  wool  to  a  place  of  deposit  for  his  own  wools; 
he  has  weighed  it  with  his  other  purchases  of  wool  ;  he  has  packed  it 
in  his  own  sheeting:  everything  is  complete  but  the  payment  of  the 
price.     It  was   argued  that,  because  by  the  course  of  dealing  he  was 


784  EDAN    V.    DUDFIELD.  [CHAP.  VT. 

not  to  remove  the  wool  to  a  distance  before  payment  of  the  price,1  the 
property  had  not  passed  to  him,  or  that  the  plaintiff  retained  such  a 
hen  on  it  us  was  inconsistent  with  the  notion  of  an  actual  delivery. 
We  think  that,  upon  this  evidence,  the  place  to  which  the  wools  were 
removed  must  be  considered  as  the  defendant's  warehouse,  and  that  he 
was  in  actual  possession  of  it  there  as  soon  as  it  was  weighed  and 
packed  ;  that  it  was  thenceforward  at  his  risk,  and  if  burned  must  have 
been  paid  for  by  him.  Consistently  with  this,  however,  the  plaintiff 
had  not  what  is  commonly  called  a  lien,  determinable  on  the  loss  of 
possession,  but  a  special  interest,  sometimes,  but  improperly,  called  a 
lien,  growing  out  of  his  original  ownership,  independent  of  the  actual 
possession,  and  consistent  with  the  property  being  in  the  defendant. 
This  he  retained  in  respect  of  the  term  agreed  on,  4hat  the  goods 
should  not  be  removed  to  their  ultimate  place  of  destination  before 
payment.  But  this  lien  is  consistent,  as  we  have  stated,  with  the 
possession  having  passed  to  the  buyer,  so  that  there  may  have  been  a 
delivery  to  and  actual  receipt  by  him.  This,  we  think,  is  the  proper 
conclusion  upon  the  present  evidence ;  and  there  will  be  no  rule. 

Rule  refused.2 


EDAN  v.   DUDFIELD. 
In  the  Queen's  Bench,  January  12,  1841. 

[Reported  in  1  Queen's  Bench  Reports,  302.] 

Debt  for  goods  sold  and  delivered,  and  on  an  account  stated. 

Pleas.  1.  As  to  all  but  £1  9s.  2d.,  parcel  &c,  nunquam  indebitatus. 
Issue  thereon. 

2.  As  to  the  same,  a  set-off.  Replication,  denying  the  debt  set  off. 
Issue  thereon. 

3  As  to  the  £1  9s.  2d.,  tender  of  the  same;  which  the  plaintiff 
took  out  of  court,  and  acknowledged  satisfaction  pro  tanto. 

On  the  trial  before  Lord  Denman,  C.  J.,  at  the  Middlesex  sittings 
after  Hilary  term,  1839,  it  appeared  that  the  defendant  was  employed 
by  the  plaintiff  to  clear  goods  for  him  at  the  custom-house,  and  was 
accustomed  to  enter  goods  of  the  plaintiff,  and  did  actually  enter  the 
goods  now  in  question  (German  toys),  then  belonging  to  the  plaintiff, 
in  his  own  name.  In  the  beginning  of  April,  1838,  plaintiff  was  in 
defendant's  debt  to  the  amount  of  about  £50,  and  defendant  proposed 
to  plaintiff  that  the  goods  should  be  sold,  and  that  defendant  should 
retain  his  debt  out  of  the  proceeds  ;  the  plaintiff  assented  to  this,  ami 
gave  defendant  a  written  authority  to  sell  them.      Afterwards    and 

1  The  evidence  of  Bamford,  the  agent,  was  (after  stating  the  deposit  at  Town- 
row's)  It,  is  a  regular  thing  for  the  wool,  when  bought,  to  remain  where  it  is  kept 
until  it  is  paid  fur. 

2  See  Blackburn  on  Sale,  pp.  38-41. 


SECT.  V.]  EDAX    V.    DUDFIELD.  785 

before  any  sale,  defendant,  in  conversation  with  an  agent  of  plaintiff, 
said  that  be  would  keep  the  goods  himself  at  the  invoice  price,  less  a 
discount  of  15  per  cent:  this  was  communicated  to  plaintiff.  The 
goods  were  subsequently  sold  by  defendant  about  the  end  of  April. 
Afterwards  the  defendant  delivered  an  account  current  to  the  plain! iff, 
in  which  was  an  item,  under  date  of  April,  Ik.jX,  "  Two  cases  of  toys, 
&c,  sold  for  £120."  The  counsel  for  the  defendant  objected  that  there 
was  no  acceptance  to  satisfy  §  17  of  the  Statute  of  Frauds;  but  the 
Lord  Chief  Justice  held  that  there  was  a  case  for  the  jury,  reserving 
leave  to  move  for  a  nonsuit.  Verdict  for  plaintiff. 

TJiomas  showed  cause. 

Kelly,  contra.  Cur.  ach>.  vult. 

Lord  Denman,  C.  J.,  in  this  term  (January  12)  delivered  the 
judgment  of  the  court.  After  stating  the  ground  of  motion  to  be 
that  there  was  no  memorandum  in  writing,  nor,  as  the  defendant 
alleged,  any  acceptance,  his  Lordship  proceeded  as  follows:  — 

The  facts  were  that  the  defendant  had  acted  as  agent  for  the  plain- 
tiff on  several  occasions  in' relation  to  certain  merchandises  imported 
from  France,  and  that  the  goods  in  question  were  lying  at  the  custom- 
house in  the  defendant's  name,  to  be  sold  by  him  for  the  plaintiff.  The 
plaintiff  was  considerably  indebted  to  the  defendant,  who  was  pressing 
that  a  sale  should  be  made  that  he  might  pay  himself  out  of  the  pro- 
ceeds, and  an  authority  to  sell  dated  6th  April  was  given  by  the 
plaintiff  to  the  defendant,  and  produced  in  the  course  of  the  plaintiffs 
evidence.  But  a  witness  stated  that  at  the  end  of  the  same  month 
he  had  called  on  the  defendant  on  behalf  of  the  plaintiff,  and  that  in 
that  conversation  the  defendant  finally  agreed  to  buy  these  goods 
himself  1">  per  cent  under  the  cost  price.  The  defendant  subse- 
quently sold  the  goods  and  rendered  a  debtor  and  creditor  account  to 
the  plaintiff,  in  which  credit  was  given  to  the  plaintiff  for  the  goods  by 
an  item  in  these  words:  "  Goods  (describing  them)  sold  for  £120." 
The  action  was  brought  in  effect  for  that  sum,  and  the  verdict  passed 
accordingly. 

The  plaintiff  argued  that  this  parol  contract  of  sale  was  binding 
within  the  statute,  because  the  defendant  had  accepted  the  goods  in 
selling  them  and  keeping  the  money.  This  was  denied  ;  and  it  was 
said  that  the  statute,  requiring  acceptance  and  actual  receipt  of  the 
whole  or  part  where  there  was  no  written  memorandum,  could  not  be 
satisfied  in  the  case  of  one  at  the  time  of  the  bargain  possessed  of 
the  goods,  inasmuch  as  that  circumstance  prevents  them  from  being 
delivered  to  him  or  actually  received  by  him  in  virtue  of  the  sale.  At 
all  events  it  was  contended  that  no  act  could  be  relied  on  to  prove 
acceptance  and  receipt  but  what  was  inconsistent  with  the  purpose  of 
the  prior  possession  ;  whereas  in  this  case  all  that  was  done,  the  sale 
and  the  account  rendered,  were  perfectly  consistent  with  the  authority 
previously  given  and  the  defendant's  character  of  agent.     We  nave 

60 


786  EDAN    V.    DUDFIELD.  [CHAP.  VI. 

no  doubt  that  one  person  in  possession  of  another's  goods  may  become 
the  purchaser  of  them  by  parol,  and  may  do  subsequent  acts  with- 
out any  writing  between  the  parties  which  amount  to  acceptance 
[receipt?1] ;  and  the  effect  of  such  acts,  necessarily  to  be  proved  by 
parol  evidence,  must  be  submitted  to  the  jury.  We  entertain  this 
opinion  after  fully  considering  all  the  cases  cited,  especially  Elmore 
v.  Stone,  1  Taunt.  458  ;  Nicholle  v.  Plume,  1  C.  &  P.  272  ;  Maberley 
v.  Sheppard,  10  Bing.  99  ; 2  agreeing  that  such  evidence  must  be 
unequivocal,  but  thinking  the  question,  whether  it  is  so  or  not  under 
all  the  circumstances,  fact  for  the  jury,  not  matter  of  law  for  the 
court. 

It  was  indeed  contended  that  parol  evidence  was  inadmissible  to 
explain  tne  character  of  the  acts  relied  on  to  prove  acceptance  ;  for 
that  to  admit  it  would  let  in  all  the  inconvenience  which  the  statute 
was  intended  to  prevent.  No  case,  however,  warrants  the  holding  the 
rule  so  strict :  nor  does  convenience  require  it ;  for  where  there  is  the 
foundation  of  an  act  done  to  build  upon,  the  admission  of  declarations 
to  explain  that  act  lets  in  only  that  unavoidable  degree  of  uncertainty 
to  which  all  transactions  to  be  proved  by  ordinary  parol  evidence  are 
liable.  Upon  this  principle  stat.  9  G.  4,  c.  14,  §  1,  on  a  very  anal- 
ogous matter,  has  been  construed  in  the  Court  of  Exchequer.  For, 
whilst  in  Willis  v.  Newham,  3  Y.  &  J.  518,  it  was  held  that  part  pay- 
ment, to  take  a  case  out  of  the  Statute  of  Limitations,  could  not  be 
proved  by  a  verbal  acknowledgment  only,  it  was  held  in  Waters  v. 
Tompkins,  2  C.  M.  &  R.  723,  s.  c.  Tyrwh.  &  Gr.  137,  that,  where  a 
sum  had  been  paid  without  any  statement  on  what  account,  declara- 
tions were  admissible  to  explain  on  what  account.  Therefore  a  non- 
suit cannot  be  entered. 

The  motion  for  a  new  trial,  on  the  ground  that  the  verdict  was 
against  the  evidence,  was  supported  by  some  very  strong  observations 
on  the  probabilities  of  the  case,  which  were  not,  however,  exclusively 
in  favor  of  the  defendant.  It  was  moved  for  also  on  defendant's 
affidavit,  which  we  have  thought  it  right  to  examine  carefully  with 
those  on  the  other  side.  The  answer  which  these  give  is  complete : 
no  subsequent  information  has  been  or  can  be  obtained  ;  and  the 
defendant's  case  is  narrowed  to  the  improbability  that  that  of  his 
adversary  can  be  true.  But  this  has  been  already  considered  by  the 
jury,  who  were  satisfied  with  the  proof  of  it  by  a  witness  whose  char- 
acter stands  unimpeached.  Rule  discharged. 

*  See  Benj  on  Sale,  §  173. 

2  And  see  Dodsley  v.  Varley,  12  A.  &  E.  632. 


SECT.  V.J  BILL   V.    BAMENT.  787 


BILL  v.  BAMENT. 
In  the  Exchequer,  November  11,  1841. 

[/tf/iorted  in  9  Meeson  §•  Welsbi/,  36.] 

Assumpsit  for  goods  sold  and  delivered,  and  on  an  account  stated. 
Plea,  non  assumpsit.  At  the  trial  before  Lord  Abinger,  C  B.,  at  the 
London  sittings  after  Trinity  term,  the  following  facts  appeared  :  — 

The  defendant  ordered  of  one  Harvey,  who  was  an  agent  of  the 
plaintiff  under  a  del  credere  commission,  a  quantity  of  goods,  including 
twenty  dozen  hair-brushes  and  twelve  dozen  clothes-brushes  to  be  paid 
for  on  delivery  at  a  stipulated  price,  but  no  memorandum  in  writing  of 
the  bargain  was  made  at  the  time.  On  receiving  notice  from  Harvey 
that  the  brushes  had  arrived  at  his  warehouse,  the  defendant  on  the 
22d  of  March  last  went  there,  and  directed  a  boy  whom  he  saw  there 
to  alter  the  mark  "  No.  1  "  upon  one  of  the  packages  to  "  No.  12,"  and 
to  send  the  whole  of  the  goods  to  the  St.  Catharine's  Docks.  The  next 
day  an  invoice  was  delivered  to  the  defendant,  charging  the  brushes 
respectively  at  the  rate  of  8s.  and  12s.  each.  The  defendant  objected 
to  the  price,  alleging  that  by  the  contract,  as  he  had  understood  it,  the 
above  were  to  be  the  prices  of  the  brushes  per  dozen,  and  refused  to 
pay  for  them.  On  the  24th  of  March  the  plaintiff  commenced  the  pres- 
ent action  for  the  price.  On  the  27th  the  defendant  at  Harvey's  request 
wrote  in  Harvey's  ledger,  at  the  bottom  of  the  page  which  contained 
the  statement  of  the  articles  ordered  by  the  defendant,  and  which  page 
was  headed  "Bill  &  Co.,"  the  following  words:  "Received  the  above, 
John  Bament."  The  rest  of  the  goods  were  sent  to  and  received  by  the 
defendant.  It  was  objected  for  the  defendant  that  there  was  no  evidence 
of  any  contract  in  writing,  or  of  any  acceptance  of  the  brushes,  sufficient 
to  satisfy  the  17th  section  of  the  Statute  of  Frauds.  The  Lord  Chief 
Baron  reserved  the  point,  and  the  plaintiff  had  a  verdict  for  the  amount 
claimed,  leave  being  reserved  to  the  defendant  to  move  to  enter  a 
nonsuit. 

Thesiger  and  Martin  now  showed  cause. 

Erie  (with  whom  was  Whateley),  contra. 

Lord  Abinger,  C.  B.  If  the  question  at  the  trial  had  turned  alto- 
gether upon  the  acceptance,  I  should  then  have  formed  the  same  opinion 
as  I  do  now.  In  order  to  make  it  such  an  acceptance  as  to  satisfy  the 
statute,  it  should  appear  that  there  was  a  delivery.  Here  Harvey  was 
the  plaintiff's  agent,  and  sold  for  ready  money ;  and  he  was  not  bound 
to  deliver  the  goods  until  payment  of  the  price.  Now  all  that  takes 
place  is  a  direction  by  the  defendant  to  alter  the  mark  on  the  goods, 
and  to  send  them  to  the  docks  ;  but  the  question  is,  whether  this  was 
done  under  such  circumstances,  and  Harvey  stood  in  such  a  situation, 
as  that  he  was  bound  to  send  them  to  the  docks.  The  acceptance,  to 
be  effectual  under  the  statute,  should  be  such  as  to  devest  die  property 


788  BILL   V.   BA.MENT.  [CHAP.  VI. 

in  the  goods  out  of  the  seller.  Here  the  defendant  probably  meant  to 
accept  them,  and  to  make  Harvey  his  agent  for  shipping  them.  But 
can  it  be  said  that  he  was  his  agent  to  deliver  at  all  events?  I  think 
clearly  not.  He  was  at  liberty  to  say  that  he  would  not  deliver  to  or 
ship  for  the  defendant  until  the  goods  were  paid  for.  There  is  nothing 
to  show  that  he  contracted  to  hold  them  as  the  defendant's  agent,  or  by 
implication  to  make  him  his  agent.  Therefore,  for  want  of  a  delivery, 
there  was  no  sufficient  acceptance  of  these  goods.  The  rule  will  be 
absolute,  but  not  for  a  nonsuit,  as  it  appears  that  some  goods  were 
received  by  the  defendant,  but  for  a  new  trial  on  payment  of  costs  by 
the  plaintiff. 

Pakke,  B.  I  concur  in  thinking  that  there  was  no  evidence  to  go  to 
the  jury  to  satisfy  the  Statute  of  Frauds.  With  regard  to  the  point 
which  has  been  made  by  Mr.  Martin,  that  a  memorandum  in  writing 
after  action  brought  is  sufficient,  it  is  certainly  quite  a  new  point ;  but 
I  am  clearly  of  opinion  that  it  is  untenable.  There  must,  in  order  to 
sustain  the  action,  be  a  good  contract  in  existence  at  the  time  of  action 
brought ;  and  to  make  it  a  good  contract  under  the  statute  there  must 
be  one  of  the  three  requisites  therein  mentioned.  I  think  therefore  that 
a  written  memorandum,  or  part  payment  after  action  brought,  is  not 
sufficient  to  satisfy  the  statute.  Then,  to  take  the  case  out  of  the  17th 
section,  there  must  be  both  delivery  and  acceptance  ;  and  the  question 
is,  whether  they  have  been  proved  in  the  present  case.  I  think  they 
have  not.  I  agree  there  was  evidence  for  the  jury  of  acceptance,  or 
rather  of  intended  acceptance.  The  direction  to  mark  the  goods  was 
evidence  to  go  to  the  jury  quo  animo  the  defendant  took  possession  of 
them :  so  also  the  receipt  was  some  evidence  of  an  acceptance.  But 
there  must  also  be  a  delivery ;  and  to  constitute  that  the  possession 
must  have  been  parted  with  by  the  owner  so  as  to  deprive  him  of  the 
right  of  lien.  Harvey  might  have  agreed  to  hold  the  goods  as  the 
warehouseman  of  the  defendant,  so  as  to  deprive  himself  of  the  right  to 
refuse  to  deliver  them  without  payment  of  the  price  ;  but  of  that  there 
was  no  proof.  There  was  no  evidence  of  actual  marking  of  the  goods, 
or  that  the  order  to  mark  was  assented  to  b}r  Harvey.  I  am  of  opinion, 
therefore,  that  there  was  no  sufficient  proof  of  acceptance  to  satisfy  the 
statute,  and  that  the  case  falls  within  the  17th  section. 

Gukney,  B.,  and  Rolfe,  B.,  concurred. 

Rule  absolute  accordingly . 


SECT.  V.]  LILLYWIIiTE   V.    DEVERKUX.  789 


LILLYWHITE   v.  DEVEREUX. 

In  the  Exchequer,  February  21,  1846. 

[Reported  i?i  15  Meeson  $•  Welsh y,  285.] 

Tins  was  an  action  brought  against  the  defendant  as  executrix  in  her 
own  wrong  of  James  Edward  Devereux,  deceased.  The  declaration 
contained  amongst  others  a  count  for  the  use  and  occupation  of  a  dwel- 
ling-house, and  also  a  count  for  goods  sold  and  delivered  to  the  deceasi  d 
in  his  lifetime,  and  promises  by  him.  Nothing  turned  on  the  other  two 
counts.  At  the  trial  before  Tindal,  C.  J.,  at  the  last  assizes  for  Surrey, 
it  appeared  that  the  defendant  was  the  daughter  of  the  deceased  ami 
had  intermeddled  with  his  property  after  his  decease.  It  was  proved 
in  evidence  that  the  house  had  been  let  furnished  by  the  plaintiff  to  the 
deceased  at  £1  5s.  per  week.  About  the  middle  of  December,  1845, 
the  plaintiff,  who  was  himself  a  tenant  to  a  Wm.  Kent,  was  desirous  of 
getting  rid  of  that  tenancy  from  the  25th  of  the  month,  the  end  of  the 
current  year  oi  his  holding,  and  offered  to  sell  the  furniture  of  the  house 
to  the  deceased  for  £50.  This  the  deceased  thought  too  much,  but 
verbally  agreed  to  have  the  goods  valued,  and  pa)'  as  much  as  they 
should  be  found  worth,  Mr.  Kent  agreeing  to  accept  the  deceased  as 
tenant  from  that  day.  On  the  14th  a  valuer  of  the  name  of  Piggott 
was  sent  for,  with  the  approbation  of  both  parties,  who  valued  the 
goods  at  £80.  This  the  defendant  refused  to  give,  but  offered  to  give 
the  amount,  £50,  at  which  the  plaintiff  had  before  offered  to  sell  them. 
On  Christmas  eve,  one  Elland,  the  brother-in-law  of  the  plaintiff,  took 
the  key  out  of  the  street  door  of  the  house  and  gave  it  to  the  defendant, 
—  the  deceased  being  at  that  time  very  ill.  —  with  a  view  of  giving  up 
the  house  to  the  deceased,  that  a  new  holding  should  be  commenced 
after  that  period  under  Kent.  On  that  occasion  the  defendant  said, 
after  she  received  the  ke)',  "How  about  the  furniture?"  to  which  Elland 
replied,  "You  must  settle  about  that  with  Wm.  Lillywhite"  (the  plain- 
tiff). Kent  refused  to  receive  the  deceased  as  his  tenant,  and  he  con- 
tinued to  occupy  the  house  and  furniture  as  before,  giving  to  the  plaintiff, 
however,  continually  notice  to  take  away  the  furniture,  which  he  refused 
to  do;  and  ultimateby,  about  the  17th  of  March  following,  it  was 
removed  by  the  deceased  to  a  broker's  near,  and  notice  thereof  was 
given  to  the  plaintiff.  Soon  afterwards  the  deceased  removed  to  another 
house  with  his  daughter.  The  action  was  brought  to  recover  the  rent 
up  to  this  period,  and  also  the  price  of  the  furniture.  The  Lord  Chief 
Justice  directed  the  jury,  first,  that  there  was  no  evidence  of  any  change 
in  the  terms  of  the  tenancy,  as  the  intended  holding  under  Kent  had 
gone  off,  and  without  the  consent  of  the  plaintiff  to  letting  the  house  at 
a  lower  rent  than  the  £1  os.  per  week  ;  and,  secondly,  that  it  was  for 
the  jury  to  say,  whether  by  continuing  in  possession  alter  the  valuation 


790  LILLYWH1TE   V.   DEVEREUX.  [CHAP.  VI. 

the  deceased  did  not  accept  and  take  possession  of  the  furniture  at  the 
valued  price.     The  jury  found  a  verdict  on  both  counts,  damages  £92. 

Dowling,  Serjt.,  now  showed  cause. 

Chambers  and  Fortescue,  in  support  of  the  rule.  Cur.  adv.  vult. 

The  judgment  of  the  court  was  now  delivered  by 

Alderson,  B.  This  case  was  argued  last  term  before  my  Lord  Chief 
Baron,  my  brother  Piatt,  and  myself.  The  motion  was  that  there 
should  be  a  new  trial  unless  the  plaintiff  would  consent  to  reduce  the 
verdict.  There  were  two  demands  :  One  for  the  use  and  occupation  of 
a  house  ;  and  the  question  as  to  that  was,  whether  the  rate  of  charge 
should  be  as  for  a  furnished  or  an  unfurnished  house  ;  in  the  one  case 
the  amount  of  damages  being,  as  to  this  part  of  the  demand,  £5,  in  the 
other  £17  10s.  The  second  demand  was  for  the  price  of  the  furniture, 
alleged  to  have  been  sold  by  the  plaintiff  to  the  deceased.  This  ques- 
tion turned  upon  the  fact,  whether  there  had  been  an  acceptance  of 
goods  by  the  testator,  so  as  to  take  the  case  out  of  the  operation  of  the 
Statute  of  Frauds  :  there  was  no  contract  in  writing  for  the  purchase. 
The  Lord  Chief  Justice  left  the  question  to  the  jury,  who  found  in  favor 
of  the  plaintiff.  The  goods  in  question,  the  subject  of  dispute,  were  in 
the  possession  of  the  defendant  at  the  time  when  the  contract  was 
made. 

No  doubt  can  be  entertained,  after  the  case  of  Edan  v.  Dudfield, 
which  was  well  decided  by  the  Court  of  Queen's  Bench,  that  this  is  a 
question  of  fact  for  the  jury  ;  and  that,  if  it  appears  that  the  conduct 
of  a  defendant  in  dealing  with  goods  already  in  his  possession  is  wholly 
inconsistent  with  the  supposition  that  his  former  possession  continues 
unchanged,  he  may  properly  be  said  to  have  accepted  and  actually 
received  such  goods  under  a  contract,  so  as  to  take  the  case  out  of  the 
operation  of  the  Statute  of  Frauds ;  as  for  instance  if  he  sells  or 
attempts  to  sell  goods,  or  if  he  disposes  absolutely  of  the  whole  or  any 
part  of  them  or  attempts  to  do  so,  or  alters  the  nature  of  the  property, 
or  the  like.  But  we  think  such  facts  must  be  clearly  shown  ;  and  in 
this  case,  after  careful  consideration  of  all  the  facts  contained  in  my 
Lord  Chief  Justice's  notes,  we  can  find  no  sufficient  evidence  of  this 
sort.  We  therefore  think  the  verdict  of  the  jury  as  to  this  part  of  the 
case  is  altogether  wrong,  and  that  there  really  was  no  evidence  of 
acceptance  so  as  to  take  this  case  out  of  the  operation  of  the  Statute  of 
Frauds.  And  if  so,  it  is  clear  that  the  subsequent  possession  by  the 
testator  was  the  use  and  occupation  of  a  furnished  and  not  of  an  unfur- 
nished house.  We  therefore  think  there  should  be  a  new  trial  unless 
the  plaintiff  consents  to  reduce  the  damages  to  £17  10s. 

liule  absolute  accordhujbj. 


SECT.  V.J  FARINA   V.    HOME.  791 


FARINA  v.  HOME. 
In  the  Exchequer,  November  16,  1846. 

[Reported  in  16  Aleeson  Sf  Welsh  ij,  119.] 

Debt  for  goods  sold  and  delivered,  and  on  an  account  stated.  Plea. 
nunquam  i  >)<l<:bitatiis. 

At  the  trial  before  the  under-sheriff  of  Middlesex  it  appeared  that 
the  action  was  brought  by  the  plaintiff,  the  well-known  manufacturer  of 
eau-de-Cologne,  residing  at  the  city  of  Cologne,  to  recover  from  the 
defendant,  a  dealer  in  eau-de-Cologne  in  London,  the  sum  of  £15.  price 
of  twenty-live  dozen  of  eau-de-Cologne,  which  in  July,  1845,  the  defend- 
ant had  verbally  ordered  from  the  plaintiff.  It  was  accordingly  sent  by 
the  plaintiff  from  abroad  to  a  shipping  agent  of  the  plaintiff  in  London 
named  Brenchley,  who  received  it  and  warehoused  it  with  one  Barber 
a  wharfinger,  at  the  same  time  informing  the  defendant  of  its  arrival. 
On  receipt  of  the  goods  Barber  handed  to  Brenchley  a  delivery  warrant 
dated  21st  July,  whereby  they  were  made  deliverable  to  Brenchley  or 
his  assignee  by  indorsement  on  payment  of  rent  and  charges  from  the 
25th  of  July.  Brenchley  forthwith  indorsed  and  sent  it  to  the  defendant. 
The  defendant  kept  the  warrant  for  about  ten  months;  and,  although 
repeatedly  applied  to  to  pa}-  the  price  of  and  charges  on  the  goods,  he 
did  not  do  so  ;  and  he  refused  also  to  give  back  the  warrant,  saying 
that  he  had  sent  it  to  his  solicitor  and  that  he  intended  to  defend  the 
action,  for  he  had  never  ordered  the  goods  ;  and  adding  that  they  would 
remain  for  the  present  in  bond. 

Upon  these  facts  it  was  contended  for  the  defendant  that  there  was 
no  evidence  of  the  delivery  and  acceptance  of  the  goods  sufficient  to 
satisfy  the  Statute  of  Frauds.  The  under-sheriff  left  the  question  to 
the  jury,  whether  the  defendant  had  accepted  and  received  the  goods, 
stating  that  to  bring  the  case  within  the  statute  it  must  be  an  accept- 
ance with  the  intention  of  taking  possession  as  owner.  The  jury  found 
a  verdict  for  plaintiff,  damages  £1G  lis. 

Thomas  showed  cause. 

Prentice,  in  support  of  the  rule. 

The  judgment  of  the  court  was  now  delivered  by 

Parke,  B.  In  this  case,  which  was  argued  before  us  in  the  absence 
of  the  Lord  Chief  Baron  a  few  days  ago,  the  only  point  we  wished  to 
consider  was,  whether  there  was  sufficient  evidence  of  the  acceptance 
and  actual  receipt  of  the  goods  to  satisfy  the  17th  section  of  the  Statute 
of  Frauds.  The  evidence  as  to  this  part  of  the  case  was  that,  after  the 
defendant  had  verbally  ordered  a  quantity  of  eau-de-Cologne,  and  at 
the  price  of  more  than  £10,  from  the  plaintiffs  agent  in  London  (the 
plaintiff  residing  at  Cologne),  a  case  containing  the  quantity  ordered 
was  received  by  the  agent,  and   warehoused   by  him  with  a  wharfinger 


792  FAKINA   V.    HOME.  [CHAP.  VI. 

and  warehouse-keeper  who  gave  for  it  a  document  dated  the  21st  of 
July  which  is  called  a  warrant,  by  which  the  case  was  made  deliverable 
to  the  agent  or  his  assignee  by  indorsement,  on  payment  of  rent  and 
charges  from  the  25th  of  July,  and  the  agent  indorsed  it  to  the  defendant 
and  sent  it  to  him.  This  warrant  the  defendant  kept  for  some  months. 
He  was  repeatedly  applied  to  for  the  charges  upon  and  price  of  the 
eau-de-Cologne,  which  he  did  not  pay  ;  nor  did  he  return  the  warrant 
when  asked  for  it,  but  said  he  had  sent  it  to  his  solicitor,  and  meant  to 
defend  the  action,  as  he  had  never  ordered  the  goods  ;  and  he  further 
said  the  goods  would  remain  at  present  in  bond. 

It  was  contended  on  the  trial  before  the  under-sheriff  that  there  was 
no  such  evidence  of  the  acceptance  and  receipt  of  the  goods  as  to  bind 
the  bargain.  The  under-sheriff  left  the  question  of  receipt  and  accept- 
ance to  the  jury,  stating,  and  correctly  stating,  that  to  bring  the  case 
within  the  statute  the  acceptance  must  be  with  the  intention  of  taking 
possession  as  owner.  The  jury  found  a  verdict  for  the  plaintiff.  The 
under-sheriff  ordered  the  writ  of  trial  to  be  retained,  in  order  to  allow 
time  for  an  application  to  the  court.  On  a  motion  for  a  new  trial  we 
intimated  our  opinion  that  there  was  evidence  to  go  to  the  jury  of  the 
defendant's  acceptance  of  the  goods  by  retaining  the  delivery  warrant; 
but  Mr.  Prentice  insisted  that  there  was  no  sufficient  evidence  of  the 
actual  receipt  of  the  goods,  that  is,  the  delivery  of  the  possession  of  the 
goods  on  behalf  of  the  vendor  to  the  vendee,  and  the  receipt  of  the 
possession  by  the  vendee  ;  and  that  the  delivery  and  receipt  of  the  war- 
rant was  not  in  effect  the  same  thing  as  the  delivery  and  receipt  of  the 
goods  ;  and  we  are  all  of  that  opinion.  This  warrant  is  no  more  than 
an  engagement  by  the  wharfinger  to  deliver  to  the  consignee  or  any 
one  he  may  appoint ;  and  the  wharfinger  holds  the  goods  as  the  agent 
of  the  consignee  (who  is  the  vendor's  agent),  and  his  possession  is  that 
of  the  consignee  until  an  assignment  has  taken  place,  and  the  wharfinger 
has  attorned,  so  to  speak,  to  the  assignee,  and  agreed  with  him  to  hold 
for  him.  Then,  and  not  till  then,  the  wharfinger  is  the  agent  or  bailee 
of  the  assignee,  and  his  possession  that  of  the  assignee,  and  then  only 
is  there  a  constructive  delivery  to  him.  In  the  mean  time  the  warrant, 
and  the  indorsement  of  the  warrant,  is  nothing  more  than  an  offer  to 
hold  the  goods  as  the  warehouseman  of  the  assignee.  The  case  is  in 
principle  the  same  as  that  of  Bentall  v.  Burn,  and  others,  which  are 
stated  and  well  discussed  in  a  recent  able  work  of  Mr.  Blackburn,  "On 
the  Contract  of  Sale,"  pp.  27-41,  297  ;  and  in  Mr.  C.  Addison's  work, 
j).  70.  We  all  therefore  think  that,  though  there  was  sufficient  evidence 
of  the  acceptance  if  the  goods  had  been  delivered  to  the  defendant, 
there  is  none  of  the  receipt ;  and  therefore  there  must  be  a  new  trial. 

Hide  absolute. 


SECT.  V.]  MORTON   V.   TIBBETT.  793 


MORTON   v.   TIBBETT. 

In  the  Queen's  Bench,  May  31,  1850. 

[Reported  in  15  Queen's  Bench  Reports,  428.] 

Debt  for  goods  sold  and  delivered,  and  goods  bargained  and  sold. 
Plea,  nungttam  indebitatus.     Issue  thereon. 

On  the  trial  before  Pollock,  C.  B.,  at  the  Cambridgeshire  spring 
assizes,  1<S49,  it  appeared  that  the  action  was  brought  to  recover  the 
price  of  fifty  quarters  of  wheat.  On  '25th  August,  1848,  the  plaintiff 
sold  the  wheat  to  the  defendant  by  sample.  The  defendant  said  that 
he  would  send  one  Edgley,  a  general  carrier  and  lighterman,  on  the 
following  morning  to  receive  the  residue  of  the  wheat  in  a  lighter  for 
the  purpose  of  conveying  it  by  water  from  March,  where  it  then  was, 
to  Wisbeach  ;  and  the  defendant  himself  took  the  sample  away  with 
him.  On  2(Jth  August  Edgley  received  the  wheat  accordingly.  On 
the  same  day  the  defendant  sold  the  wheat  at  a  profit,  by  the  same 
sample,  to  one  Ilampson  at  Wisbeach  market.  The  wheal  arrived  at 
Wisbeach  in  due  course  on  the  evening  of  Monday  the  28th  August, 
and  was  tendered  by  Edgley  to  Hampson  on  the  following  morning, 
when  he  refused  to  take  it,  on  the  ground  that  it  did  not  correspond 
with  the  sample.  Up  to  this  time  the  defendant  had  not  seen  the 
wheat;  nor  had  any  one  examined  it  on  his  behalf.  Notice  of  I  lamp- 
son's  repudiation  of  his  contract  was  given  to  the  defendant  .  and  the 
defendant  on  Wednesday  the  30th  August  sent  a  letter  to  the  plain- 
tiff repudiating  his  contract  with  the  plaintiff  on  the  same  ground. 
There  was  no  memorandum  in  writing  of  the  bargain  within  §17  of 
the  Statute  of  Frauds,  29  Car.  2,  c.  3  ;  and  it  was  objected  for  the 
defendant  that  there  was  no  evidence  of  acceptance  and  receipt  to 
satisfy  the  requirements  of  the  same  section.  The  Lord  Chief  Baron 
overruled  the  objection  ;  and  the  counsel  for  the  defendant  addressed 
the  jury  exclusively  on  the  question  of  such  acceptance  and  receipt. 
A  verdict  was  found  for  the  plaintiff,  and  leave  given  to  move  to  enter 
a  nonsuit,  if  the  court  should  think  either  that  there  was  no  evidence 
of  acceptance  and  receipt  or  no  such  evidence  as  justified  the  verdict. 
Worlledge  in  Easter  term,  1849,  obtained  a  rule  nisi  accordingly.  In 
this  term  (May  22d), 

Andrews  and  O1 'Medley  showed  cause. 
Worlledge  and  Couch,  contra.  Cur.  adv.  vidt. 

Lord  Campbell,  C.  J.,  now  delivered  judgment. 

In  this  case  the  question  submitted  to  us  is,  whether  there  was  any 
evidence  on  which  the  jury  could  be  justified  in  finding  that  the  buyer 
accepted  the  goods  and  actually  received  the  same,  so  as  to  render 
him  liable  as  buver.  although  he   did  not  give  anything  in   earnest  to 


794  MORTON    V.    TIBBETT.  [CHAP.  VI. 

bind  the  bargain  or  in  part  payment,  and  there  was  no  note  or  memo- 
randum in  writing  of  the  bargain. 

It  would  be  very  difficult  to  reconcile  the  cases  on  this  subject;  and 
the  difference  between  them  may  be  accounted  for  by  the  exact  words 
of  the  17th  section  of  the  Statute  of  Frauds  not  having  been  always 
had  in  recollection.  Judges  as  well  as  counsel  have  supposed  that, 
to  dispense  with  a  written  memorandum  of  the  bargain,  there  must 
first  have  been  a  receipt  of  the  goods  by  the  buyer,  and  after  that  an 
actual  acceptance  of  the  same.  Hence  perhaps  has  arisen  the  notion 
that  there  must  have  been  such  an  acceptance  as  would  preclude  the 
buyer  from  questioning  the  quantity  or  quality  of  the  goods,  or  in  any 
way  disputing  that  the  contract  has  been  fully  performed  by  the 
vendor.  But  the  words  of  the  Act  of  Parliament  are  [stating  them]. 
It  is  remarkable  that,  notwithstanding  the  importance  of  having  a 
written  memorandum  of  the  bargain,  the  Legislature  appears  to  have 
been  willing  that  this  might  be  dispensed  with  where  by  mutual  con- 
sent there  has  been  part  performance.  Hence  the  payment  of  any 
sum  in  earnest  to  bind  the  bargain  or  in  part  payment  is  sufficient. 
The  same  effect  is  given  to  the  corresponding  act  by  the  vendor 
of  delivering  part  of  the  goods  sold  to  the  buyer,  if  the  buyer 
shall  accept  such  part  and  actually  receive  the  same.  As  part 
payment  however  minute  the  sum  may  be  is  sufficient,  so  part 
delivery  however  minute  the  portion  may  be  is  sufficient.  This 
shows  conclusively  that  the  condition  imposed  was  not  the  complete 
fulfilment  of  the  contract  to  the  satisfaction  of  the  buyer.  In  truth 
the  effect  of  fulfilling  the  condition  is  merely  to  waive  written 
evidence  of  the  contract  and  to  allow  the  contract  to  be  established 
by  parol  as  before  the  Statute  of  Frauds  passed.  The  question  may 
then  arise,  whether  it  has  been  performed  either  on  the  one  side  or  the 
other.  The  acceptance  is  to  be  something  which  is  to  precede  or  at 
any  rate  to  be  contemporaneous  with  the  actual  receipt  of  the  goods, 
and  is  not  to  be  a  subsequent  act  after  the  goods  have  been  actually 
received,  weighed,  measured,  or  examined.  As  the  Act  of  Parliament 
expressly  makes  the  acceptance  and  actual  receipt  of  any  part  of  the 
goods  sold  sufficient,  it  must  be  open  to  the  buyer  to  object  at  all 
events  to  the  quantity  and  quality  of  the  residue,  and  even  where 
tin-re  is  a  sale  by  sample  that  the  residue  offered  does  not  correspond 
with  the  sample.  We  are  therefore  of  opinion  that,  whether  or  not  a 
delivery  of  the  goods  sold  to  a  carrier  or  any  agent  of  the  buyer  is 
sufficient,  still  there  may  be  an  acceptance  and  receipt  within  the 
meaning  of  the  Act  without  the  buyer  having  examined  the  goods 
or  done  anything  to  preclude  him  from  contending  that  they  do  not 
correspond  with  the  contract.  The  acceptance  to  let  in  parol  evi- 
dence of  the  contract  appears  to  us  to  be  a  different  acceptance  from 
that  which  affords  conclusive  evidence  of  the  contract  having  been 
fu]  illed. 

We  are  therefore  of  opinion  in  this  case  that,  although  the  defendant 


SECT.  V.]  MORTON    V.    TILSBETT.  7'J5 

hud  done  nothing  which  would  have  precluded  him  from  objecting 
that  the  wheat  delivered  to  Edgley  was  not  according  to  the  contract, 
there  was  evidence  to  justify  the  jury  in  finding  that  the  defendant 
accepted  and  received  it. 

We  will  now  examine  the  cases  which  are  supposed  to  prove  the 
doctrine  that  there  can  be  no  acceptance  within  the  meaning  of  the 
Statute  of  Frauds  unless  the  buyer  is  precluded  from  objecting  that 
the  vendor  has  riot  fully  performed  the  contract  on  his  part.  The  first 
of  these  was  Howe  v.  Palmer,  .'5  B.  &  Aid.  .'321,  which  we  clearly  think 
was  well  decided,  although  we  cannot  concur  in  all  the  reasons  given 
for  the  decision.  There  the  only  evidence  of  acceptance  and  receipt 
was  that  the  agent  of  the  vendor  who  had  verbally  sold  to  the  defendant 
twelve  bushels  of  tares,  part  of  a  larger  quantity  in  the  vendor's  posses- 
sion, had  measured  off  twelve  bushels  of  the  tares,  and  set  them  apart 
for  the  purchaser.  According  to  the  contract  they  were  to  remain  in 
the  possession  of  the  vendor  till  called  for.  The  purchaser  therefore 
neither  had  accepted  nor  received  the  goods.  Abbott,  C.  J.,  does  say  : 
"  if  he  had  once  accepted  he  could  not  afterwards  make  any  objection, 
even  if  it  tinned  out  that  the  tare's  did  not  correspond  with  the 
sample."  But  this  observation  was  quite  unnecessary  for  the  deter- 
mination of  the  case  ;  and,  with  the  most  sincere  respect  to  the  great 
judge  from  whom  it  fell,  we  do  not  think  that  it  is  applicable.  The 
proper  ratio  decidendi  seems  to  us  to  be  given  by  Holroyd,  J.,  where 
he  >ays  ;  "In  this  case  there  has  been  no  actual  receipt  of  any  part  of 
the  goods  sold  within  the  usual  meaning  of  the  term,  and  I  think  that 
what  has  been  done  ought  not  to  be  considered  in  point  of  law  as  an 
acceptance.  For  supposing  that  it  was  made  part  of  the  contract  in 
this  case  that  the  seller  should  set  apart  and  measure  the  thing  sold, 
that  would  not  make  the  act  of  measuring  amount  to  a  virtual  accept- 
ance or  receipt  of  the  goods  by  the  buyer."  The  next  case  relied  upon 
is  Tempest  v.  Fitzgerald,  3  B.  &  Aid.  G80,  where  in  an  action  for  the 
price  of  a  horse  that  had  died  after  the  time  when  he  was  sold  by  parol 
and  before  he  was  delivered  or  paid  for,  the  question  arose  upon  whom 
the  loss  should  fall.  The  only  evidence  of  acceptance  and  receipt  was 
that  while  the  horse  remained  in  the  possession  of  the  vendor,  the  pur- 
chaser made  his  servant  gallop  the  horse  and  gave  some  directions 
about  his  treatment,  requesting  that  he  might  be  kept  by  the  vendor  a 
week  longer.  The  court  held  that  there  had  been  no  acceptance  and 
receipt  of  the  horse  by  the  purchaser.  But  the  case  has  little  con- 
nection with  the  doctrine  contended  for,  that  there  must  be  an  oppor- 
tunity for  the  vendor  to  inspect  the  quality  of  the  thing  sold:  and 
Abbott,  C.  J.,  founds  his  judgment  upon  this  consideration,  that  the 
defendant  had  no  right  of  property  in  the  horse  till  the  price  was  paid, 
and  could  not  till  then  exercise  any  act  of  ownership  over  him. 
Holroyd,  J.,  says:  "There  is  no  evidence  to  show  that"  the  vendor 
"had  ever  parted  with  the  possession "  of  the  horse.  Next  conies 
Hanson  r.  Annitage,  5  B.  &  Aid.  557.     There  the  vendor,  who  resided 


796  MORTON    V.    TIBBETT.  [CHAP.  VI. 

in  London,  having  been  in  the  habit  of  selling  goods  to  a  customer  in 
the  country  and  of  delivering  them  to  a  wharfinger  to  be  forwarded  by 
the  first  ship,  in  pursuance  of  a  verbal  order  from  the  customer  de- 
livered a  parcel  of  goods  to  the  wharfinger  to  be  forwarded  in  the  usual 
manner.  The  customer  had  done  nothing  beyond  giving  the  verbal 
order  for  the  goods.  Abbott,  C.  J.,  in  a  very  few  words  delivered  the 
judgment  of  the  court  that  an  action  could  not  be  maintained  for  the 
price  of  the  goods,  on  the  ground  that  the  acceptance  in  this  case  not 
being  by  the  party  himself  was  not  sufficient,  referring  to  Howe  v.  Pal- 
mer, 3  B.  &  Aid.  321,  where  he  says :  "  It  was  held  that  there  could  be 
no  actual  acceptance  so  long  as  the  buyer  continued  to  have  a  right  to 
object  either  to  the  quantum  or  quality  of  the  goods."  But  the  decision 
may  well  stand  on  other  grounds;  and  we  may  observe  that  it  is  an 
actual  receipt  of  the  goods  which  the  statute  requires,  and  not  an  actual 
acceptance.  Carter  v.  Toussaint,  5  B.  &  Aid.  855,  was  likewise  relied 
upon,  but  it  was  merely  (like  Tempest  v.  Fitzgerald,  3  B.  &  Aid.  G80), 
a  case  of  a  sale  by  parol  of  a  horse  that  remained  always  in  the  posses- 
sion and  under  the  control  of  the  vendor,  so  that  he  could  not  have 
been  accepted  and  received  by  the  purchaser.  Abbott,  C.  J.,  says : 
"The  plaintiff's  character  of  owner  remained  unchanged  from  first  to 
last."  The  next  case  is  Smith  v.  Surman,  9  B.  &  C.  561,  and  there 
after  a  sale  of  timber  by  parol  the  purchaser  had  offered  to  sell  the 
butts,  and  had  given  some  directions  about  cross-cutting  the  timber;  but 
the  evidence  clearly  proved  that  the  whole  continued  to  remain  in  the 
possession  of  the  vendor.  The  court,  as  might  have  been  expected, 
held  that  there  could  be  no  receipt  by  the  purchaser  while  the  possession 
of  the  goods  remained  with  the  vendor.  A  very  learned  judge,  my 
brother  Parke,  does  unnecessarily  add,  9  B.  &  C.  577 :  4i  That  the  later 
cases  have  established  that,  unless  there  has  been  such  a  dealing  on  the 
part  of  the  purchaser  as  to  deprive  him  of  any  right  to  object  to  the 
quantity  or  quality  of  the  goods,  or  to  deprive  the  seller  of  his  right  of 
lien,  there  cannot  be  any  part  acceptance."  That  there  can  be  no 
acceptance  and  receipt  by  the  purchaser  while  the  lien  of  the  vendor 
remains  is  clear  enough,  for  the  vendor's  lien  necessarily  supposes  that 
he  retains  the  possession  of  the  goods  ;  but  I  must  be  permitted  to 
doubt  whether  the  cases  referred  to  have;  established  the  residue  of  the 
rule.  The  last  case  cited  on  behalf  of  the  defendant  was  Norman  v. 
Phillips,  14  M.  &  W.  277.  This  case  very  much  resembled  Hanson  v. 
Armitage,  5  B.  &  Aid.  557,  and  presented  no  stronger  evidence  of 
acceptance  and  receipt.  The  defendant  living  at  Wallingford  gave  the 
plaintiff,  a  timber  merchant  in  London,  a  verbal  order  for  timber,  direct- 
ing it  to  be  sent  to  the  Paddington  station  of  the  Great  Western  Kail- 
way  so  that  it  might  be  forwarded  to  him  at  Wallingford.  The  timber 
was  accordingly  forwarded  to  the  Wallingford  station  ;  but  the  defend- 
ant being  informed  of  its  arrival  refused  to  have  anything  to  do  with 
it.  The  court  held  that  although  there  might  be  a  scintilla  of  evidence 
for  the  jury  of  an  acceptance  of  the  timber  within  the  Statute  of  Frauds, 


SECT.  V.]  MOBTON   V.   TIBBETT.  797 

yet  there  was  not  sufficient  to  warrant  them  in  finding  that  there  was 
such  an  acceptance;  and  the  court  set  aside  a  verdict  for  the  plaintiff 
as  not  warranted  by  the  evidence.  Alderson,  B.,  says:  "The  true 
rule  appears  to  ine  to  be  that  acceptance  and  delivery  under  the  Statute 
of  Frauds  means  such  an  acceptance  as  precludes  the  purchaser  from 
objecting  to  the  quality  of  the  goods."  He  adds  what,  with  great 
deference,  is  a  better  reason:  "The  carrier  is  only  an  agent  for  the 
purpose  of  carrying,  and  here  the  purchaser  himself  immediately  re- 
fused to  take  the  goods."  It  was  upon  this  reason  that  the  rest  of 
the  court  appears  to  have  proceeded. 

If  there  were  such  a  rule  as  is  contended  for  it  would  Vie  decisive 
against  the  plaintiff  in  this  case,  for  the  defendant  never  had  an  oppor- 
tunity of  examining  the  goods  sold  ;  there  is  no  evidence  that  Edgley 
was  his  agent  for  that  purpose  ;  and  he  had  done  nothing  to  preclude 
him  from  objecting  to  the  quality  of  the  wheat,  lint  if  there  be  no 
such  rule,  then  surely  there  was  evidence  to  submit  to  the  jury  and  to 
justify  them  in  finding  an  acceptance  and  receipt.  He  specially  sent 
Edgley  to  receive  the  wheat:  after  the  delivery  of  the  wheat  to  his 
agent  and  when  it  was  no  longer  in  the  possession  of  the  vendor, 
instead  of  rejecting  it  as  in  other  eases,  he  exercised  an  act  of  owner- 
ship over  it  by  re-selling  it  at  a  profit,  and  altering  its  destination  by 
sending  it  to  another  wharf,  there  to  be  delivered  to  his  vendee.  The 
wheat  was  then  constructively  in  his  own  possession  ;  and  could  such 
a  re-sale  and  order  take  place  without  his  having  accepted  and  received 
the  commodity?  Does  it  lie  in  his  mouth  to  say  that  he  has  not 
accepted  that  which  he  has  re-sold  and  sent  on  to  be  delivered  to 
another?  At  any  rate  is  not  this  evidence  from  which  such  an 
acceptance  and  receipt  may  be  inferred  by  the  jury?  Upon  similar 
evidence  the  finding  of  an  acceptance  and  receipt  has  been  sanctioned 
by  very  eminent  judges.  In  Hart  v.  Sattley.  3  Campb.  528,  where 
goods  had  been  verbally  ordered  to  be  sent  fron  London  to  Dartmouth, 
and  were  sent  by  a  carrier  empWed  by  the  defendant,  and  were  not 
proved  to  have  been  rejected  bj*  him,  although  there  was  no  proof  that 
they  had  come  to  his  hands,  Chambre,  J.,  is  reported  to  have  said  :  "  I 
think  under  the  circumstances  of  this  case  the  defendant  must  be  con- 
sidered as  having  constituted  the  master  of  the  ship  his  agent  to  accept 
and  receive  the  goods."  The  plaintiff  recovered  a  verdict  which  was 
not  disturbed.  In  Chaplin  v.  Rogers.  1  East,  192,  where  a  stack  of  hav 
being  sold  by  parol  to  the  defendant  he,  without  paying  for  it  or  re- 
moving it.  re-sold  a  part  of  it  to  another  person  who  took  it  away,  and 
the  jury  found  that  the  defendant  had  accepted  and  received  the  stack 
of  hay,  Lord  Kenyon  said:  "The  question  was  specifically  left  to  the 
jury  whether  or  not  there  were  an  acceptance  of  the  hay  by  the  defend- 
ant, and  they  have  found  that  there  was,  which  puts  an  end  to  any 
question  of  law."  "  Here  the  defendant  dealt  with  this  commodity 
afterwards  as  if  it  were  in  his  actual  possession  ;  for  he  sold  part  of  it 
to  another  person."    "  The  other  judges  agreed  that  there  was  sufficient 


798  HUNT  V.    HECHT.  [CHAP.  VI. 

evidence  of  a  delivery  to  and  acceptance  by  the  defendant  to  leave  to 
the  jury."  And  the  verdict  for  the  plaintiff  was  confirmed.  So  in 
IMenkinsop  v.  Clayton,  7  Taunt.  597,  Gibbs,  C.  J.,  and  the  whole 
Court  of  Common  Pleas,  agreed  that  if  a  person  who  has  contracted 
lor  the  purchase  of  goods  offers  to  re-sell  them  as  his  own,  whether 
this  be  proof  of  an  acceptance  and  receipt  of  the  goods  by  himself  is 
a  question  for  the  jury.  1  will  onhy  further  mention  the  well-considered 
case  of  Bushel  v.  Wheeler,  8  Jurist,  532,  15  Q.  B.  442,  note,  decided 
in  this  court.  The  defendant  residing  in  Herefordshire  had  verbally 
ordered  goods  from  a  manufacturer  at  Bristol ;  according  to  his  orders 
they  were  sent  to  Hereford  and  deposited  in  a  warehouse  there.  After 
they  had  been  a  considerable  time  there  the  defendant  repudiated  them. 
In  an  action  for  the  price  before  a  most  learned  and  cautious  judge,  Mr. 
Justice  Erskine,  it  was  left  to  the  jury  whether  upon  the  evidence  the 
buyer  had  accepted  and  received  the  goods  ;  and  the  verdict  was  for 
the  defendant,  with  liberty  to  enter  a  verdict  for  the  plaintiff  if  the 
court  should  be  of  opinion  that  there  was  an  acceptance.  A  rule  to 
show  cause  was  granted  ;  and  cause  being  shown  the  court  unanimously 
approved  of  the  direction,  but  declined  to  take  upon  themselves  to  enter 
a  verdict  for  the  plaintiff,  and  made  a  rule  absolute  for  a  new  trial.  I 
particularly  rely  upon  the  pointed  language  in  that  case  of  my  brother 
Coleridge,  who,  after  observing  that  the  acceptance  required  b}'  the 
statute  must  be  very  clear  and  unequivocal,  says  that  it  may  be  con- 
structive ;  and  adds  that  "  it  is  a  question  for  the  jury,  whether  under 
all  the  circumstances"  "the  acts  which  the  buyer  does  or  forbears  to 
do  are  an  acceptance  or  otherwise." 

These  are  express  decisions  through  a  long  course  of  years  that 
there  may  be  an  acceptance  and  receipt  of  goods  by  a  purchaser 
within  the  Statute  of  Frauds,  although  he  has  had  no  opportunity  of 
examining  them,  and  although  he  has  done  nothing  to  preclude  himself 
from  objecting  that  the}'  do  not  correspond  with  the  contract.  We 
approve  of  these  decisions,  thinking  that  they  do  not  infringe  upon 
the  Statute  of  Frauds,  and  that  they  conduce  to  fair  dealing  in 
trade. 

We  are  therefore  of  opinion  that  in  this  case  the  rule  for  entering  a 
nonsuit  should  be  discharged.  Rule  discharged. 


HUNT  y.  HECHT. 
In  the  Exchequer,  June  6,   1853. 

[Reported  in  8  Exchequer  Reports,  814.] 

Declaration  for  goods  sold  and  delivered.     Plea,  never  indebted. 
At  the  trial  before  Martin,  B.,  at  the  London  sittings  after  Easter 
term,  it  appeared  that  in  February  last  the  defendant  went  to  the  ware- 


SECT.  V.]  HUNT   V.    IIECHT.  799 

house  of  the  plaintiff,  who  was  a  bone  merchant,  for  the  purpose  of  pur- 
chasing some  bones.  The  defendant  there  inspected  a  heap  consisting 
of  ox  bones  mixed  with  cow  bones  and  other  bones  of  an  inferior  de- 
scription. The  defendant  objected  to  the  latter,  but  verbally  agreed  to 
purchase  a  quantity  of  the  other  bones,  to  be  separated  from  the  rest 
and  to  contain  not  more  than  15  per  cent  of  cow  bones  ;  and  be  directed 
them  to  be  sent  in  sacks  bearing  particular  marks  to  the  wharf  of  one 
Barber  in  Lower  Thames  Street.  Shortly  afterwards  the  defendant  sent 
to  the  plaintiff  the  following  shipping  note  :  — 

Brewer's,  Chester's,  and  Galley  Quays,  Lower  Thames  Street. 
J.  Barber,  Wharfinger  and  Warehouse-keeper. 

Receive  and  ship  per  James  Stuckbury  &  Sons,  lighters,  the  under- 
mentioned goods :  — 

|      Mark      |       No.      | 

Wharf  charges  to  be  paid  by  Hecht  Brothers,  London. 

The  above  shipping  note  was  enclosed  in  the  following  letter:  — 

35  Seething  Lank,  Feb.  7,  1853. 
Dear  Sir,  —  We  beg  to  enclose  you  shipping  note  for  the  bones,  the 
leg  bones  to  be  marked  -,  and  the  bullocks  °-\     Please  fill  up  the  num- 

O  A  B  I 

ber  of  bags  in  the  shipping  note  and  send  the  goods  to  the  wharf,  latest 
by  Wednesday  morning  next.  Waiting  your  invoice  stating  how  many 
bags  of  each  sort,  we  are,  sir, 

Yours  sincerely,  Hecht  Brothers. 

Mr    A.  Jarred  Hunt,  Lambeth. 

The  plaintiff  accordingly  sent  fifty  bags  marked  as  requested,  and 
filled  up  the  shipping  note.  The  bags  were  delivered  at  the  wharf  and 
received  by  the  wharfinger  on  Wednesday  the  9th  of  February,  but  the 
defendant  was  not  aware  of  their  having  been  sent  until  the  following 
day  when  the  invoice  was  received.  The  defendant  then  examined  the 
bones,  and  refused  to  accept  them,  on  the  ground  that  they  were  not 
what  he  had  bargained  for.  It  was  objected  on  behalf  of  the  defendant 
that  there  was  no  evidence  of  acceptance  and  receipt  to  satisfy  the  re- 
quirements of  the  17th  section  of  the  Statute  of  Frauds,  29  Car.  2.  c.  3  ; 
and  the  learned  judge  being  of  that  opinion  nonsuited  the  plaintiff,  re- 
serving leave  for  him  to  move  to  enter  a  verdict  for  the  amount  claimed. 

Bramwell  showed  cause. 

J/nule  to  support  the  rule. 

Martin,  B.  The  question  is,  Whether  the  defendant  has  accepb  d 
and  actually  received  the  goods  bargained  for?  The  contract  was  to 
buy  such  bones  as  were  ordinary  merchantable  bones.  It  appears  that 
there  were  various  sorts  of  bones  intermixed  in  a  heap,  and  that  there 
was  no  purchase  of  the  bulk,  but  of  a  certain  article  to  be  selected  from 
it.  The  defendant  was  only  bound  to  accept  merchantable  bones  :  and 
an  order  is  given  to  a  wharfinger  to  receive  those  bones.  No  doubt  in 
one  sense  the  goods  were  received  by  the  defendant,  because  they  were 


800  PARKER   V.    WALLIS.  [CHAP.   Vi. 

received  by  a  wharfinger  directed  by  bim  to  receive  them.  But  tbe 
question  is,  whether  there  has  been  an  acceptance  to  satisfy  the  statute. 
There  are  various  authorities  to  show  that,  for  the  purpose  of  an  accept- 
ance within  the  statute,  the  vendee  must  have  had  the  opportunity  of 
exercising  his  judgment  with  respect  to  the  article  sent.  Morton  v. 
Tibbett,  15  Q.  B.  428,  has  been  cited  as  an  authority  to  the  contrary  ; 
but  in  reality  that  case  decides  no  more  than  this,  that  where  the  pur- 
chaser of  goods  takes  upon  himself  to  exercise  a  dominion  over  them, 
and  deals  with  them  in  a  manner  inconsistent  with  the  right  of  property 
being  in  the  vendor,  that  is  evidence  to  justify  the  jury  in  finding  that 
the  vendee  has  accepted  the  goods  and  actually  received  the  same.  The 
court  indeed  there  say  that  there  may  be  an  acceptance  and  receipt 
within  the  statute,  although  the  vendee  has  had  no  opportunity  of  exam- 
ining the  goods,  and  although  he  has  done  nothing  to  preclude  himself 
from  objecting  that  they  do  not  correspond  with  the  contract.  But  in 
my  opinion  an  acceptance  to  satisfy  the  statute  must  be  something  more 
than  a  mere  receipt ;  it  means  some  act  done  after  the  vendee  has  exer- 
cised or  had  the  means  of  exercising  his  right  of  rejection. 

Rule  discharged.1 


WILLIAM   PARKER  v.  HENRY   WALLIS   and   ABRAHAM 

WALLIS. 

In  the  Queen's  Bench,  May  5,  1855. 

[Reported  in  5  Ellis  <f-  Blackburn,  21.] 

Count  alleging  that  plaintiff  sold  to  defendants  turnip-seed  then 
growing,  to  be  harvested  and  thrashed  by  plaintiff  and  then  delivered 
to  defendants  as  they  should  direct ;  that  the  seed  was  harvested  and 
thrashed,  and  plaintiff  delivered  part  which  was  accepted  and  actually 
received  by  the  defendants.  General  averments  of  performance. 
Breaches  ;  that  defendants  would  not  accept  the  residue,  nor  pay  for 
the  part  received. 

Pleas  :  amongst  others,  that  plaintiff  did  not  sell  to  the  defendants, 
nor  did  they  buy  of  the  plaintiff  the  seed  ;  and  that  the  plaintiff  did  not 
deliver,  nor  did  the  defendants  accept  the  part.     Issues  thereon. 

On  the  trial  before  Wightman,  J.,  at  the  last  spring  assizes  for  Suf- 
folk, the  plaintiff  gave  evidence  by  which  it  appeared  that  the  plaint  ill 
was  a  farmer,  and  the  defendants  were  in  partnership  as  seed  and  corn 
merchants  at  Ipswich.  On  the  21st  June,  1854,  the  plaintiff  and  the 
defendants  being  at  Bury  market  verbally  made  a  contrnct  for  the  sale 
of  seed  of  the  value  exceeding  £10  to  the  effect  set  forth  in  the  count; 
and  the  defendants  named  the  railway  to  Ipswich  as  one  mode  by  which 

i  Pollock,  Ali>erson,  and  Platt,  BB.,  delivered  brief  concurring  opinions. 


SECT.  V.]  PARKER    V.    WALLIS.  801 

the  seed  might,  when  harvested,  be  sent  to  them  at  Ipswich.  Tn  July 
the  seed  was  harvested  and  thrashed;  and  on  the  21th  July  twenty 
sacks  of  the  Seed  were  sent  by  the  plaintiff  by  railway  to  the  defendants 
at  Ipswich.  On  Wednesday,  26th  July,  the  twenty  sacks  arrived  at 
Ipswich.  On  that  same  day  the  plaintiff  and  the  defendant  Abraham 
Wallis  were  both  at  Bury  market.  The  defendant  Abraham  Waliis  said 
to  the  plaintiff  that  a  messenger  had  just  come  up  from  Ipswich  from 
his  brother  Henry,  to  say  that  the  seed  sent  by  plaintiff  had  just  arrived 
and  was  out  of  condition.  The  plaintiff  said  that  the  seed  was  in  good 
condition,  and  so  Abraham  Wallis  would  find  when  he  examined  it. 
Abraham  Wallis  said  he  could  say  no  more,  as  he  had  not  seen  it  him- 
self. The  only  evidence  of  this  conversation  was  given  by  the  plaintiff; 
and  according  to  his  recollection  nothing  more  then  passed.  The  fol- 
lowing correspondence  was  given  in  evidence  :  — 

Defendants  to  plaintiff:  — 

Ipswich,  7  Mo.  28. 

Respected  Friend,  —  A  personal  inspection  of  the  twenty  sacks 
turnip-seed  fully  confirmed  what  we  said  on  Wednesday.  It  is  both 
hot  and  mouldy  ;  and  we  must  beg  to  decline  it  altogether.  It  now 
waits  your  instructions  for  removal. 

Plaintiff  to  defendants  :  — 

MlLDENHALL,    31st    July,    1854. 

The  twenty  combes  of  turnip-seed  was  in  good  condition  this  day 
week  when  delivered,  as  good  as  any  that  I  have  delivered  this  season, 
which  I  have  witness  to  prove,  and  I  duly  advised  you  of  it ;  and  as  to 
what  may  have  happened  to  it  since,  of  course  I  cannot  be  accountable 
for.  I  have  the  remaining  forty  combes  ready  for  delivery,  waiting 
your  order. 

Defendants  to  plaintiff  :  — 

Ipswich,  8  Mo.  1,  1854. 

As  you  have  failed  to  fulfil  your  contract,  we  shall  purchase  seed  else- 
where. The  twenty  sacks  which  you  authorized  us  to  receive  for  you, 
and  to  lay  out  thin  in  consequence  of  its  being  hot  and  mouldy,  we  have 
now  directed  to  be  returned  to  the  Eastern  Counties  Railway  Station  to 
wait  your  orders,  and  must  request  you  to  return  and  empty  sacks. 

Plaintiff's  attorney  to  defendants  (extract)  :  — 

Gentlemen,  —  I  am  instructed  by  Mr.  William  Parker  of  Mildenhall 

to  apply  to  you  for  payment  of  the  turnip  seed  you  purchased  of  him, 
twenty  sacks  of  which  have  been  delivered,  and  t lie  remainder  has  been 
for  some  time  past  waiting  your  directions  and  standing  at  your  expense. 
The  authority  you  alluded  to  in  your  letter  of  the  1st  instant  is  most 
positively  denied  by  my  client  ;  and  the  date  of  the  delivery  to  you,  and 
of  the  letters  passing  between  you  and  Mr.  Parker,  plainly  show  that 
such  an  authority  could  never  have  been  given,  and  certainly  never  was 
contemplated  by  my  client. 


802  PARKER  V.    WALLIS.  [CHAP.  VI. 

Defendants  to  plaintiff's  attorney  (extract)  :  — 

Ipswich,  8  Mo.  8,  1854. 

In  reply  to  thy  letter  we  beg  to  say  that,  as  Mr.  Parker's  memory 
seems  so  very  forgetful,  we  fortunately  are  able  to  remember  for  him  ;  and 
we  have  full  and  sufficient  witness  to  the  authority  upon  which  we  acted, 
and  to  which  allusion  is  made  in  our  letter  of  the  1st  instant,  in  our 
youn«  man  who  stood  by  and  heard  the  order  given  to  us  to  receive  it 
on  his  account  and  lay  it  out  thin  to  cool. 

The  rest  of  the  evidence  of  the  plaintiff  went  to  show  that  the  seed 
in  point  of  fact  was  good  when  it  went  to  the  railway  ;  that  the  condi- 
tion of  the  seed  can  easily  be  ascertained  without  spreading  it  out  thin  ; 
and  that  prices  had  fallen  very  much  between  the  21st  June  and  the 
26th  July. 

The  defendants  claimed  a  nonsuit  on  the  ground  that  there  was  no 
evidence  to  satisfy  the  Statute  of  Frauds.  The  learned  judge  directed 
a  nonsuit,  with  leave  to  move  to  enter  a  verdict  for  £140  if  there  was 
evidence  of  an  acceptance  and  actual  receipt  of  any  part  of  the  turnip- 
seed. 

D.  Power  and  H.  Mills  now  showed  cause. 

O'MaUey  and  Worlledge,  contra. 

Lord  Campbell,  C.  J.  I  do  not  think  we  should  be  justified  in  mak- 
ing the  rule  absolute  to  enter  a  verdict  for  the  plaintiff;  for  whether  the 
evidence  would  have  warranted  the  jury  in  finding  that  there  was  an 
acceptance  is  at  least  very  doubtful ;  but  at  the  same  time  I  cannot  say 
that  there  is  not  some  evidence  to  go  to  the  jury. 

Of  the  law  there  is  no  doubt.  To  make  an  acceptance,  it  is  not  neces- 
sary that  the  vendee  should  have  acted  so  as  to  preclude  himself  from 
afterwards  making  objection  to  the  quality  of  the  article  delivered  ;  but 
he  must  have  done  something  indicating  that  he  has  accepted  part  of 
the  goods  and  taken  to  them  as  owner.  This  may  be  indicated  by  his 
conduct,  as  when  he  does  any  act  which  would  be  justified  if  he  was  the 
owner  of  the  goods  and  not  otherwise.  In  such  a  case  the  vendee  doing 
that  act  is  supposed  to  have  accepted  the  goods  and  become  owner  of 
them.  Thus  detention  of  the  goods  for  a  long  and  unreasonable  time 
by  the  vendee  is  evidence  that  he  has  accepted  them  ;  but  in  the  present 
case  there  was  no  detention  of  that  kind  before  the  letter  of  the  28th  of 
July  ;  and  detention  after  that  letter,  stating  that  the  seed  was  rejected 
and  waited  the  plaintiff's  order  for  its  removal,  amounted  to  nothing. 
But  then  it  appears  by  the  defendants'  own  letters  that  they  had  spread 
the  seed  out  thin.  That  is  an  act  of  a  doubtful  character.  If  the  seed 
was,  as  the  defendants  assert,  hot  and  mouldy,  I  should  say  that  spread- 
ing it  out  thin  was  an  act  done  by  the  vendee,  not  as  an  act  of  owner- 
ship, but  for  the  benefit  of  the  vendor  ;  but  in  this  case  there  was 
evidence  that  the  seed  was  good.  Whether  it  was  an  act  of  acceptance 
depends  on  whether  it  was  an  act  done  by  the  defendants  as  owners  of 
the  goods,  or  an  act  done  for  the  benefit  of  the  article  by  the  disappointed 


SECT.   V.]  MARVIN    v.    WALLIS. 

vendee  acting  for  the  benefit  of  the  vendor.  On  the  evidence  it  is  left 
in  doubt  which  it  was;  and  I  think  that  was  a  question  for  the  jury.  I 
think,  therefore,  that  the  rule  should  be  moulded,  and  made  absolute  for 
a  new  trial. 

Ckomfton,  J.  The  question  is,  whether  there  is  any  evidence  that 
the  defendants  in  spreading  out  this  seed  thin  acted  as  owners  receiving 
it  under  the  parol  contract.  Of  the  fact  that  they  did  so  spread  it  out 
there  is  no  doubt;  but  it  is  an  act  explainable  on  three  suppositions: 
First,  they  may  have  spread  it  out  by  the  authority  of  the  vendor,  the 
plaintiff;  second,  they  may  have  done  it  for  the  benefit  of  the  seed,  a 
perishable  article  in  such  a  condition  as  to  render  the  step  proper  ;  third, 
they  may  have  done  the  act  as  owners,  spreading  it  out  for  their  own 
convenience  ;  for  it  is  not  denied  that  it  was  a  more  extensive  act  than 
was  necessary  for  mere  examination  to  see  if  it  was  good.  Now  there 
was  contradictory  evidence  as  to  whether  the  plaintiff  had  authorized 
it;  so  the  plaintiff  was  not  bound  by  that  first  explanation,  unless  the 
jury  found  that  there  was  authority.  Then  there  was  evidence  that  the 
seed  was  in  such  a  condition  that  the  defendants  could  not  have  done  the 
act  for  its  benefit;  so  that  the  plaintiff  was  not  bound  by  that  explana- 
tion. If  these  two  were  negatived  by  the  jury,  there  remained  the  third 
explanation  only  ;  so  that  I  cannot  say  that  there  is  no  evidence  of  an 
acceptance;  but  I  think  that  the  court  do  right  to  mould  the  rule,  as 
the  evidence  is  not  sufficiently  satisfactory  to  justify  us  in  entering  a 
verdict.  Rule  absolute  for  a  new  trial1 


MARVIN   v.   WALLIS. 

In  tiie  Queen's  Bench,  June  5,  1856. 

[Reported  in  6  Ellis  <j-  Blackburn,  720] 

Action  for  money  payable  by  defendant  to  plaintiff  for  horses, 
mares,  and  geldings,  bargained  and  sold,  and  sold  and  delivered  by 
plaintiff  to  defendant ;  and  on  accounts  stated.  Plea,  never  indebted, 
Issue  thereon. 

On  the  trial  before  Lord  Campbell,  C.  J.,  at  the  last  Warwickshire 
assizes,  it  appeared  that  the  action  was  brought  to  recover  the  price  of 
a  horse.  It  was  agreed  that  there  had  been  a  complete  verbal  bargain 
for  the  sale  of  the  horse  by  the  plaintiff  to  the  defendant  for  a  price 
above  £10,  and  that  about  a  fortnight  afterwards  the  plaintiff  sent  the 
horse  to  the  defendant,  who  refused  to  take  or  pay  for  him  :  alleging 
that  the  horse  had  been  ill-used  in  the  interval.  The  plaintiffs  evi- 
dence was  that  the  bargain  was  complete  for  immediate  delivery  ;  that 
after  it  was  complete  the  plaintiff  asked  the  defendant  to  lend,  him  the 

1  Wiohtmas  and  Erle,  JJ.,  delivered  concurring  opinions. 


804  MARVIN   V.   WALLIS.  [cHAP.  VI. 

horse  for  a  few  weeks  till  he  got  another,  to  which  the  defendant  agreed 
it'  the  plaintiff  would  take  care  of  it;  and  that  in  consequence  the 
plaintiff  kept  the  horse  from  that  time,  not  as  vendor  but  as  borrower 
of  the  horse.  There  was  no  part  pa3'ment,  nor  any  memorandum  in 
writing.  It  was  objected  that  there  was  no  evidence  to  go  to  the  jury 
of  any  acceptance  and  actual  receipt  of  the  horse.  The  Lord  Chief 
Justice  refused  to  stop  the  case.  The  defendant  then  gave  evidence, 
according  to  which  the  original  verbal  bargain  was  that  the  horse 
should  not  be  delivered  for  a  month  ;  and  the  plaintiff  retained  posses- 
sion, not  as  a  borrower,  but  in  virtue  of  the  original  bargain.  The 
Lord  Chief  Justice  left  the  question  to  the  jury,  whether  the  verbal 
contract  for  the  sale  of  the  horse  was  complete  before  there  was  any 
agreement  about  the  horse  being  retained  by  the  plaintiff,  and  the 
horse  was  lent  to  the  plaintiff  by  the  defendant  as  his  owner;  or 
whether  the  retainer  of  the  horse  was  part  of  the  bargain.  The  jury 
found  that  the  contract  was  complete  before  the  permission  to  keep  the 
horse  was  given  to  the  plaintiff,  and  that  the  horse  was  lent  by  the 
defendant  as  his  owner. 

The  Lord  Chief  Justice  then  directed  a  verdict  for  the  plaintiff,  with 
leave  to  move  as  after  mentioned. 

Hayes,  Serjt.,  and  Blttleston  showed  cause. 

Mellor  and  Field,  in  support  of  the  rule. 

Coleridge,  J.  I  am  of  opinion  that  we  ought  to  discharge  this  rule. 
The  question  is,  whether  on  the  facts  found  by  the  jury  the  Statute  of 
Frauds  is  satisfied,  and  whether  there  is  any  evidence  for  that  finding. 
The  Statute  of  Frauds  requires  an  actual  receipt,  which  implies  delivery 
and  acceptance.  It  is  admitted  that  if  there  be  an  actual  visible  pos- 
session in  the  vendee  for  a  single  moment,  that  is  enough  :  the  question 
cannot  turn  on  time.  It  must  also  be  admitted  that  it  is  enough  if  a 
third  party  has  such  possession  for  the  vendee.  It  is  said  that  nothing 
short  of  that  will  do ;  and  as  I  understand  Mr.  Field  he  contends 
that  there  must  be  some  positive  act,  and  that  without  that,  words 
alone  will  not  satisfy  the  statute.  Here  it  is  found  that  the  bargain 
was  complete,  and  that  after  that  the  vendor  asked  the  vendee  to  lend 
him  the  horse  for  a  specific  purpose,  to  which  the  vendee  assented. 
The  vendor  retains  the  apparent  possession,  but  holds  for  the  vendee, 
unless  there  be  a  distinction  between  this  state  of  things  and  what  is 
admitted  to  be  sufficient  to  satisfy  the  Statute  of  Frauds.  Try  then 
how  that  is.  Must  there  be  an  actual  transfer?  The  case  of  Elmore 
v.  Stone,  1  Taunt.  458,  furnishes  an  answer  to  that  question  ;  for  there, 
there  was  a  removal  of  the  horse  from  one  stable  of  the  vendor  to  an- 
other stable  of  the  vendor;  in  the  first  of  these  the  vendor  kept  his 
own  horses,  in  the  other  the  horses  belonging  to  other  people:  so  that 
the  horse  still  continued  in  his  apparent  possession,  but  the  character 
of  the  possession  was  altered.  So  here  there  is  the  samo  apparent 
possession  throughout,  but  the  evidence  shows  that  its  character  was 
changed.     Much  lias  been  said  as  to  whether  the  lien  here  was  retained 


SECT.  V.]  NICHOLSON    V.    BOWER. 

or  not;  but  it  seems  to  me  that  this  is  not  material  to  the  argument, 
and  that  the  legal  result  arises  from  the  preceding  part  of  the  transac- 
tion.   Had  the  plaintiff  retained  the  horse  in  the  character  of  an  unpaid 

vendor,  there  would  not  have  been  a  delivery;  but  the  verdicl  nega- 
tives that  supposition.  Halt  discharged.* 


NICHOLSON  and  Another,  Assignees  of  William  Pavitt,  Daniel 
Pavitt,  and  George  Pavitt,  Bankrupts,  v.  BOWER. 

In  the  Queen's  Bench,  November  18,  1858. 
[Reported  in  1  Ellis  ,y  Ellis,  172.] 

Feigned  issue  to  try  whether  t;  certain  wheat  which  was  on  the  11th 
day  of  May,  1857,  lying  in  the  warehouse  of  the  Eastern  Counties 
Railway  Company  at  Brick  Lane  station,  and  the  delivery  of  whieh  to 
the  said  bankrupts  or  their  said  assignees  was  afterwards  stopped  by 
the  defendant,  was  at  the  time  of  such  stoppage  the  property  of  the 
said  bankrupts  or  their  said  assignees  as  against  the  defendant." 

On  the  trial  before  Erie,  J.,  at  the  London  sittings  after  last  Trinity 
term,  it  appeared  that  on  4th  May,  1858,  the  defendant,  who  was  a 
corn  merchaut  at  Peterborough,  sold  at  London  to  Pavitt  &  Co.,  who 
were  millers  carrying  on  business  in  London,  HI  'quarters  of  wheat 
to  be  delivered  in  London.  The  defendant  sent  up  the  wheat  from 
Peterborough  in  two  pareels,  on  the  7th  and  8th  of  May,  by  the 
Eastern  Counties  Railway  to  their  station  at  Brick  Lane,  consigned 
to  Pavitt  &  Co.,  and  wrote  to  them  giving  them  notice  of  its  having 
been  so  sent,  and  requesting  their  '-immediate  instructions  for  re- 
moval." The  wheat  was  warehoused  by  the  company  and  entered 
by  them  in  their  books  as  follows:  "8th  May,  Peterborough,  from  S. 
Bower,  for  Messrs.  Pavitt  &  Co.,  Brick  Lane  station,  carriage  paid."' 
The  usual  course  of  business  of  the  company  in  warehousing  grain  is 
to  keep  it,  if  required,  for  fourteen  days  free  of  charge,  at  the  end  of 
which  time  it  is  to  be  taken  away  by  the  consignee  or  delivered  by  the 
company  to  him  at  his  expense.  It  is  also  usual  in  the  corn  trade, 
when  corn  is  warehoused  for  the  consignee,  before  finally  accepting  it 
to  take  a  sample  from  the  bulk  as  delivered  at  the  warehouse,  and 
compare  it  with  the  sample  by  which  it  was  purchased.  On  Friday 
the  8th  May,  Pavitt  &  Co.  sent  their  carman  to  the  station  for  a  bulk 
sample  of  the  wheat,  which  he  brought  back.  On  the  morning  o( 
Saturday  the  9th  May,  George  Pavitt,  one  of  the  partners,  examined 
it,  and  said,  "  Do  not  work  it  at  present ;  "  "to  work"  being  explained 
at  the  trial  to  mean  to  cart  it  home.  On  the  same  day  Pavitt  &  C<>. 
being  in  embarrassed  circumstances  decided   upon  calling  a   meeting 

1  Erle  and  Cuompton,  JJ.,  and  Lord  Campbell,  C.J.,  delivered  concurring 
opinions. 


800  CUSACK   V.    ROBINSON.  [CHAP.  VI. 

of  their  creditors  on  Monday,  May  11th,  and  gave  immediate  notice  to 
the  creditors.  The  defendant  in  consequence  came  to  Pavitt  &  Co.  on 
that  day  and  asked  them  for  an  order  for  the  wheat,  which  they  were 
about  to  give  when  some  of  the  other  creditors  present  interfered. 
The  defendant  afterwards  sent  to  the  railway  station  and  stopped  the 
wheat,  directing  the  company  to  hold  it  to  his  order,  which  they 
accordingly  did.  The  defendant's  witnesses  stated,  which  George 
Pavitt  denied,  that  George  Pavitt  had  told  the  defendant  on  the 
Monday,  11th  May,  that  he  had  refused  the  wheat  on  9th  May  because 
it  was'  not  equal  to  sample.  It  was  admitted  that  the  wheat  was 
actually  equal  to  sample. 

The  jury,  in  answer  to  a  question  of  the  learned  judge,  found  that 
George  Pavitt  had  told  the  defendant  that  he  refused  the  wheat 
because  it  was  not  according  to  sample  ;  but  that  it  was  not  really 
refused  by  him  on  that  ground.  A  verdict  was  entered  for  the  plain- 
tiffs, with  leave  to  move  to  enter  it  for  the  defendant,  either  if  there 
had  been  no  acceptance  of  the  wheat  by  the  bankrupts  within  the 
Statute  of  Frauds,  or  if  the  transitus  of  the  wheat  was  not  at  an  end 
when  it  was  stopped  by  the  defendant. 

Bovill  now  showed  cause. 

Skinner  and  Field,  contra. 

Erle,  J.  I  think  that  the  plaintiffs  have  failed  to  show  an  accept- 
ance of  part  of  the  goods  by  the  vendee  sufficient  to  satisfy  the  Stat- 
ute of  Frauds.  When  the  goods  arrived  at  the  warehouse  ready  to  be 
delivered  to  the  vendee,  he  had  power  to  inspect  a  bulk  sample  before 
accepting.  He  does  inspect  a  sample,  and  apparently  found  that  it 
corresponded;  but  at  that  very  instant  he  says,  "Do  not  work  it  at 
present,"  meaning,  as  I  think,  "I  shall  hold  my  hands  in  respect  of 
this  transaction  ;  because,  unless  I  succeed  in  making  arrangements 
with  my  creditors,  this  corn  ought  to  go  back  to  the  consignor."  On 
the  next  working  day  he  actually  does  that  which  is  equivalent  to  giv- 
ing notice  to  the  consignor  to  take  it  back.  That  notice  he  had  a  right 
to  give,  if  he  had  not  accepted  ;  and  I  think  that  upon  the  evidence  he 
had  purposely  abstained  from  accepting.  Rule  absolute.1 


CUSACK   and  Others  v.   ROBINSON. 

In  the  Queen's  Bench,  May  25,  1861. 

[Reported  in  1  Best  Sf  Smith,  209.] 

Declaration   for  goods   sold  and   delivered,   and   goods  bargained 
and  sold.     Plea,  never  indebted.     At  the  trial  before  Blackburn,  J.,  at 

1  Loed  Campbell,  C.J.,  and  Wightmak  and  Hill,  JJ.,  delivered  concurring  opinions. 


SECT.  V.]  CUSACK   V.    ROBINSON.  807 

the  Liverpool  winter  assizes  in  18G0,  it  appeared  that  the  defendant, 
who  was  a  London  merchant,  on  the  24th  October,  1860,  at  Liverpool 
called  on  the  plaintiffs,  who  are  importers  of  Canadian  produce,  and 
said  he  wanted  to  buy  from  l.">0  to  200  firkins  Canadian  butter.  He 
then  went  with  one  of  the  plaintiffs  to  their  cellar,  where  he  was  shown 
a  lot  of  15G  firkins  of  butter,  ';  ex  Bohemian,"  belonging  to  the  plaintiffs, 
which  he  then  had  the  opportunity  of  inspecting,  and  in  fact  he  did 
open  and  inspect  six  of  the  firkins  in  that  lot.  After  that  examination, 
they  went  to  another  cellar  to  see  other  butter,  which  however  did 
not  suit  the  defendant.  At  a  later  period  of  the  same  day  the  plain- 
tills  and  the  defendant  made  a  verbal  agreement  by  which  the  defendant 
agreed  to  buy  that  specific  lot  of  156  firkins  at  77s.  per  cwt.  When 
the  price  had  been  agreed  on,  the  defendant  took  a  card  on  which  his 
name  and  address  in  London  were  written,  "  Edmund  Robinson,  1 
Wellington  Street,  London  Bridge,  London,"  and  wrote  on  it  "  156 
firkins  butter  to  be  delivered  at  Fenning's  Wharf,  Toolev  Street."  He 
gave  this  to  the  plaintiffs,  and  at  the  same  time  said  that  his  agents 
Messrs.  Clibborn,  at  Liverpool,  would  give  directions  how  the  goods 
were  to  be  forwarded  to  Fenning's  Wharf.  The  plaintiffs  by  Clib- 
born's  directions  delivered  the  butter  to  Pickford's  carts  to  be  for- 
warded to  the  defendant  at  Fenning's  Wharf.  The  plaintiffs  sent  an 
invoice  dated  the  25th  October,  1860,  to  the  address  on  the  defendant's 
card.  They  received  in  answer  a  letter  purporting  to  come  from  a 
clerk  in  the  defendant's  office,  acknowledging  the  receipt  of  the  invoice, 
and  stating  that  on  the  defendant's  return  he  would  no  doubt  attend 
to  it.  There  was  no  evidence  that  the  writer  of  this  letter  had  any 
authority  to  sign  a  memorandum  of  a  contract.  On  the  27th  October 
the  plaintiffs  in  Liverpool  received  a  telegram  from  the  defendant  in 
London,  in  effect  asserting  that  the  butters  had  been  sold  by  the  plain- 
tiffs subject  to  a'  warrant}'  that  the}T  were  equal  to  a  sample,  but  that 
they  were  not  equal  to  sample,  and  therefore  would  be  returned.  The 
plaintiffs  replied  b}-  telegram  that  there  was  no  such  warrant}',  and 
they  must  be  kept.  A  clerk  at  Fenning's  Wharf  proved  that  Messrs. 
Fenning  stored  goods  for  their  customers,  and  had  a  butter  warehouse  ; 
that  the  defendant  had  used  the  warehouse  for  fifteen  years,  and  was 
in  the  habit  of  keeping  his  butters  there  till  he  sold  them.  On  the 
26th  October  Pickford  &  Co.  had  delivered  a  part  of  the  156  firkins  in 
question  at  the  warehouse,  and  delivered  the  residue  on  the  morning  of 
the  27th  October.  The  witness  could  not  say  whether  any  one  came 
to  inspect  them  or  not,  but  he  proved  that  they  were  delivered  up  by 
Fenning  to  Pickford  &  Co.  under  a  delivery  order  from  the  defendant 
dated  27th  October.  The  defendant's  counsel  admitted  that  it  must 
be  taken  that  the  sale  was  not  subject  to  any  warranty  ;  but  objected 
that  the  price  of  the  goods  exceeded  £10,  and  that  there  was  nothing 
proved  to  satisfy  the  requisitions  of  the  Statute  of  Frauds.  The  verdict 
was  entered  for  the  plaintiffs  for  £420  10s.  Id.,  with  leave  to  t lie  de- 
fendant to  move  to  enter  a  nonsuit,  if  there  was  no  evidence  proper  to 


808  CUSACK    V,    KOBINSON.  [CHAP.  VL 

be  left  to  the  jury  either  of  a  memorandum  of  the  contract  or  of  an 
acceptance  and  actual  receipt  of  the  goods. 

Mellish  and  Quai/i  showed  cause. 

Milltoardj  in  support  of  the  rule.  Cur.  adv.  vult. 

The  judgment  of  the  court  was  now  delivered  by 

Blackburn,  J.  (After  fully  stating  the  facts  his  Lordship  proceeded.) 
It  was  not  contended  that  there  was  any  sufficient  memorandum  in 
writing  in  the  present  case  ;  but  it  was  contended  that  there  was  suffi- 
cient evidence  that  the  defendant  had  accepted  the  goods  sold  and 
actually  received  the  same ;  and  on  consideration  we  are  of  that 
opinion. 

The  words  of  the  statute  are  express  that  there  must  be  an  accept- 
ance of  the  goods  or  part  of  them,  as  well  as  an  actual  receipt ;  and 
the  authorities  are  veiy  numerous  to  show  that  both  these  requisites 
must  exist,  or  else  the  statute  is  not  satisfied.  In  the  recent  case  of 
Nicholson  v.  Bower,  1  E.  &  E.  172,  which  was  cited  for  the  defendant, 
141  quarters  of  wheat  were  sent  by  a  railway,  addressed  to  the  ven- 
dees. They  arrived  at  their  destination,  and  were  there  warehoused 
b}'  the  railway  company  under  circumstances  that  might  have  been 
held  to  put  an  end  to  the  unpaid  vendor's  rights.  But  the  contract 
was  not  originally  a  sale  of  specific  wheat,  and  the  vendees  had  never 
agreed  to  take  those  particular  quarters  of  wheat :  on  the  contrary  it 
was  shown  to  be  usual,  before  accepting  wheat  thus  warehoused,  to 
compare  a  sample  of  the  wheat  with  the  sample  by  which  it  was  sold  ; 
and  it  appeared  that  the  vendees,  knowing  that  they  were  in  embar- 
rassed circumstances,  purposely  abstained  from  accepting  the  goods  ; 
and  each  of  the  judges  mentions  that  fact  as  the  ground  of  their  de- 
cision. In  Meredith  v.  Meigh,  2  E.  &  B.  364,  the  goods,  which  were 
not  specified  in  the  original  contract,  had  been  selected  by  the  vendor 
and  put  on  board  ship  b}'  the  directions  of  the  vendee,  so  that  they 
wire  in  the  hands  of  a  carrier  to  convey  them  from  the  vendor  to  the 
vendee.  It  was  there  held,  in  conformit}*  with  Hanson  v.  Armitage, 
5  B.  &  Aid.  557,  that  the  carrier,  though  named  by  the  vendee,  had 
no  authorit}7  to  accept  the  goods.  And  in  this  we  quite  agree  ;  for 
though  the  selection  of  the  goods  by  the  vendor,  and  putting  them  in 
transit,  would  but  for  the  statute  have  been  a  sufficient  delivery  to  vest 
the  property  in  the  vendee,  it  could  not  be  said  that  the  selection  by 
the  vendor,  or  the  receipt  by  the  carrier,  was  an  acceptance  of  those 
particular  goods  by  the  vendee. 

In  Baldey  r.  Parker,  2  B.  &  C.  37,  which  was  much  relied  on  by  Mr. 
Millward  in  arguing  in  support  of  this  rule,  the  ground  of  the  decision 
was  that  pointed  out  by  Holrovd,  J.,  who  says  (p.  44)  :  "  Upon  a  sale 
of  specific  goods  for  a  specific  price,  by  parting  with  the  possession  the 
seller  parts  with  his  lien.  The  statute  contemplates  such  a  parting 
with  the  possession ;  and  therefore  as  long  as  the  seller  preserves  his 
control  over  the  goods  so  as  to  retain  his  lien,  he  prevents  the  vendee 


SECT.  V.J  CUSACK   V.    KOBINSON.  809 

from  accepting  and  receiving  them  as  bis  own  within  the  meaning  of 
the  statute."  The  principle  here  laid  down  is,  that  there  cannot  be  an 
actual  receipt  by  the  vendee  so  long  as  the  goods  continue  in  the  pos- 
session of  the  seller  as  unpaid  vendor  so  as  to  preserve  his  lien;  and 
it  has  been  repeatedly  recognized.  But  though  the  goods  remain  in 
the  personal  possession  of  the  vendor,  yet  if  it  is  agreed  between  the 
vendor  and  the  vendee  that  the  possession  shall  thenceforth  be  kept, 
not  as  vendor,  but  as  bailee  for  the  purchaser,  the  right  of  lien  is  gone, 
and  then  there  is  a  sullieient  receipt  to  satisfy  the  statute.  Marvin  V. 
Wallis,  G  E.  &  15.  726,  Beaumont  >•.  Brengeri,  5  C.  B.  301.  In  both 
of  these  cases  the  specilic  chattel  sold  was  ascertained,  and  there  ap- 
pear to  have  been  acts  indicating  acceptance  subsequent  to  the  agree- 
ment which  changed  the  nature  of  the  possession. 

In  the  present  case  there  was  ample  evidence  that  the  goods  when 
placed  in  Fenning's  Wharf  were  put  under  the  control  of  the  defend- 
ant to  await  his  further  directions,  so  as  to  put  an  end  to  any  right 
of  the  plaintiffs  as  unpaid  vendors,  as  much  as  the  change  in  the  nature 
of  the  possession  did  in  the  cases  cited.  There  was  also  sufficient  evi- 
dence that  the  defendant  had  at  Liverpool  selected  tuese  specilic  156 
firkins  of  butter  as  those  which  he  then  agreed  to  take  as  his  property 
as  the  goods  sold,  and  that  he  directed  those  specific  firkins  to  be  sent 
to  London.  This  was  certainly  evidence  of  an  acceptance  ;  and  the 
only  remaining  question  is,  whether  it  is  necessary  that  the  acceptance 
should  follow  or  be  contemporaneous  with  the  receipt,  or  whether  an 
acceptance  before  the  receipt  is  not  sufficient.  In  Saunders  v.  Topp, 
4  Exch.  390,  which  is  the  case  in  which  the  facts  approach  nearest  to 
the  present  case,  the  defendant  had,  according  to  the  finding  of  the 
jury,  agreed  to  buy  from  the  plaintiff  forty-five  couple  of  sheep,  which 
the  defendant,  the  purchaser,  had  himself  selected,  and  the  plaintiff 
had  by  his  directions  put  them  in  the  defendant's  field.  Had  the  case 
stopped  there,  it  would  have  been  identical  with  the  present.  But 
there  was  in  addition  some  evidence  that  the  defendant,  after  seeing 
them  in  the  field,  counted  them,  and  said  it  was  all  right ;  and  as  this 
was  some  evidence  of  an  acceptance  after  the  receipt,  it  became  un- 
necessary to  decide  whether  the  acceptance  under  the  statute  must 
follow  the  delivery.  Parke,  B.,  from  the  report  of  his  observations 
during  the  argument,  seems  to  have  attached  much  importance  to  the 
selection  of  particular  sheep  by  .the  defendant;  but  in  his  judgment  he 
abstains  from  deciding  on  that  ground,  though  certainly  not  expressing 
any  opinion  that  the  acceptance  must  be  subsequent  to  the  delivery. 
The  other  three  Barons  —  Alderson,  Rolfe,  and  Piatt  —  express  an 
inclination  of  opinion  that  it  is  necessary  under  the  statute  that  the 
acceptance  should  be  subsequent  to  or  contemporaneous  with  the  re- 
ceipt; but  they  expressly  abstain  from  deciding  on  that  ground.  In 
the  elaborate  judgment  of  Lord  Campbell  in  Morton  v.  Tibbett.  15  Q- 
B.  428,  in  which  the  nature  of  an  acceptance  and  actual  receipt  sulli- 
eient to  satisfy  the  statute  is  fully  expounded,  he  says  (p.  434) :  -  The 


810  KIBBLE    V.    GOUGH.  [CHAP.  VI. 

acceptance  is  to  be  something  which  is  to  precede  or  at  any  rate  to  be 
contemporaneous  with  the  actual  receipt  of  the  goods,  and  is  not  to  be 
a  subsequent  act  after  the  goods  have  been  actually  received,  weighed, 
measured,  or  examined.  The  intention  of  the  Legislature  seems  to 
have  been  that  the  contract  should  not  be  good  unless  partially  exe- 
cuted ;  and  it  is  partially  executed  if,  after  the  vendee  has  finally 
agreed  on  the  specific  articles  which  he  is  to  take  under  the  contract, 
the  vendor  by  the  vendee's  directions  parts  with  the  possession,  and 
puts  them  under  the  control  of  the  vendee,  so  as  to  put  a  complete  end 
to  all  the  lights  of  the  unpaid  vendor  as  such.  We  think  therefore 
that  there  is  nothing  in  the  nature  of  the  enactment  to  imply  an  inten- 
tion, which  the  Legislature  has  certainly  not  in  terms  expressed,  that 
an  acceptance  prior  to  the  receipt  will  not  suffice.  There  is  no  decision 
putting  this  construction  on  the  statute,  and  we  do  not  think  we  ought 
so  to  construe  it. 

We  are  therefore  of  opinion  that  there  was  evidence  in  this  case  to 
satisfy  the  statute,  and  that  the  rule  must  be  discharged. 

Rule  discharged. 


KIBBLE  v.  GOUGH. 

In  the  Common  Pleas  Division,  Court  of  Appeal,  February  14, 

15,  1878. 

[Reported  in  38  Law  Times  Reports,  204.] 

Appeal  from  a  decision  of  the  Common  Pleas  Division.  Defendant, 
a  maltster,  agreed  to  purchase  of  the  plaintiff,  a  farmer,  a  quantity  of 
barley,  a  sample  of  which  was  produced,  but  which  was  not  dressed,  at 
35s.  a  quarter,  on  condition  that  it  should  be  well  dressed.  The  plain- 
tiff promised  that  it  should  be  dressed  as  well  as  machine  could  do  it. 
A  few  days  afterwards  the  plaintiff  sent  to  the  defendant  for  some  sacks 
in  which  to  send  the  barle}',  and  a  quantity  were  sent  to  him  in  the  ab- 
sence of  the  defendant  by  the  defendant's  foreman.  On  the  same  day 
the  plaintiff  sent  in  the  first  instalment  of  barley,  13  qrs.,  which  were 
received  by  the  defendant's  foreman,  who  examined  the  barley,  and 
who  returned  a  receipt  with  the  words  "not  equal  to  sample." 

The  defendant  returned  home  late  in  the  evening  and  was  informed 
of  the  delivery  of  the  barley,  and  on  the  following  morning  inspected 
the  barley  and  wrote  to  the  plaintiff  in  the  following  terms  :  "  I  must 
refuse  the  barley,  and  do  not  send  any  more.  It  is  full  of  grown 
corns  and  very  spiky,  and  a  lot  of  thin,  and  is  not  dressed  as  well  as 
machine  can  do  it." 

The  plaintiff,  however,  sent  a  second  instalment,  and  also  a  third, 
which  were  also  received,  in  the  absence  of  the  defendant,  by  his  fore- 
man, who  returned  a  receipt  for  each  with   the  words  "  not  dressed 


SECT.  V.]  KIBBLE   V.   GOUGH.  811 

well,"  for  the  second  instalment,  and  "  not  equal  to  sample,"  for  the 
third. 

The  defendant  wrote  to  the-  plaintiff  and  asked  him  to  take  back  the 
barley,  but  the  plaintiff  refused  to  do  so. 

The  defendant  refused  to  pay  for  the  barley,  and  wrote  to  the  plain- 
tiff that  it  was  standing  in  the  defendant's  warehouse,  at  the  plaintiff's 
risk,  and  subject  to  hire  for  warehousing,  etc. 

The  plaintiff  brought  an  action  against  the  defendant  for  goods  sold 
and  delivered,  and  at  the  trial  at  the  Aylesbury  Summer  Assizes,  1*77, 
the  judge,  Pollock,  B.,  left  the  following  questions  to  the  jury  :  — 

Was  there  a  contract?  Was  there  acceptance  by  the  defendant  of 
part  of  the  barley?  and  was  the  barley  equal  to  sample  and  properly 
dressed ? 

The  jury  found  in  the  affirmative  for  the  plaintiff. 

On  Nov.  (I  the  Common  Pleas  Division  (Lord  Coleridge,  C.  J.,  and 
Denman,  J.)  granted  a  rule  nisi  for  a  new  trial  on  the  grounds  (1)  of 
misdirection  by  the  learned  judge  in  holding  that  there  was  evidence  of 
acceptance  of  the  barley  by  the  defendant  for  the  jury,  and  in  leaving 
to  the  jury  the  question  whether  the  barley  delivered  to  the  defendant 
was  equal  to  sample  and  dressed  according  to  contract ;  (2)  That  the 
verdict  was  against  the  weight  of  evidence  on  the  questions  left  to  the 
JU1T- 

On  motion  before  Grove  and  Lindley,  JJ.,  to  make  the  rule  absolute, 
the  Court  refused,  and  the  defendant  appealed  against  this  decision. 

3Iellor,  Q.  C.  (with  him  Hensman),  for  defendant. 

Z,awrence,  Q.  C.  (with  him  Graham),  for  the  plaintiff. 

Bkamwell,  L.  J.  1  am  of  opinion  that  the  judgment  of  the  court  be- 
low must  be  affirmed.  The  first  question  is  on  the  Statute  of  Frauds, 
was  there  part  delivery,  and  did  the  defendant  actually  receive  and 
accept  part  of  these  goods?  I  do  not  like  to  lay  down  a  general  rule ; 
but  this  was  undoubtedly  a  sale  of  an  ascertained  quantity  of  goods. 
The  defendant  agreed  to  purchase  all  the  plaintiff's  year's  growth  of 
barley,  and  it  was  therefore  a  sale  of  specific  goods,  onlv  there  was  this 
proviso,  that  the  barley  should  be  dressed  in  a  particular  way ;  but  for 
that  stipulation  it  would  certainty  have  passed  at  once.  There  was 
here  no  contract  in  writing.  There  is  no  doubt  about  the  deliver}'  of 
the  first  thirteen  quarters;  was  there  an  acceptance  of  them?  I  will 
not  say  that  the  decision  in  Morton  v.  Tibbett  (ubi  s«p.)  was  wrong ; 
on  the  contrary,  I  think  it  was  right.  A  man  may  accept  goods  with- 
out losing  his  right  of  objection  to  them  ;  there  must  be  such  an  accept- 
ance to  satisfy  the  statute  as  amounts  to  a  recognition  of  the  contract 
between  the  parties  ;  and  I  can  quite  understand  that  there  may  be  a 
delivery  without  an  acceptance  by  the  vendee,  and  without  a  recognition 
on  his  part  that  he  has  bought  the  goods.  But  in  this  case  the  goods 
had  been  brought  to  the  defendant's  warehouse,  and  were  received,  not 
by  the  defendant  himself,  but  by  a  person  in  whom,  as  the  evidence 
showed,  he  put  trust  and  confidence,  and  this  person  compared  the  barley 


812  KIBBLE   V.    GOUGH.  [CHAP.  VI. 

with  the  sample  and  took  it  in.  There  is  no  doubt  whatever  that  he 
received  it.  .Suppose  that  the  defendant  himself*  had  been  present,  the 
question  would  be  just  the  same,  and  it  can  make  no  difference  that  his 
manager  received  the  goods.  It  is  to  be  remembered  that  these  were 
specific  goods.  I  am  of  opinion  that  there  is  sufficient  evidence  of  ac- 
ceptance. The  defendant  might  have  complained  just  as  though  there 
had  been  a  contract  in  writing,  if  the  goods  were  not  up  to  sample. 
There  ma}'  be  defects  in  goods  which  are  not  ascertainable  on  inspec- 
tion, or  which  require  an  elaborate  inspection,  or  which  require  the 
goods  to  be  used  before  the  defects  can  be  discovered,  so  as  not  to  pre- 
clude sufficient  evidence  to  take  the  case  out  of  the  statute.  Mr.  Mellor 
says  that  an  action  for  goods  sold  and  delivered  will  not  lie  here,  be- 
cause the  property  did  not  pass  by  the  sale,  for  there  was  something 
remaining  to  be  done,  —  the  wheat  was  to  be  dressed.  Now,  there  are 
cases  which  show  that  where  anything  remains  to  be  done  to  ascertained 
property  the  property  does  not  pass,  but  as  soon  as  it  has  been  done 
then  it  has  passed.  Suppose  a  man  sees  a  watch  in  a  shop,  and  says  to 
the  shopkeeper,  '•  If  you  clean  this  watch,  I  will  buy  it  of  you  for  £8." 
Whose  watch  is  it  when  it  is  cleaned?  I  say  that,  in  such  a  case,  the 
money  must  be  paid  to  the  seller,  or,  if  the  vendee  refuses,  the  seller 
can  maintain  an  action  for  goods  bargained  and  sold.  Here  no  further 
delivery  could  be  made.  The  second  and  third  parcels  have  also  passed 
to  the  defendant ;  and  therefore  the  action  for  goods  sold  and  delivered 
is  good,  and  this  judgment  must  be  affirmed. 

Brett,  L.  J.  In  cases  where  a  contract  is  made  by  inspection  of 
sample  without  the  bulk  being  produced,  the  sale  is  a  sale  according  to 
sample ;  but  it  is  different  when  an  inspection  of  the  bulk  is  given  as 
well  as  of  the  sample,  —  then  it  is  a  sale  of  the  bulk,  and  there  can  be 
no  return  of  the  goods;  and,  when  a  man  undertakes  to  do  something 
to  the  goods  he  is  selling,  then  that  becomes  a  part  of  the  contract. 
In  this  case  the  goods  were  sold  as  equal  to  the  sample,  and  there  was 
a  power  to  refuse  ;  and  there  was  also  an  undertaking  on  the  part  of 
the  vendor  to  dress  the  barley.  The  purchaser  had  therefore  a  right  to 
see  if  the  barley  was  equal  to  the  sample  and  if  it  was  properly  dressed. 
The  first  lot  was  sent,  and  the  foreman  of  the  defendant  was  present 
when  it  was  sent,  and  did  take  the  delivery  of  it,  and  actually  received 
it  as  goods  sent  under  the  contract.  The  defence  here  seems  to  me  the 
same  as  if  the  master  had  been  there  at  the  time  and  had  said,  "  I  will 
reserve  my  right  of  inspection  until  to-morrow."  The  question  for  us 
here  is,  Is  such  an  acceptance  sufficient  to  make  the  contract  binding 
under  the  Statute  of  Frauds?  There  must  be  an  acceptance  and  an 
actual  receipt ;  no  absolute  acceptance,  but  an  acceptance  which  could 
not  have  been  made  except  on  admission  of  the  contract  and  the  goods 
sent  under  it.  I  am  of  opinion  that  there  was  a  sufficient  acceptance 
under  the  Statute  of  Frauds,  although  there  is  a  power  of  rejection. 
That  seems  to  me  to  be  the  decision  in.  Morton  v.  Tibbett,  supra, 
and  in  Cusack  v.  Robinson,  4  L.  T.  Rep.  n.  s.  50G,  30  L.  J.  2G1  Q,  li., 


SECT.  V.]  PAGE   V.    MORGAN.  813 

1  B.  &  S.  200,  Blackburn,  J.,  cites  Morton  v.  Tibbett,  supra,  with 
approbation.  But  the  most  remarkable  approbation  of  Morton  v.  Tib- 
bett, supra,)  is  by  Crompton,  J.,  in  Currie  v.  Anderson,  29  L.  J.  n.  s. 
87  (v).  li.,  when  citing  from  Lord  Campbell's  judgment,  "  After  a  care- 
ful review  of  the  cases,  the  court  came  to  the  conclusion  (which  in  this 
court  must  be  considered  to  be  the  law  of  the  land)  that,  in  order  to 
make  an  acceptance;  and  receipt  within  the  Statute  of  Frauds,  it  was 
not  necessary  that  the  vendee  should  have  done  anything  to  preclude 
himself  from  objecting  to  the  goods."  That  was  the  decision  in  Morton 
v.  Tibbett;  and  from  the  discussion  of  to-day  I  see  reason  to  be  more 
satisfied  than  ever  with  it.  Having  considered  all  these  cases,  I  think 
the  decision  in  Morton  v.  Tibbett,  supra,  is  right,  and  that  such  an 
acceptance  is  sufficient,  although  the  purchaser  in  certain  cases  may 
still  have  his  right  of  rejection.  Here  there  was  sufficient  receipt  and 
acceptance  to  pass  the  property,  and  there  was  a  binding  contract,  and 
the  question  is,  Can  an  action  be  maintained  for  the  price  of  the  goods? 
Now,  the  first  lot  was  actually  delivered,  and  I  shall  use  the  term 
"actually  received."  The  goods  were  sold  by  valid  contract,  actually 
delivered  and  received,  and  after  this  the  vendee  objects  to  them.  If 
they  had  not  been  equal  to  the  sample  I  say  that  it  was  not  even  then 
too  late  to  object ;  but  the}'  were  equal  to  the  sample,  and  they  were 
dressed.  Now,  where  by  a  contract  under  which  there  is  a  right  to 
reject,  and  there  has  been  an  actual  delivery  and  an  actual  receipt,  and 
the  state  of  the  goods  is  such  as  to  give  no  right  to  reject,  any  attempt 
to  reject  them  without  such  right  is  futile,  and  the  goods  are  goods  not 
only  sold,  but  sold  and  delivered;  and  this,  I  think,  is  the  case  here. 
Now.  as  to  the  evidence  of  the  dressing  of  the  barley.  Experts  were 
called  who  said  that  they  dressed  the  barley  over  again  and  made  it 
look  better ;  but  the  jury  here  was  a  jury  of  agriculturists,  and  they 
saw  the  sample  and  understood  what  they  were  looking  at.  I  am  of 
opinion  that  the  judgment  of  the  court  below  must  be  affirmed  on  both 
points.1 


PAGE   v.   MORGAN. 
In  the  Queen's  Bench  Division,  Court  of  Appeal,  June  10,  1885. 

Reported  in  15  Queen's  Bench  Division,  22S.] 

Appeal  from  the  judgment  of  the  Queen's  Bench  Division  refusing 
an  application  for  a  new  trial,  or  to  enter  judgment  for  the  defendant. 

The  action  was  for  the  price  of  wheat,  or  in  the  alternative  for 
damages  for  non-acceptance  of  the  wheat. 

The  statement  of  defence  denied  the  contract  of  purchase,   alleged 

1  Cotton,  L.  J.,  delivered  a  brief  concurring  opinion. 


814  PAGE  V.    MORGAN.  [CHAP.  VI. 

that  the  wheat  was  sold  by  sample,  and  the  bulk  was  not  equal  to  the 
sample,  and  set  up  non-compliance  with  the  Statute  of  Frauds. 

The  case  was  tried  before  Bulwer,  Q.  C,  sitting  as  commissioner 
at  the  Chelmsford  Summer  Assizes,  1884,  when  the  facts  were  as 
follows  :  — ■ 

The  defendant,  a  miller,  bought  of  the  plaintiff  by  oral  contract 
through  the  plaintiff's  agent  eighty-eight  quarters  of  wheat.  The  sale 
was  by  sample.  The  wheat  was  shipped  by  the  plaintiff's  agent  on  a 
barge  for  carriage  to  the  defendant's  mill,  which  was  upon  a  navigable 
canal.  The  barge  arrived  at  the  mill  on  the  evening  of  Tuesday  the 
25th  of  March,  and  at  eight  o'clock  on  the  morning  of  the  2Gth  some  of 
the  sacks  containing  the  wheat  were,  by  direction  of  the  defendant's 
foreman,  hoisted  up  out  of  the  barge  on  to  the  mill  and  examined  by 
him.  After  twenty-four  sacks  had  been  hoisted  up  and  examined,  the 
foreman  sent  for  the  defendant,  who  came  to  the  mill  and  inspected  the 
contents  of  the  sacks  already  delivered,  and  ordered  some  more  to  be 
sent  up  for  examination,  and  after  having  examined  thirty-eight  sacks  in 
all,  he  at  nine  o'clock  told  the  bargeman  to  send  up  no  more,  as  the 
wheat,  he  said,  was  not  equal  to  sample.  The  defendant  then  on  the 
same  day  went  off  to  see  the  plaintiff's  agent  at  a  neighboring  market 
town,  and  told  him  that  the  wheat  was  not  equal  to  sample,  and  that  he 
should  not  take  it.  Some  days  afterwards,  the  excict  interval,  however, 
was  not  stated,  the  wheat  taken  into  the  mill  was  returned  by  defend- 
ant's order  to  the  barge,  which  remained  at  the  defendant's  mill  with 
the  wheat  in  it,  the  plaintiff  refusing  to  take  the  wheat  away,  for  seven 
weeks  and  until  after  action  was  brought,  when  the  wheat  was  sold  by  the 
order  of  a  judge  at  chambers,  and  the  proceeds  paid  into  court  to  abide 
the  event  of  the  action. 

The  learned  commissioner  directed  the  jury,  on  the  authority  of  Mor- 
ton v.  Tibbett,  15  Q.  B.  428,  and  Kibble  v.  Gough,  38  L.  T.  (x.  s.)  201, 
that  there  was  evidence  of  an  acceptance  by  the  defendant  sufficient  to 
constitute  a  contract  within  the  17th  section  of  the  Statute  of  Frauds, 
although  the  defendant  was  not  precluded  from  rejecting  the  wheat  if 
not  equal  to  sample.  The  jury  found  that  the  wheat  was  equal  to  sam- 
ple, and  that  the  defendant  had  accepted  it  within  the  meaning  of  the 
17th  section  of  the  Statute  of  Frauds,  and  accordingly  gave  a  verdict 
for  the  plaintiff. 

A  rule  for  a  new  trial,  or  to  enter  judgment  for  the  defendant,  was 
moved  for  on  the  ground  that  there  was  no  evidence  for  the  jury  of  an 
acceptance  of  the  wheat  by  the  defendant  to  satisfy  the  statute,  but  the 
Queen's  Bench  Division  (Lord  Coleridge,  C.  J.,  and  Cave,  J.)  refused 
the  application. 

Morten  (Murphy,  Q.  C,  with  him),  for  the  defendant. 

Philbrick,  (\.  C,  and  R.  Vaughan   Williams,  for  the  plaintiff. 

Brett,  M.  R.  It  seems  to  me  that  the  case  of  Kibble  v.  Gough, 
8vpra,  1m\  s  down  tin;  governing  principle  with  regard  to  the  question 
whether  there  is  evidence  of  an  acceptance  to  satisfy  the  17th  section 


SECT.  V.]  PAGE   V.    MORGAN.  815 

of  the  Statute  of  Frauds.  It  was  there  pointed  out  that  there  must 
be  under  the  statute  both  an  acceptance  and  actual  receipt,  but  such 
acceptance  need  not  be  an  absolute  acceptance ;  all  that  is  neces- 
sary  is  an  acceptance  which  could  not  have  been  made  except  upon 
admission  that  there  was  a  contract,  and  that  the  goods  were  sent  to 
fulfil  that  contract.  Cotton,  L.  J.,  in  giving  judgment  in  that  case, 
said:  "  All  that  is  wanted  is  a  receipt  and  such  an  acceptance  of  the 
goods  as  shows  that  it  has  regard  to  the  contract,  but  the  contract  may 
yet  be  left  open  to  objection  ;  so  that  it  would  not  preclude  a  man  from 
exercising  such  a  power  of  rejection.  I  think  that  in  this  case  enough 
had  been  done  to  satisfy  the  statute."  Kow  what  had  been  done  in 
that  case?  The  goods  had  been  taken  into  the  defendant's  wan-house 
and  kept  for  some  time,  though  not  so  long  as  to  make  it  unreasonable 
that  the  defendant  should  exercise  his  right  of  rejection  if  the  goods 
had  not  been  according  to  contract,  and  the  defendant  had  inspected 
the  goods.  They  therefore  had  been  delivered  and  actual  possession  of 
them  had  been  taken,  and  they  had  been  dealt  with  by  the  defendant 
for  the  purposes  of  the  contract.  It  was  held  that  under  those  circum- 
stances what  had  been  done  in  respect  to  the  goods  by  the  defendant 
must  be  considered  as  having  been  done  with  regard  to  a  contract  for 
the  purchase  of  the  goods,  and  as  amounting  to  a  recognition  of  the 
existence  of  such  contract,  and  that  therefore,  though  the  defendant 
might  still  have  a  right  to  reject  the  goods  if  not  equal  to  sample,  there 
was  evidence  on  which  the  jury  might  find  that  the  defendant  had  ac- 
cepted the  goods  within  the  meaning  of  the  statute.  That  being  the 
law  as  laid  down  by  that  decision,  what  was  the  evidence  on  the  ques- 
tion of  acceptance  in  the  present  case?  The  wheat  was  sent  to  the 
defendant's  mill  in  a  barge,  which  was  brought  under  the  mill  in  the 
evening.  The  next  morning  a  considerable  quantit}'  of  wheat  was  taken 
up  by  the  defendant's  servants  into  the  defendant's  mill  and  remained 
there  some  time  more  or  less  until  the  defendant  had  opened  the  sacks 
and  examined  their  contents  to  see  if  they  corresponded  with  the  sam- 
ple. How  could  the  defendant  have  these  sacks  taken  into  his  mill  and 
there  opened  and  examined  without  a  recognition  of  the  existence  of  a 
contract  entitling  him  so  to  deal  with  them?  How  could  any  reason- 
able men  come  to  any  other  conclusion  from  his  dealing  with  them  than 
that  he  had  made  a  contract  of  purchase  with  regard  to  them,  and  that 
the  goods  were  delivered  to  and  received  by  him  under  such  contract, 
and  examined  by  him  to  see  if  they  were  according  to  the  contract? 
It  seems  to  me  clear  that  under  these  circumstances  there  was  evidence 
for  the  jury,  of  an  acceptance  within  the  meaning  of  the  statute.  I  can 
conceive  of  many  cases  in  which  what  is  done  with  regard  to  the  deliv- 
ery and  receipt  of  the  goods  may  not  afford  evidence  of  an  acceptance. 
Suppose  that,  goods  being  taken  into  the  defendant's  warehouse  by  the 
defendant's  servants,  directly  he  sees  them,  instead  of  examining  them. 
he  orders  them  to  be  turned  out  or  refuses  to  have  anything  to  do  with 
them.     There  would  there  be  an  actual  delivery,  but  there  would  be  no 


816  PAGE   V.    MORGAN.  [CHAP.  VI. 

acceptance  of  the  goods,  for  it  would  be  quite  consistent  with  what  was 
done  that  he  entirely  repudiated  any  contract  for  the  purchase  of  the 
same.  I  rely  for  the  purposes  of  my  judgment  in  the  present  case  on 
the  fact  that  the  defendant  examined  the  goods  to  see  if  they  agreed 
with  the  sample.  I  do  not  see  how  it  is  possible  to  come  to  any 
other  conclusion  with  regard  to  that  fact  than  that  it  was  a  dealing 
with  the  goods  involving  an  admission  that  there  was  a  contract.  It 
appears  to  me  that,  having  regard  to  the  case  of  Kibble  v,  Gough, 
which  is  an  authority  binding  on  us,  there  was  clearly  evidence 
in  this  case  for  the  jury  of  an  acceptance,  and  that  upon  such  evi- 
dence there  was  only  one  conclusion  to  which  the}-  reasonably  could 
come.  The  counsel  for  the  defendant  placed  reliance  on  the  case  of 
Rickard  v.  Moore,  38  L.  T.  (n.  s.)  841.1  It  is  alleged  that  in  that  case 
Lord  Bramwell  doubted  the  correctness  of  what  he  had  said  in  the 
previous  case  of  Kibble  v.  Gough,  sttprd.  However  that  may  be, 
it  is  quite  clear  that  that  case  cannot  overrule  Kibble  v.  Gough, 
supra.  For  these  reasons  I  am  of  opinion  that  this  appeal  must  be 
dismissed. 

Bowek,  L.  J.  This  case  appears  to  me  to  be  governed  by  the  de- 
cision in  Kibble  r.  Gough,  supra.  That  decision  would  be  binding  upon 
me  whether  I  agreed  with  it  or  not,  but  it  seems  to  me  that  it  is  based 
on  the  soundest  sense.  The  statute  says  that  the  contract  shall  not  be 
good  unless,  among  other  alternative  requisites,  there  has  been  an 
acceptance  and  actual  receipt  of  some  part  of  the  goods.  Having  re- 
gard to  the  mischiefs  at  which  the  statute  was  aimed,  it  would  appear  a 
natural  conclusion  that  the  acceptance  contemplated  by  the  statute  was 
such  a  dealing  with  the  goods  as  amounts  to  a  recognition  of  the  con- 
tract. That,  accordingly,  was  the  view  taken  by  this  court  in  the  case 
of  Kibble  v.  Gough,  supra.  In  Rickard  v.  Moore,  supra,  there  was 
the  distinction  that  has  been  pointed  out  by  my  brother  Baggallay. 
In  Kibble  v.  Gough,  supra,  the  goods  were  found  to  be  equal  to  sample, 
and  it  therefore  became  necessary  to  decide  in  that  case  whether  there 
was  an  acceptance  within  the  17th  section;  in  Rickard  v.  Moore, 
supra,  the  goods  were  found  not  to  be  equal  to  sample,  so  it  was  only 
necessary  to  decide  whether  the}*  were  rightly  rejected.  I  do  not  think 
that  Lord  Bramwell,  by  his  remarks  on  what  had  thus  become  a  by- 
point,  can  have  intended  to  overrule  the  previous  decision  of  this  court. 
In  any  case  we  are  bound  by  the  decision  in  Kibble  v.  Gough,  supra. 

Appeal  dismissed.3 

1  That  was  an  action  for  the  price  of  wool.  At  the  trial  a  verbal  agreement  to  sell 
six  bales  of  wool  like  various  samples  was  proved.  The  plaintiff  delivered  the  wool 
at  Wilton  Station  ami  defendant  remover!  it,  unpacked  it,  found  two  bales  unequal 

iin]ilc,  and  on  the  same  day  wrote  the  plaintiff  this  and  asked  :  "What  is  to  lie 
done  in  the  matter  !  "  August  1  the  plaintiff  replied  denying  the  inferiority.  The 
defendant  then  sent  the  wool  to  the  railway  station  and  telegraphed  his  refusal  to  take 
it.  The  jury  found  that  two  hales  were  not  equal  to  sample,  and  Hawkins,  J.,  gave 
jndgmenl  for  the  plaintiff.  An  appeal  hy  the  plaintiff  was  dismissed.  BramwelI/, 
L.  J.,  distinguished  Kibble  v.  Gfanigh  on  the  ground  that  in  that  case  the  jury  might 
find  Bnfficienl  evidence  of  acceptance  under  the  statute,  though  there  might  not  be 
sufficient  t"  prevenl  objections  to  the  goods  as  not  equal  to  sample. 

2  Baqgaixay,  L.  J.,  delivered  a  concurring  opinion. 


SECT.  V.]  LUCAS    V.    DIXOX.  817 


LUCAS   v.    DIXON. 

In  the  Queen's  Bench  Division,  Coukt   of   Appeal,  January  17, 

1889. 

[Reported  in  22  Queen's  Bench  Division,  357.] 

Appeal  from  the  judgment  of  Stephen,  J.,  at  the  trial  of  the  cause 
without  a  jury. 

The  action  was  brought  for  the  non-acceptance  of  goods  on  a  con- 
tract coming  within  the  17th  section  of  the  Statute  of  Frauds.  The 
plaintiff  having  made  an  application  under  Order  xiv.,  r.  1,  the  defend- 
ant made  an  affidavit  in  opposition.  At  the  trial  the  plaintiff  relied  on 
the  affidavit  so  made  as  constituting  a  note  or  memorandum  of  the 
contract  sufficient  to  satisfy  the  statute.  The  learned  judge  was  of 
opinion  that  the  terms  of  the  contract  sufficiently  appeared  in  the 
affidavit  to  make  it  a  note  or  memorandum,  but  that  it  could  not  be 
available  to  the  plaintiff  as  it  was  not  in  existence  when  the  action  was 
brought.     He  therefore  gave  judgment  for  the  defendant. 

The  plaintiff  appealed. 

A.  Henry,  for  the  appellant. 

T.  Willes  Chitty,  for  the  defendant. 

Bowen,  L.  J.  The  question  is  whether  there  is  a  note  or  memo- 
randum in  writing  sufficient  to  satisfy  the  Statute  of  Frauds,  and 
the  evidence  in  support  of  that  view  consists  of  an  affidavit  sworn 
by  the  defendant  in  opposition  to  an  application  under  Order  xiv. 
If  this  affidavit,  which  I  will  assume  for  the  purpose  of  the  argu- 
ment contains  sufficient  evidence  of  the  contract,  had  been  sworn 
in  some  previous  action  and  had  been  used  in  this,  Goode  v.  Job, 
28  L.  J.  (Q.  P>.)  1,  and  Barkworth  v.  Young,  4  Drew.  1,  show  that  the 
document  is  not  necessarily  the  less  a  sufficient  memorandum  because 
it  is  sworn  in  an  action.  What  we  have  to  consider  is  whether  such  a 
memorandum  after  action  is  sufficient  in  that  action.  I  think  the  true 
view  is  that  expressed  by  Lord  Blackburn  in  Maddison  v.  Alderson,  8 
App.Cas.4G7,  at  p.  488:  "I  think  it  is  now  finally  settled  that  the 
true  construction  of  the  Statute  of  Frauds,  both  the  4th  and  17th  sec- 
tions, is  not  to  render  the  contracts  under  them  void,  still  less  illegal, 
but  is  to  render  the  kiiTd  of  evidence  required  indispensable  when  it  is 
sought  to  enforce  the  contract."  That  still  leaves  it  open  to  question 
as  to  what  is  the  time  at  which  it  can  be  said  the  contract  is  sought  to 
be  enforced,  —  when  the  action  is  brought,  or  when  it  is  sought  to  prove 
the  ease  by  adducing  the  evidence.  I  cannot  help  thinking  that  the  view 
of  Lord  Blackburn  was  that  at  the  time  the  action  is  brought  the  evi- 
dence ought  to  be  in  existence,  at  all  events  in  a  contract  under  s.  4. 
because  he  speaks  of  a  contract  not  being  "  enforceable"  unless  signed 
by  or  on  behalf  of  the  party  to  be  charged. 

52 


818  LUCAS   V.    DIXON.  [CHAP.  VI. 

But  we  must  consider  the  matter  partly  on  the  statute  and  partly  on 
the  authorities.  Looking  at  the  statute  itself  it  strikes  one  that  it  is  for 
the  prevention  of  fraud  as  well  as  perjury.  It  may  well  be  that  though 
tlir  contract  may  not  be  void,  the  Legislature  intended  to  prevent  per- 
sons being  vexed  with  actions  that  could  not  succeed.  But  when  we 
come  to  s.  4,  I  cannot  help  thinking  that  it  is  perfectly  clear  that  the 
memorandum  or  note  must  be  in  existence  at  the  time  the  action  is 
brought.  That  was  the  view  taken  by  the  courts  in  equity  which  had 
to  deal  with  the  4th  more  perhaps  than  they  had  with  the  17th  section. 
I  think  it  follows  that  was  their  view,  because  they  allowed  a  bill,  which 
showed  on  the  face  of  it  that  the  conditions  of  the  statute  had  not 
been  complied  with,  to  be  demurrred  to,  or,  in  other  words,  allowed  a 
defendant  to  take  by  demurrer  an  objection  to  the  institution  of  the 
action,  which  would  show  that  they  thought  that  the  matter  could  not 
be  cured  by  evidence.     Wood  v.  Midgley,  5  De  G.  M.  &  G.  41. 

It  was  held,  no  doubt,  that  if  the  defendant  admitted  his  liability,  that 
was  sufficient,  —  not  on  the  ground  that  his  admission  was  a  memoran- 
dum of  the  contract,  but  that  it  was  an  admission  that  there  was  such  a 
memorandum.     That  is  shown  by  the  fact  that  if,  at  the  same  time,  he 
set  up  the  statute  his  admission  did  not  operate.     So  a  plea  ot  the  stat- 
ute was  allowed,  and  as  a  plea  goes  to  the  state  of  things  at  the  time  of 
action  brought,  that  leads  to  the  same  conclusion.     Then  when  we  come 
to  s.  17,  is  there  any  distinction  in  reason  between  the  matters  dealt  with 
in  the  two  sections  so  as  to  lead  us  to  think  that  some  different  reasoning 
applies  to  them  ?    The  words  are  different,  but  in  s.  17  one  of  the  things 
for  which  a  contract  shall  be  allowed  to  be  good  is  acceptance  of  part  of 
the  woods,  which  one  would  certainly  expect  to  take  place  before  action, 
and  another  is  the  giving  of  something  in  earnest  to  bind  the  bargain, 
to  which  the  same  remark  applies.     It  is  reasonable  to  suppose  from 
this  that  the  note  or  memorandum  was  to  be  something  completed  before 
action.     Turning  to  the  cases,  the  courts  have  never  drawn  a  distinc- 
tion in  this  respect  between  the  two  sections;    on  the  contrary,  the 
general  opinion  expressed  in  the  cases  is  that  they  are  in  pan  materia. 
There  is  a  great  deal  of  authority  at  common  law  that  a  memorandum 
coming  into  existence  after  action  brought  is  not  available  to  the  plain- 
tilt  under  s.  17.     In  Flicker  v.  Thomlinson,  1  M.  &  G.  772,  there  was 
no  decision,  but  Maule,  J.,  expressed  an  opinion  on  the  point.     In  Bill 
v.  Bament,  9  M.  &  W.  36,  the  point  was  made  which  is  sought  to  be 
argued   in   the   present  case ;   but  it  was   abandoned,   or  at  all  events 
treated  as  untenable,  because  the  counsel  on  the  other  side  were  stopped. 
Lord  Abinger  thought  it  too  untenable  to  require  discussion,  and  Parke, 
B.,  said  :   '•  There  must,  in  order  to  sustain  the  action,  he  a  good  con- 
tract in  existence  at  the  time  of  the  action  brought;  and  to  make  it  a 
id  contract  under  the  statute,  there  must  be  one  of  the  three  requi- 
sites therein  mentioned." 

There  is  thus  distinct  authority,  forty-seven  years  old,  and  so  far  as 
I    know,    not   questioned,    but   acted    on    and    treated    as    binding,  and 


SECT.  V.]  TAYLOR   V.    SMITH.  819 

though  it  may  appear  a  technical  point,  I  should  hesitate  to  do  any- 
thing to  disturb  a  rule  laid  down  about  the  Statute  of  Frauds  and  acted 
on  for  so  long.  It  is  said  that  at  that  time  the  courts  were  of  opinion 
that  for  want  of  a  memorandum  the  contract  was  void,  lint,  I  cannot 
agree  that  that  was  the  case.  There  are  many  instances  to  the  con- 
trary. Thus  in  Bailey  v.  Sweeting,  9  C.  15.  (n.  s.)  843,  Williams,  J., 
says:  "A  memorandum  given  after  action  brought  will  not  do."  and 
adds,  "The  reason  given  is  that  the  cause  of  action  is  not  complete 
until  the  memorandum  is  given,"  and  the  learned  judge  repeats  in  his 
judgment  what  he  had  said  in  the  course  of  his  argument:  "  The  effect 
of  that  enactment  is  that,  although  there  be  a  contract  which  is  a  good 
and  valid  contract,  no  action  can  be  maintained  upon  it  if  made  by 
word  ol*  mouth  only,  unless  something  else  has  happened,  e.g.,  unless 
there  be  a  note  or  memorandum  in  writing  of  the  bargain  signed  by  the 
party  to  be  charged.  As  soon  as  such  a  memorandum  comes  into 
existence  the  contract  becomes  an  actionable  contract."  Tn  Gibson  v. 
Holland,  Law  Rep.  1  C.  P.  1,  Bill  v.  Bament,  supra,  was  cited  by 
WilleSj  J.,  and  treated  as  binding  law.  At  an  earlier  date,  in  Sieve- 
wright  v.  Archibald,  17  Q.  B.  103,  similar  language  was  used  by  Erie,  J. 
The  matter  comes  to  this,  that  in  no  case  has  it  been  said  that  a  mem- 
orandum made  after  action  is  sufficient,  but  that  Bill  v.  Bament.  sup/-". 
says  the  contrary,  and  has  been  followed  by  several  cases  and  accepted 
by  the  text-books  until  the  last  edition  of  Mr.  Benjamin's  work  on  the 
Sale  of  Personal  PropeiMy,  which  seems  to  suggest  something  in  Lord 
Blackburn's  judgment  in  Maddison  v.  Alderson,  supra,  to  a  contrary 
effect.  I  do  not  think  that  suggestion  is  warranted  by  anything  in  that 
judgment,  and  on  the  whole,  though  feeling  that  the  objection  is  techni- 
cal, I  have  come  to  the  conclusion  that  the  plaintiff  was  not  entitled  to 
succeed,  and  that  the  learned  judge  was  right.  Jj^x^'l  dismissed.1 


TAYLOR  v.    SMITH. 

Ix  The  Queen's  Bench  Division.  Court  of  Appeal,  February  2G. 

1892. 

[Reported  in  [1893]  2  Queen's  Bench,  65.] 

Lord  Hersciiell.  This  action  is  brought  in  respect  of  an  alleged 
contract  for  the  sale  of  deals,  and  the  question  is  whether  there  is  a 
contract  complying  with  the  requisitions  of  the  17th  section  of  the 
Statute  of  Frauds.  The  bargain  was  made  by  word  of  mouth.  An 
invoice  was  made  out  which  was  dated  October  21.  but  not  sent  to  the 
defendant    till  October  30,  which   was    in    these  terms:     •■  Mr.  John 

1  Lord  Esiier,  M.  R.,  and  Fry,  L.  J.,  delivered  concurring  opinions. 


820  TAYLOR    r.    SMITH.  [CHAP.  VI. 

Smith,  Manchester.  Bought  from  Messrs.  Charles  Taylor.  Sons,  & 
Co.,  1060  spruce  deals.  Free  to  flat,  £100  Hi.  -id.,  per  Kenworthy's 
flat.  Arthur."  Kenworthy  was  a  carrier  who  carried  goods  to  Man- 
chester, and  part  of  the  arrangement  was  that  the  deals  should  be  sent 
by  Kenworthy's  flat.  The  first  question  is  whether  there  was  a  memo- 
randum in  writing  signed  by  the  defendant  of  the  terms  of  the  con- 
tract. No  letter  was  written  b}T  him  which  contained  any  direct 
reference  to  the  invoice.  He  signed  the  following  memorandum  on 
the  advice  note  sent  him  by  the  carrier:  "Refused.  Not  according 
to  representation.  John  Smith."  The  only  other  document  signed  by 
the  defendant  was  a  letter  dated  November  8,  written  b}r  him  to  the 
plaintiffs,  which  was  as  follows:  "■  With  reference  to  the  deals  re- 
fused b}'  me  now  lying  at  Kenworthy's,  the}- are  not  according  to  repre- 
sentation, and  much  inferior  in  quality  to  any  St.  Johns  spruce  deals 
I  have  seen.  I  consider  them  fully  10s.  per  standard  below  average 
value,  and  therefore  cannot  accept  same."  The  question  is  whether 
either  or  both  of  these  documents  can  be  said  to  be,  in  conjunction  with 
any  document  incorporated  with  or  referred  to  in  them,  or  either  of 
them,  a  memorandum  within  the  statute.  It  is  obvious  that  the  advice 
note,  the  indorsed  memorandum,  and  the  letter  do  not  by  themselves 
constitute  such  a  memorandum,  for  the  terms  of  the  bargain  are  not  to 
be  found  in  them.  If  any  of  them  had  referred  to  or  incorporated  the 
invoice  I  think  there  would  have  been  a  sufficient  memorandum  ;  but 
it  is  impossible  to  say  that  the  invoice  is  incorporated  with  or  referred 
to  in  any  of  them.  Thei'e  is  therefore  no  memorandum  to  satisfy  the 
statute. 

The  second  point  is  this  —  it  was  strongly  insisted  upon  by  the  plain- 
tiffs—  that  there  was  an  acceptance  of  the  goods  and  an  actual  receipt 
of  them  by  the  purchaser.  About  the  receipt  there  is  no  difficult}'. 
The  goods  were  sent  to  the  defendant  on  the  flat  of  Kenworthy,  the 
carrier  chosen  by  him,  were  landed  at  Kenworthy's  wharf,  and  notice 
of  their  arrival  was  sent  to  the  defendant  by  Kenworthy,  informing  him 
that  they  were  then  at  his  order.  But  the  statute  requires  that  the 
goods,  or  some  part  thereof,  shall  have  been  accepted  as  well  as 
received.  Acceptance  therefore  means  something  beyond  receipt; 
receipt  alone  is  not  enough.  That  receipt  by  a  carrier  designated  by 
the  purchaser  is  not  enough  to  constitute  an  acceptance  has  been 
settled  by  numerous  authorities  which  have  not  been  overruled,  though 
Mime  of  the  dicta  in  them  may  be  inconsistent  with  later  decisions. 
What  have  we  here  beyond  the  receipt?  The  defendant  examined  the 
goods  on  October  28  and  2'.).  There  is  a  controversy  as  to  whether  he 
did  not  examine  them  again  on  November  ">.  He  denies  that  he  did, 
and  it  would  not  be  safe  to  act  on  the  view  that  lie  did  make  this  later 
mination.  On  the  29th  of  October,  as  he  says,  he  wrote  the  memo- 
randum of  refusal  on  the  advice  note,  and  there  is  no  evidence  on 
which  we  could  safely  act  that  lie  wrote  it  at  any  later  date.  Then  on 
November  8  he  writes  the  letter  I  have  rend.     Can   he  under  these  cir- 


SECT.  V.] 


TAYLOR    V.    .SMITH.  821 


cumstances  be  said  to  have  accepted  as  well  as  received  the  goods? 
It  has  been  decided  that  there  may  be  an  acceptance  of  goods  within 
the  meaning  of  the  statute,  though  the  right  to  reject  the  goods  as  not 
being  according  to  sample  has  not  been  lost ;  but  unfortunately  the  cases 
give  no  clear  explanation  of  what  is  an  acceptance  within  the  meaning 
of  the  statute.  The  statute  has  not  said  that  there  must  be  some  act 
recognizing  the  contract  ;  it  requires  recognition  in  a  particular  way. 
by  acceptance  of  the  goods  or  some  portion  of  them.  ••  Acceptance  " 
is  not  used  in  the  statute  according  to  its  common  acceptation,  and  in 
What  precise  sense  it  is  used  has  never  been  determined.  The  plain- 
tills  in  support  of  the  view  that  there  has  been  an  acceptance  rely  on 
Morton  v.  Tibbett,  15  <l  B.  128,  and  the  two  recent  cases  in  the  Court 
of  Appeal  of  Kibble  v.  Gough,  38  L.  T.  (n.  s.)  201.  and  Page  /•.  Mor- 
gan, l.~»  Q.  B.  I).  228.  In  the  two  latter  cases  the  action  was  tried  by 
a  jury,  and  the  question  before  the  Court  of  Appeal  was  not  whether 
there  had  been  an  acceptance,  but  whether  there  was  evidence  of  ac- 
ceptance to  go  to  the  jury,  and  the  court  held  that  there  was.  Page 
c.  Morgan  was  most  relied  on,  where  the  law  was  laid  down  by 
Bowen,  L.  J.,  in  these  terms:  "Having  regard  to  the  mischiefs  at 
which  the  statute  was  aimed,  it  would  appear  a  natural  conclusion 
that  the  acceptance  contemplated  by  the  statute  was  such  a  dealing 
with  the  goods  as  amounts  to  a  recognition  of  the  contract."  In  that 
case  the  goods,  which  consisted  of  bags  of  flour,  had  been  taken  in 
part  into  the  defendant's  mill,  and  he  there  opened  some  of  them  for 
examination.  It  was  held  that  there  was  evidence  to  go  to  the  jury 
that  he  had  accepted  the  goods.  In  the  present  case  the  question  is 
not  whether  there  was  evidence  on  which  a  jury  might  find  acceptance, 
but  whether  the  judge  was  wrong  in  finding  that  there  had  not  been  an 
acceptance.  I  am  not  satisfied  that  there  was  an  acceptance  of  these 
goods  within  any  reasonable  meaning  of  the  word.  I  cannot  think 
that  the  mere  inspection  of  the  goods  by  the  defendant  amounted  to 
acceptance,  even  accompanied  with  such  delay  as  there  was  in  com- 
municating with  the  vendors.  No  doubt  you  might  have  a  case  in  which 
there  was^sueh  an  amount  of  delay  after  the  goods  had  been  placed 
in  the  custody  directed  by  the  purchaser  as  to  prevent  the  purchaser 
from  withdrawing,  but  here  there  has  been  no  such  lapse  of  time  as 
can  preclude  the  purchaser  from  denying  that  he  has  accepted  the 
goods.  The  question  then  is,  Has  there  been  any  such  dealing  with  the 
goods  as  amounts  to  acceptance  ?  I  think  that  no  case  has  gone  quite 
so  far  as  we  should  be  going  if  we  were  to  say  that  there  was  here  evi- 
dence  on  which  a  jury  might  properly  find  acceptance.  In  Page  v. 
Morgan  the  purchaser  had  some  of  the  sacks  taken  into  his  mill;  here 
the  goods  were  only  landed  at  Kenworthy's  wharf,  and  the  defendant 
gave  no  directions  as  to  dealing  with  them.  In  Page  v.  Morgan,  after 
some  of  the  sacks  had  been  taken  into  the  defendant's  mill,  the  defend- 
ant there  opened  them.  In  the  present  ease  all  that  appears  is  that 
the  <-oods  were  at  the  carrier's  wharf  and  the  defendant  there  looked  at 


8-2  VINCENT    V.    GERMOND.  [CHAP.  VI. 

them.  I  think  that  this  mere  looking  at  them  cannot  be  held  to  amount 
to  acceptance.  If  I  could  find  that  there  was  acceptance  I  should  not 
be  indisposed  to  do  so,  for  one  does  not  like  the  rights  of  parties  to  be 
defeated  on  technical  grounds;  but  I  think  that  great  mischief  would 
be  done  by  reading  a  statute  in  a  way  in  which  no  reasonable  man  would 
read  it  unless  he  was  determined  to  get  rid  of  its  effect,  and  by  intro- 
ducing fine  distinctions,  which  cause  further  litigation  by  giving  rise  to 
other  fine  distinctions.     The  appeal  must  be  dismissed. 

Appeal  dismissed.1 


VINCENT  v.   B.    &  J.    GERMOND. 

Supremk  Court  of  New  York,  August  Term,  1814. 

[Reported  in  11  Johnson,  283.] 

Tins  was  an  action  of  assumpsit  for  cattle,  &c,  sold  and  delivered, 
and  was  tried  at  the  Dutchess  circuit  in  November,  1813,  before  Mr. 
Justice  Spencer. 

It  was  proved  at  the  trial  that  in  June,  1812,  B.  Germond,  one  of  the 
defendants,  came  to  the  plaintiff  and  asked  him  if  he  had  an}-  cattle  to 
sell,  and  the  plaintiff  replying  in  the  affirmative  they  went  together  into 
the  field  to  look  at  them.  B.  Germond  offered  $280  for  the  cattle,  four 
in  number,  which  after  some  hesitation  the  plaintiff  agreed  to  accept,  if 
they  were  at  B.  G.'s  risk,  observing  that  he  had  had  one  or  two  cattle 
injured  by  the  clover  in  the  field  where  the  cattle  were  feeding.     B. 

1  Lindley  and  Kay,  L.  JJ.,  delivered  concurring  opinions.  The  former  in  the 
course  of  his  opinion  said:  "  As  regards  acceptance — apart  from  Morton  v.  Tihhett, 
15  Q.  B.  428,  as  to  which  I  only  say  that  I  recognize  its  authority — I  should  have 
thought  it  plain  that  there  was  no  acceptance  at  all.  If  a  man  merely  looks  at  goods, 
and  then  says  he  rejects  them,  how  can  it  lie  said  that  he  has  accepted  them  ?  Morton 
v  Tihhett  whs  a  peculiar  case,  for  the  purchaser  resold  the  goods  before  he  saw  them ; 
that  was  a  distinct  dealing  with  the  goods,  and  was  held  to  be  such  an  acceptance  as 
to  satisfy  the  statute,  though  not  such  an  acceptance  as  to  preclude  him  from  rejecting 
them  if,  when  he  examined  them,  lie  found  that  they  were  not  according  to  sample. 
Hence  was  developed  the  doctrine  that  there  may  be  an  acceptance  within  the  statute, 
and  vet  not  such  an  acceptance  as  to  prevent  the  purchaser  from  repudiating  the 
goods  on  the  ground  that  they  are  nol  according  to  the  contract.  It  appears  from 
Page  v.  Morgan,  15  Q.  P>.  I).  228,  that  the  test  is  whether  there  has  been  such  a  deal- 
ing with  the  goods  as  amounts  to  a  recognition  of  the  contract.  The  jury  there  found 
that  there  had  been  acceptance,  and  the  Court  of  Appeal  refused  to  disturb  the  ver- 
diet.  The  Master  of  the  Rolls  said.  '  I  rely,  b>r  the  purposes  of  my  judgment  in  the 
present  case,  on  the  fact  that  the  defendant  examined  the  goods  to  see  if  they  agreed 
with  the  sample.  I  do  not  sec  how  it  is  possible  to  come  to  any  other  conclusion  with 
regard  to  that  fact  than  that  it  was  a  dealing  with  the  goods  involving  an  admission 
thai  there  was  a  contract.'  Whether  I  should  have  gone  so  far  I  need  not  say  ;  but  we 
know  how  difficult  it  is  to  upset  the  verdict  of  a  jury  when  there  is  any  evidence  to 
support  it.  In  the  present  case,  if  I  had  been  the  jury,  I  should  have  found  that  the 
-  hint  had  not  accepted  the  goods,  lie  merely  went  and  looked  at  them  on  two 
occasions,  and,  finding  that,  they  were  not  what  he  wanted,  he  rejected  them.  I  think 
that  there  was  no  acceptance  in  any  sense  of  the  word." 


SECT.  V.]  VINCENT   V.    GERMOND.  823 

Germond  replied  that  he  took  them  at  his  own  risk,  and  the  cattle  must 
remain  where  they  were  ;  that  lie  would  call  and  take  them  away  as 
soon  as  he  had  completed  his  drove.  After  the  bargain  was  concluded 
the  cattle  so  purchased  continued  in  the  same  field  with  other  cattle  of 
the  plaintiff;  in  a  few  days  one  of  them  died,  being  injured  by  the  clover. 
On  the  4th  of  July  following,  James  Germond,  the  other  defendant. 
came  alone  to  the  field  and  took  away  the  three  remaining  eattle  without 
saying  anything  to  the  plaintiff. 

The  defendants  gave  some  evidence  of  a  tender  to  the  plaintiff  in 
June,  1813,  of  the  price  of  the  three  cattle  left.  It  was  agreed  that 
82.')  1   was  a  sufficient  compensation  for  the  three  cattle. 

The  defendants'  counsel  objected  to  the  parol  evidence  of  the  con- 
tract, which  was  admitted  by  the  judge,  reserving  the  question  ;  and  a 
verdict  was  taken  for  the  plaintiff  for  8311.03,  being  the  price  of  the 
four  cattle  with  interest. 

The  case  Avas  submitted  to  the  court  without  argument. 

Per  Curiam.  No  earnest  money  having  been  paid  nor  any  writing 
made  between  the  parties  relative  to  the  contract,  the  question  is. 
whether  there  was  such  a  delivery  of  the  cattle  as  to  take  the  case  out 
of  the  Statute  of  Frauds.  It  was  not  made  a  question  whether  the 
defendants  were  partners  so  as  to  be  bound  by  the  acts  of  each  other. 
It  may  be  questioned  whether  what  took  place  between  B.  Germond  and 
the  plaintiff,  if  standing  alone,  would  amount  to  a  delivery  ;  but  the  sub- 
sequent conduct  of  the  other  defendant  in  taking  away  the  three  oxen, 
without  any  new  contract,  affords  sufficient  ground  to  infer  a  delivery. 
This  was  the  exercise  of  an  act  of  ownership  over  the  property  in  con- 
firmation of  the  bargain.  The  defendants  dealt  with  the  oxen  as  their 
own,  and  as  if  in  their  actual  possession,  without  asking  any  permission 
from  the  plaintiff  for  so  doing.  This  must  have  been  done  in  virtue  of 
the  right  acquired  by  the  original  contract  and  transfer  of  the  property. 
Such  exercise  of  ownership  by  selling  part  of  the  property  was,  in  the 
case  of  Chaplin  v.  Rogers,  1  East,  192,  held  a  sufficient  delivery  to  take 
the  case  out  of  the  statute.  And  the  case  of  Elmore  v.  Stone,  1  Taunt. 
Rep.  457,  is  much  stronger  on  this  point.  It  was  there  held  that  an 
agreement  between  the  parties  that  the  vendor  should  keep  the  horses 
sold  for  the  vendee  at  livery  was  sufficient  to  vest  the  property  in  the 
buyer  without  any  written  contractor  earnest  paid.  The  opinion  of  the 
court  upon  this  point  renders  it  unnecessary  to  notice  the  other  ques- 
tion made  in  the  case.  The  plaintiff  must  accordingly  have  judgment 
upon  the  verdict  for  §311.03. 

Judgment  for  the  plaintiff. 


824  SHINDLER   V.   HOUSTON.  [CHAP.  VI. 


SHINDLER  v.  HOUSTON. 
New  York  Codkt  of  Appeals,  April  Term,  1848. 

[Reported  in  1  Comstock,  261.] 

On  error  from  the  Supreme  Court.  Houston  sued  Shindler  in  the 
Justices'  Court  of  the  city  of  Troy  in  assumjjsit  for  the  price  of  a  quan- 
tity of  lumber.  The  plaintiff  having  recovered,  the  defendant  appealed 
to  the  Mayor's  Court  of  that  city,  and  on  the  trial  in  that  court  the  case 
was  this  :  The  plaintiff  was  the  owner  of  about  2.070  feet  of  curled 
maple  plank  and  scantling,  which  he  had  brought  to  Troy  in  a  boat,  and 
which  after  being  inspected  and  measured  was  piled  on  the  dock  apart 
from  an}-  other  lumber.  Soon  after  this  the  plaintiff  and  defendant  met 
at  the  place  where  the  lumber  la}-.  The  plaintiff  said  to  the  defendant, 
"  What  will  you  give  for  the  plank  ?  "  The  defendant  said  he  would 
give  three  cents  a  foot.  The  plaintiff  then  asked,  "  What  will  you  give 
for  the  scantling?"  The  defendant  replied  one  and  a  half  cents  a  foot. 
The  plaintiff  then  said,  ''The  lumber  is  yours."  The  defendant  then 
told  the  plaintiff  to  get  the  inspector's  bill  of  it  and  carry  it  to  Mr.  House, 
who  would  pay  it.  The  next  day  the  plaintiff  having  procured  the  in- 
spector's bill  presented  it  to  House,  who  refused  to  pay  it  on  the  ground 
that  the  instructions  he  had  received  from  the  defendant  did  not  corre- 
spond with  the  plaintiff's  statement  of  the  contract.  There  was  no  note 
or  memorandum  of  the  contract  in  writing,  nor  was  there  any  evidence 
of  a  delivery  or  acceptance  of  the  lumber  except  as  above  stated.  At 
the  prides  agreed  on  the  lumber  came  to  $52.51,  no  part  of  which  was 
ever  paid.  The  Mayor's  Court  instructed  the  jury  that  if  they  were 
satisfied  that  it  was  the  intention  of  the  parties  to  consider  the  lumber 
delivered  at  the  time  of  the  bargain,  and  that  nothing  further  was  agreed 
or  contemplated  to  be  done  in  order  to' change  the  title  in  or  possession 
of  the  lumber,  the  plaintiff  was  entitled  to  recover ;  that  the  sale  was 
not  within  the  Statute  of  Frauds,  and  did  not  require  any  note  or  mem- 
orandum in  writing,  provided  they  should  find  from  the  evidence  that 
there  was  a  delivery  and  acceptance  of  the  lumber  at  the  time  of  the 
bargain.  The  defendant  excepted,  and  the  jury  found  a  verdict  for  the 
plaintiff,  on  which  judgment  was  rendered  in  his  favor.  The  Supreme 
Court,  on  writ  of  error  to  the  Mayor's  Court  affirmed  the  judgment  (see 
1  Deuio,  48),  and  the  defendant  brings  error  to  this  court. 

N.  Hill,  Jr.,  for  plaintiff  in  error. 

J.  A.  Spencer  and  D.  Willard,  for  defendant  in  error. 

Wright,  J.  There  being  no  note  or  memorandum  made  in  writing 
of  the  contract  or  earnest  paid,  this  is  a  case  within  the  Statute  of 
Frauds,  unless  there  was  an  acceptance  and  receipt  of  the  whole  or  a 
put  of  the  property  by  the  buyer.  2  Rev.  Sts.  136,  §  3.  If  there  was 
an  acceptance  shown  sufficient  to  take  the  case  out  of  the  operation  of 
the  statute,  it  was  of  all  the  lumber,  as  it  is  not  pretended  that  the  en- 


SECT.  V.]  SHINULEIi   V.    HOUSTON.  825 

tire  property  vested  in  the  vendee  by  the  acceptance  and  receipt  of  a 
part  thereof.  The  question  therefore  for  consideration  upon  the  facts 
proved  is,  whether  there  was  an  acceptance  and  receipt  of  the  lumber 
by  Shindler  the  vendee  within  the  intent  and  meaning  of  the  statute. 

It  is  to  be  regretted  that  the  plain  meaning  of  the  statute  should  ever 
have  been  departed  from,  and  that  anything  short  of  an  actual  delivery 
and  acceptance  should  have  been  regarded  as  satisfying  its  requirements 
when  the  memorandum  was  omitted  ;  but  another  rule  of  interpretation 
which  admits  of  a  constructive  or  symbolical  delivery  has  become  too 
firmly  established  now  to  be  shaken.     The  uniform  doctrine  of  the  cases 
however  has  been  that  in  order  to  satisfy  the  statute  there  must  be  some- 
thing more  than  mere  words  ;   that  the  act  of  accepting  and  receiving 
required  to  dispense  with  a  note  in  writing  implies  more  than  a  simple 
act  of  the  mind,  unless  the  decision  in  Elmore  v.  Stone,  1  Taunt.  458, 
is  an  exception.     This  case  however  will  be  found  upon  examination  to 
be  in  accordance  with  other  cases,  although  the  acts  and  circumstances 
relied  upon  to  show  a  delivery  and  acceptance  were  extremely  slight  and 
equivocal ;  and  hence  the  case  was  doubted  in  Howe  v.  Palmer,  3  Barn. 
&  Aid.  324,  and  Proctor  v.  Jones,  2  Carr.  &  Payne,  534,  and  has  been 
virtually  overruled  by  subsequent  decisions.     Far  as  the  doctrine  of 
constructive  delivery  has  been  sometimes  carried,  I  have  been  unable 
to  find  any  case  that  comes  up  to  dispensing  with  all  acts  of  parties,  and 
rests  wholly  upon  the  memory  of  witnesses  as  to  the  precise  form  of 
words  to  show  a  delivery  and  receipt  of  the  goods.     The  learned  author 
of  the  "Commentaries  on  American  Law"  cites  from  the  Pandects  the 
doctrine  that  the  consent  of  the  party  upon  the  spot  is  sufficient  posses- 
sion of  a  column  of  granite,  which  by  its  weight  and  magnitude  was  not 
susceptible  of  any  other  delivery.     But  so  far  as  this  citation  may  be  in 
opposition  to  the  general  current  of  decisions  in  the  common-law  courts 
of  England  and  of  this  country,  it  is  sufficient  perhaps  to  observe  that 
the  Roman  law  has  nothing  in  it  analogous  to  our  Statute  of  Frauds. 
In  Elmore  v.  Stone  expense  was  incurred  by  direction  of  the  buyer,  and 
the  vendor  at  his  suggestion  removed  the  horses  out  of  his  sale  stable 
into  another,  and  kept  them  at  livery  for  him.     In  Chaplin  v.  Rogers, 
1  East,  192,  to  which  we  were  referred  on  the  argument,  the  buyer  sold 
part  of  the  hay,  which  the  purchaser  had  taken  away  ;  thus  dealing  with 
it  as  if  it  were  in  his  actual  possession.     In  the  case  of  Jewett  v.  War- 
ren, 12  Mass.  R.  300,  to  which  we  were  also  referred,  no  question  of 
delivery  under  the  Statute  of  Frauds  arose.     The  sale  was  not  an  abso- 
lute one,  but  a  pledge  of  the  property.     The  cases  of  Elmore  r.  Stone 
and  Chaplin  v.  Rogers  are  the  most  barren  of  acts  indicating  delivery, 
but  these  are  not  authority  for  the  doctrine  that  words  unaccompanied 
by  acts  of  the  parties  are  sufficient  to  satisfy  the  statute.     Indeed  if  any 
ease  could  be  shown  which  proceeds  to  that  extent,  and  this  court  should 
be  inclined  to  follow  it,  for  all  beneficial  purposes  the  law  mighl  as  well 
be  stricken  from  our  statute-book  ;  for  it  was  this  species  of  evidence, 
so  vague  and  unsatisfactory,  and  so  fruitful  of  frauds  and  perjuries,  that 


826  SHINDLER   V.    HOUSTON.  [CHAP.  VI. 

the  Legislature  aimed  to  repudiate.  So  far  as  I  have  been  able  to  look 
into  the  numerous  eases  that  have  arisen  under  the  statute,  the  control- 
ling principle  to  be  deduced  from  them  is,  that  when  the  memorandum 
is  dispensed  with  the  statute  is  not  satisfied  with  anything  but  unequiv- 
ocal acts  of  the  parties  ;  not  mere  words  that  are  liable  to  be  misunder- 
stood and  misconstrued,  and  dwell  only  in  the  imperfect  memory  of 
witnesses.  The  question  has  been,  not  whether  the  words  used  were 
sufficiently  strong  to  express  the  intent  of  the  parties,  but  whether  the 
acts  connected  with  them,  both  of  seller  and  buyer,  were  equivocal  or 
unequivocal.  The  best  considered  cases  hold  that  there  must  be  a  vest- 
ing of  the  possession  of  the  goods  in  the  vendee  as  absolute  owner,  dis- 
charged of  all  lien  for  the  price  on  the  part  of  the  vendor,  and  an  ultimate 
acceptance  and  receiving  of  the  property  by  the  vendee,  so  unequivocal 
that  he  shall  have  precluded  himself  from  taking  any  objection  to  the 
quantum  or  quality  of  the  goods  sold.  Chitty  on  Contracts,  390,  and 
cases  cited  ;  Hilliard  on  Sales.  135,  and  cases  cited  ;  10  Bing.  102,  384. 
But  will  proof  of  words  alone  show  a  delivery  and  acceptance  from  which 
consequences  like  these  may  be  reasonably  inferred,  —  especially  if  those 
words  relate  not  to  the  question  of  deliver}*  and  acceptance,  but  to  the 
contract  itself?  A.  and  B.  verbally  contract  for  the  sale  of  chattels  for 
ready  money  ;  and  without  the  payment  of  any  part  thereof  A.  says,  "  I 
deliver  the  property  to  you."  or  "  It  is  yours,"  but  there  are  no  acts 
showing  a  change  of  possession  or  from  which  the  fact  may  be  inferred. 
B.  refuses  payment.  Is  the  right  of  the  vendor  to  retain  possession  as 
a  lien  for  the  price  gone?  Or  in  the  event  of  a  subsequent  discover}*  of 
a  defect  in  the  quantum  or  quality  of  the  goods,  has  B.,  in  the  absence 
of  all  acts  on  his  part  showing  an  ultimate  acceptance  of  the  possession, 
concluded  himself  from  taking  any  objection?  I  think  not.  As  Justice 
Cowen  remarks  in  the  case  of  Archer  v.  Zeh,  5  Hill,  205,  "One  object 
of  the  statute  was  to  prevent  perjury.  The  method  taken  was  to  have 
something  done,  not  to  rest  everything  on  mere  oral  agreement."  The 
acts  of  the  parties  must  be  of  such  a  character  as  to  unequivocally  place 
the  property  within  the  power  and  under  the  exclusive  dominion  of  the 
buyer.  This  is  the  doctrine  of  those  cases  that  have  carried  the  princi- 
ple of  constructive  delivery  to  the  utmost  limit.  Thus  in  Searle  v. 
Keeves,  2  Esp.  R.  598,  a  case  which  arose  at  a  period  when  the  English 
courts  were  more  inclined  than  recently  to  allow  of  a  constructive  deliv- 
ery and  acceptance,  where  a  written  order  was  given  by  the  seller  of 
goods  to  the  buyer,  directing  the  person  in  whose  care  the  goods  were 
to  deliver  them,  which  order  was  presented  by  the  buyer,  it  was  held 
that  there  was  sufficient  delivery  within  the  statute.  So  also  in  Ilollings- 
worth  v.  Napier,  3  Caines  R.  1-S2,  where  the  vendor  delivered  to  his 
vendee  a  bill  of  parcels  for  goods  lying  in  a  public  store,  together  with 
an  order  on  the  storekeeper  for  their  delivery,  and  the  vendee  upon 
delivering  the  order  demanded  the  goods,  which  were  turned  out  to  him, 
and  he  paid  the  amount  of  the  storage,  marked  the  bales  with  his  ini- 
tials, and  returned  them  to  the  custody  of  the  storekeeper,  it  was  held 


SECT.  V.]  SIIINDLER    V.    HOUSTON.  827 

that  the  statute  was  satisfied.  But  in  cases  like  these  it  would  seem 
now  to  be  necessary  that  the  party  having  the  custody  of  the  goods,  and 
who  is  the  agent  of  the  vendor,  should  recognize  the  order  given  to  the 
purchaser,  and  assent  to  retain  the  goods  for  bim.  A  delivery  to  the  ven- 
dee of  the  key  of  the  warehouse  in  which  the  goods  are  lodged,  or  other 
indicia  of  property,  where  goods  are  ponderous  and  incapable  of  being 
handed  over  from  one  to  another,  was  said  by  Lord  Kenyon  in  Chaplin  v. 
Rogers  to  be  tantamount  to  an  actual  delivery.  In  Dodsley  v.  Varley, 
12  Adol.  &  Ellis,  G32,  which  was  an  action  of  assumpsit  for  wool  bar- 
gained and  sold,  the  court  said  :  "We  think  that  upon  the  evidence  the 
place  to  which  the  wool  was  removed  may  be  considered  as  the  defend- 
ant's warehouse,  and  that  he  was  in  actual  possession  of  it  as  soon  as  it 
was  weighed  and  packed."  In  these  cases,  and  in  a  large  number  of 
others  that  might  be  cited,  the  circumstances  were  unequivocal  to  show 
not  merely  a  delivery  to  and  acceptance  of  the  property  in  the  goods, 
but,  what  is  always  essential,  a  complete  acceptance  of  the  possession 
by  the  buyer.  The  facts  were  more  or  less  strong  in  the  several  cases, 
but  the  acts  of  the  parties  can  scared}'  be  reconciled  with  any  other 
presumption. 

On  the  other  hand,  where  the  acts  of  the  buyer  are  equivocal,  and  do 
not  lead  irresistibly  to  the  conclusion  that  there  has  been  a  transfer  and 
acceptance  of  the  possession,  the  cases  qualify  the  inference  to  be  drawn 
from  them,  and  hold  the  contract  to  be  within  the  statute.  In  Baldey 
v.  Parker,  2  B.  &  C.  37,  A.  purchased  of  B.,  a  trader,  several  articles 
amounting  in  the  whole  to  £70.  A.  marked  with  a  pencil  some  of  the 
articles,  saw  others  marked,  and  helped  to  cut  off  others.  He  then  re- 
quested that  a  bill  of  the  goods  might  be  sent  to  him,  which  was  done, 
together  with  the  goods  ;  but  he  declined  to  accept  them.  It  was  held 
that  there  was  no  delivery  and  acceptance  to  take  the  case  out  of  the 
statute  ;  and  Lord  C.  J.  Abbott,  in  speaking  of  the  exception  in  the 
statute,  justly  remarked  that  it  "would  be  difficult  to  find  words  more 
distinctly  denoting  an  actual  transfer  of  the  article  from  the  seller,  and 
an  actual  taking  possession  of  it  by  the  buyer."  In  Carter  v.  Toussaint, 
5  Barn.  &  Aid.  855,  the  circumstances  were  that  a  horse  was  sold  by 
verbal  contract,  but  no  time  fixed  for  the  payment  of  the  price.  The 
horse  was  to  remain  with  the  vendor  for  twenty  days  without  charge  to 
the  vendee.  At  the  expiration  of  that  time  he  was  sent  to  grass  by 
order  of  the  vendee,  and  entered  as  one  of  the  vendor's  horses.  The 
court  held  that  there  was  no  acceptance  of  the  horse  by  the  vendee 
within  the  meaning  of  the  statute.  In  Tempest  v.  Fitzgerald,  3  Bain. 
^V  Aid.  680,  A.  agreed  to  purchase  a  horse  from  B.  for  cash,  and  take 
him  away  within  a  certain  time.  About  the  expiration  of  that  time  A. 
rode  the  horse  and  gave  directions  as  to  his  treatment,  &c.,  but  requested 
thai  he  might  remain  in  the  possession  of  B.  for  a  further  time,  at  the 
expiration  of  which  time  he  promised  to  take  and  pay  for  the  horse,  to 
which  B.  assented.  The  horse  died  before  A.  paid  the  price  or  took  it 
away.     It  was  held  that  there  was  no  sufficient  acceptance  of  the  horse 


828  SHIXDLER   V.    HOUSTON.  [CHAP.  VI. 

to  render  the  vendee  liable  for  the  price.  In  Howe  v.  Palmer,  supra,  a 
vendee  publicly  agreed  at  a  public  market,  with  the  agent  of  the  vendor, 
to  purchase  twelve  bushels  of  tares  (then  in  the  vendor's  possession, 
constituting  part  of  a  larger  quantity  in  bulk)  to  remain  in  the  vendor's 
possession  until  called  for.  The  agent  on  his  return  home  measured 
and  set  apart  the  twelve  bushels.  It  was  held  that  in  this  case  there 
had  been  no  acceptance,  and  the  action  would  not  lie.  In  Kent  v.  Hus- 
kinson,  3  B.  &  P.  233,  A.  verbally  ordered  from  B.  a  bale  of  sponge, 
which  was  sent.  The  bale  was  opened  and  examined,  and  the  sponge 
returned  by  A.,  who  at  the  same  time  wrote  a  letter  to  B.  stating  that  he 
disapproved  thereof.  It  was  held  that  A.  had  not  accepted  the  goods. 
In  Proctor  v.  Jones,  supra,  it  was  said  that  the  marking  of  casks  of 
wine  sold  by  parol  and  lying  at  the  London  docks,  with  the  initials  of 
the  purchaser  at  his  request  and  in  his  presence,  was  not  a  sufficient 
acceptance  within  the  statute,  at  least  if  the  time  of  payment  had  not, 
when  the  casks  were  so  marked,  been  fixed.  In  Bailey  v.  Ogden,  3  John. 
R.  399,  an  agreement  with  the  vendor,  on  a  parol  contract  for  the  sale 
of  goods,  about  the  storage  of  the  goods,  and  the  delivery  by  him  of  the 
export  entry  to  the  agent  of  the  vendee,  were  held  not  to  be  sufficiently 
certain  to  amount  to  a  constructive  delivery  or  to  afford  an  indicium  of 
ownership.  Other  comparatively  recent  English  and  American  cases 
might  be  cited,  showing,  as  has  been  said  by  Mr.  Justice  Coleridge, 
that  "  the  tenor  of  modern  decisions  is  to  give  to  the  words  of  the  stat- 
ute their  fullest  effect,  and  not  to  allow,  so  far  as  it  is  possible,  of  any 
constructive  deliveries  and  acceptances." 

I  think  I  may  affirm  with  safety  that  the  doctrine  is  now  clearly  settled 
that  there  must  not  only  be  a  delivery  by  the  seller,  but  an  ultimate 
acceptance  of  the  possession  of  the  goods  by  the  buyer,  and  that  this 
delivery  and  acceptance  can  only  be  evinced  by  unequivocal  acts  inde- 
pendent of  the  proof  of  the  contract.  But  if  the  principles  to  be  deduced 
from  the  recent  decisions  were  otherwise,  I  should  not  be  disposed,  in 
the  face  of  the  plain  and  obvious  meaning  of  the  statute,  to  follow  them. 
The  Statute  of  Frauds  of  29  Car.  2  (and  it  is  in  substance  re-enacted  in 
this  State)  was  justly  pronounced  nearly  half  a  century  since,  by  an 
eminent  British  judge,  "  one  of  the  wisest  laws  in  the  statute-book."  Its 
provisions  appby  with  singular  wisdom  and  beneficence  "  to  the  daily 
contracts  and  practical  affairs  of  mankind,"  relieving  them  of  vagueness 
and  uncertainty,  and  checking  to  some  extent  "the  restless  and  reckless 
spirit  of  litigation."  Whilst  this  meritorious  law  is  in  the  statute-book 
it  is  our  business  to  enforce  it  in  good  faith,  and  according  to  its  plain 
letter  and  spirit,  without  studying  to  fritter  away  its  vitality  in  the  at- 
tempt to  uphold  contracts  which  by  its  provisions  are  clearly  void. 

I  am  of  the  opinion  that  the  judgment  of  the  Supreme  Court  should 
be  reversed. 

Ri  ogles,  Jones,  and  Johnson,  JJ.,  concurred. 

.Ii.winx,  C.  J.,  and  Gkay,  J.,  delivered  opinions  in  favor  of  affirming 
the  judgment.  Judgment  reversed} 

1  Gakuineu  and  Bkoxson,  JJ.,  delivered  concurring  opinions. 


SECT.  V.]  RODGERS   V.    PHILLIPS.  829 


WILLIAM  M.  RODGERS  and  DILLER  LUTHER,  Respondents, 
v.  LEWIS  PHILLIPS  and  FREDERICK  C.  OAKLEY,  Appel- 
lants. 

New  Yokk  Court  of  Appeals,  June  14,  1869. 

[Reportedin  40  New  York  Reports,  519.] 

Tins  action  was  brought  to  recover  the  purchase-price  of  188  tons 
of  coal,  amounting  to  the  sum  of  $651.30.  The  coal  was  contracted 
to  be  sold  by  the  plaintiffs  to  the  defendants  by  an  oral  agreement 
entered  into  prior  to  the  26th  day  of  June,  1858.  By  the  terms  of  this 
agreement  it  was  to  be  shipped  on  board  a  boat  at  Richmond  in  the 
State  of  Pennsylvania  for  the  defendants,  and  to  be  carried  from  there 
to  Twenty-eighth  Street  on  the  East  River  in  the  city  of  New  York  ; 
the  defendants  paying  the  freight  for  the  same.  The  coal  was  shipped 
by  the  plaintiffs  on  board  the  coal-boat  I.  K.  Smith  at  Richmond,  for 
the  defendants,  on  Saturday  the  26th  day  of  June,  1858  ;  and  a  bill 
of  lading  taken  from  the  master,  by  which  the  coal  was  to  be  delivered 
at  Twenty-eighth  Street,  on  the  East  River  side  of  the  city  of  New 
York,  to  the  defendants  upon  the  payment  of  the  freight  by  them. 
During  the  afternoon  of  the  da}'  when  the  coal  was  laden  upon  the 
boat,  she  commenced  leaking,  and  finally  sank  ou  the  morning  of  the 
following  day.  The  boat  and  cargo  remained  in  the  water  where  they 
sank  until  they  were  finally  removed  by  the  public  authorities  as 
obstructions  to  navigation.  On  Monday,  the  28th  of  June,  1858,  the 
plaintiffs,  who  kept  their  office  at  the  city  of  New  York,  received  the 
bill  of  lading  by  mail;  and  on  the  same  day  they  sent  it  with  an 
invoice  of  the  coal  to  the  defendant's  office.  The  invoice  consisted 
of  an  unsubscribed  bill  of  the  coal.  On  Tuesday,  the  29th,  the 
defendant  Oakley,  together  with  Mr.  Harriott,  the  secretary  of  the 
Brevoort  Insurance  Company,  called  at  the  plaintiff's  office,  and 
inquired  of  Mr.  Rodgers,  one  of  the  plaintiffs,  concerning  the  condition 
of  the  boat ;  how  she  had  sunk,  the  cost  of  raising  her,  and  what  he 
could  do  it  for.  He  answered  that  he  could  give  no  information  in 
regard  to  the  matter.  Another  witness,  Hubbard,  who  was  present  at 
the  same  interview,  stated  that  he  understood  from  the  conversation 
that  Harriott  was  to  go  to  Philadelphia  to  see  about  raising  the  vessel. 
The  next  day  but  one  succeeding  this  interview,  which  was  the  1st  day 
of  July,  the  defendants  sent  back  the  bill  of  lading  to  the  plaintiffs  ; 
and  they  returned  it  to  the  defendants  the  same  day  in  a  letter,  saying 
that  they  had  nothing  to  do  with  it.  Upon  this  evidence  the  defend- 
ants moved  for  a  nonsuit  on  the  ground  that  no  valid  sale  was  estab- 
lished under  the  Statute  of  Frauds.  The  motion  was  denied  and  the 
defendants  excepted.  In  addition  to  proving  the  condition  of  the 
boat  at  the  time  the  coal  was  placed  on  board  of  her,  and  the  manner 
of  her  sinking,  the  defendants  proved  by  the  defendant  Oakley  that  he 


S30  KODGERS    V.    PHILLIPS.  [CHAP.  VI. 

was  a  director  in  the  Brevoort  Insurance  Company,  and  that  on  the 
receipt  of  the  bill  of  lading  he  went  to  the  office  of  that  company  and 
tried  to  effect  an  insurance  on  the  coal.  The  insurance  was  refused 
on  the  ground  that  the  boat  was  rated  on  the  company's  books  as 
twelve  years  old  and  notoriously  rotten.  After  hearing  of  the  sinking 
of  the  boat,  Harriott,  who  went  to  the  plaintiff's  office  with  the 
defendant  Oakley  on  Tuesday,  went  to  Philadelphia  and  attended  to 
the  matter.  What  he  did  beyond  inquiring  into  the  condition  of  the 
boat  was  not  made  to  appear.  The  proofs  were  thereupon  closed  ;  and 
the  court  refused  to  allow  the  defendant's  counsel  to  go  to  the  jury  on 
the  questions  of  fact  involved  in  the  case,  on  the  ground  that  the 
defendants  had  failed  to  make  out  any  defence  to  the  action,  and 
directed  a  verdict  for  the  plaintiffs.  The  defendants  excepted  to  the 
decision  and  direction  of  the  court.  Upon  the  hearing  of  the  excep- 
tions at  the  general  term,  judgment  was  directed  for  the  plaintiffs  ;  and 
when  that  was  entered  the  defendants  appealed  to  this  court. 

William  II  Scott,  for  the  appellants. 

J.  li.  Whiting,  for  the  respondent. 

Daniels,  J.  A  large  portion  of  the  evidence  contained  in  the  case 
was  given  upon  the  trial  for  the  purpose  of  showing  that  the  plaintiffs 
had  negligently  misconducted  themselves  in  lading  the  coal  upon  an 
unsafe  and  unseaworthy  vessel ;  and  that  in  consequence  of  that  mis- 
conduct the  coal  had  been  lost.  This  defence  was  properly  rejected 
by  the  court  for  the  reason  that  it  had  not  been  set  forth  in  the 
answer. 

The  disposition  which  should  now  be  made  of  the  controversy  will 
therefore  depend  entirely  upon  the  sufficiency  of  the  evidence  given 
upon  the  trial  to  establish  the  fact  that  the  coal  had  been  delivered  to 
and  accepted  by  the  defendants.  The  contract  for  the  sale  of  it  was 
within  the  Statute  of  Frauds;  and  on  that  account,  as  it  was  not  in 
writing  and  nothing  had  been  paid  upon  it,  by  the  direct  terms  of  that 
statute  it  was  void.  Although  the  plaintiffs  did  perform  all  that  would 
have  been  requisite  to  transfer  the  title  to  the  coal  to  the  purchasers 
under  the  well-established  rule  of  the  common  law,  it  does  not  follow 
that  what  they  did  would  be  attended  with  the  same  result  under  the 
rule  prescribed  by  the  statute.  Where  a  valid  and  subsisting  contract 
for  the  sale  of  personal  propert}'  ma}'  be  shown  to  exist,  and  by  its 
terms  the  property  is  to  be  shipped  by  the  vendor  to  the  vendee,  then 
a  deliveiy  of  it  to  a  responsible  carrier  for  the  vendee,  to  be  carried 
and  delivered  to  him,  will  ordinarily  transfer  the  title  to  the  vendee 
and  place  the  property  at  his  risk.  But  this  rule  requires  that  the 
i  out i act  between  the  parties  shall  be  at  the  time  legal,  valid,  and  sub- 
sisting. It  does  not  include  cases  like  the  present  one,  where  on 
account  of  a  failure  to  comply  with  the  positive  rule  prescribed  by  the 
statute  the  contract  is  void,  and  must  remain  so  until  some  act  has 
been  performed  that  will  have  the  effect  of  giving  it  legal  validity. 
In  cases  like  the  present  one  it  is  the  statute,  and   not  the  common 


SECT.  V.]  RODGERS   V.    PHILLIPS.  831 

law,  that  has  provided  the  mode  by  which  the  previously  void  agree- 
ment could  be  rendered  legal  and  binding  upon  the  parties.  And  that 
mode  musl  be  pursued;  otherwise  the  agreement  must  remain  without 
any  binding  force  upon  either  of  the  parties.  Until  that  may  be  done 
the  contract  must  remain  entirely  optional  on  the  part  of*  each  of 
the  parties.  Even  if  the  vendors  elected  to  perform  it,  and  deliver  the 
property  precisely  as  they  had  agreed  to,  it  was  still  optional  with  the 
vendees  whether  they  would  receive  it  or  not.  And  even  if  the  former 
went  so  far  as  to  actually  deliver  it,  the  vendees  still  had  their  election 
to  either  receive  or  refuse  it. 

This  resulted  from  the  unequivocal  terms  made  use  of  in  the  statute. 
They  required  that  the  vendees,  under  such  a  contract  as  was  shown 
upon  the  trial  of  this  cause,  should  not  only  receive,  but  in  addition  to 
that  accept  part  of  the  property  contracted  to  be  sold  to  them,  in 
order  to  render  the  contract  binding  upon  them  in  law.  Where  the 
contract  or  a  note  or  memorandum  of  it  has  not  been  reduced  to  writ- 
ing and  subscribed  by  the  parties  to  be  charged  by  it,  and  no  part  of 
the  purchase-price  has  been  paid,  then  the  statute  declares  it  to  be  void 
where  the  price  amounts  to  the  sum  of  $50  or  upwards,  unless  "  the 
buyer  shall  accept  and  receive  part  of  such  goods."  3  Rev.  Sts.  (5th 
ed.)  222,  subd.  2  of  §  3.  This  statute  is  in  substance  the  same  as  the, 
previously  existing  English  statute,  and  they  have  both  been  regarded 
as  identical  in  the  change  they  have  produced  in  the  common-law  rule. 

By  the  construction  they  have  received,  and  which  their  language 
manifestly  required,  a  mere  delivery  of  the  property  contracted  to  be 
sold  by  the  terms  of  the  void  contract  has  been  held  to  be  insufficient 
to  vest  the  title  to  it  in  or  place  it  at  the  risk  of  the  vendee.  But 
bevond  that  it  became  necessary,  under  the  rule  adopted  by  the  statute, 
that  some  part  of  the  property  should  not  only  be  delivered  and  received 
by  the  vendee,  but  that  it  should  also  be  accepted  by  him.  This  accept- 
ance of  it  involved  something  more  than  the  act  of  the  vendor  in  the 
delivery.  It  required  that  the  vendee  should  also  act,  and  that  his  act 
should  be  of  such  a  nature  as  to  indicate  that  he  received  and  accepted 
the  goods  delivered  as  his  property.  He  must  receive  and  retain  the 
articles  delivered,  intending  thereby  to  assume  the  title  to  them,  to  con- 
stitute the  acceptance  mentioned  in  the  statute  ;  when  that  has  been 
done  then  for  the  first  time  the  void  contract  becomes  valid  and  obliga- 
tory upon  the  parties  to  it. 

This  rule  of  construction  was  adopted  at  an  early  day  by  the  English 
courts.  Tempest  v.  Fitzgerald,  3  Barn.  &  Aid.  680,  5  E.  C.  L.  419  : 
(arter  v.  Toussaint,  5  Barn.  &  Aid.  855  ;  Baldey  v.  Parker,  2  Bam.  & 
C.  37,  9  E.  C  L.  16,  17.  And  since  then  it  has  been  approved  and 
applied  by  this  court  to  the  statute  existing  upon  this  subject  in  this 
State.  Shindler  v.  Houston,  1  Comst.  261.  In  the  decision  of  that 
ease  Judge  Gardiner  stated  the  English  rule  as  requiring  that  "  there 
must  be  a  delivery  by  the  vendor,  with  an  intention  of  vesting  the 
right  of  possession  in  the  vendee,  and  there  must  be  an  actual  accept- 


832  RODGERS    V.    PHILLIPS.  [CHAP.  VI. 

ance  by  the  latter  with  the  intent  of  taking  possession  as  owner."  He 
then  adds  :  "  This  I  apprehend  is  the  correct  rule,  and  it  is  obvious  that 
it  can  only  be  satisfied  by  something  done  subsequent  to  the  sale 
unequivocally  indicating  the  mutual  intentions  of  the  parties."  Id. 
265.  Judge  Wright  said  "  that  the  acts  of  the  parties  must  be  of 
such  a  character  as  to  unequivocalby  place  the  property  within  the 
power  and  under  the  exclusive  dominion  of  the  buyer."  Where  the 
acts  of  the  buyer  are  equivocal,  and  do  not  lead  irresistibly  to  the  con- 
clusion that  there  has  been  a  transfer  and  acceptance  of  the  possession, 
the  cases  qualify  the  inference  to  be  drawn  from  them,  and  hold  the 
contract  to  be  within  the  statute.  Id.  270,  271.  And  to  this  effect 
is  the  case  of  Denn}'  v.  Williams,  5  Allen,  1.  This  it  will  be  per- 
ceived is  very  decided  language,  but  no  more  so  certainly  than  was 
used  in  the  enactment  of  the  statute  to  which  it  was  applied.  And  it 
was  afterwards  followed  and  again  applied  in  deciding  the  case  of 
Brabin  v.  Hyde,  32  N.  Y.  519. 

The  question  in  this  case  therefore  is,  whether  such  an  acceptance  of 
the  coal  by  the  defendants  was  shown  as  placed  it  at  their  risk  at  the 
time  when  it  was  lost  by  the  sinking  of  the  vessel  it  was  laden  upon. 
And,  for  the  purpose  of  considering  and  deciding  it,  this  case  must  be 
distinguished  from  those  where  the  property  contracted  to  be  sold  was 
delivered  to  a  particular  carrier  designated  and  selected  by  the  vendee 
for  the  purpose  of  receiving  and  accepting  it.  For  in  those  cases  the 
carrier  b}'  the  act  of  the  vendee  became  his  agent,  and  bound  him  by 
the  receipt  and  acceptance  of  the  propert}\  Dawes  v.  Peck,  8  Term, 
330;  Waldron  v.  Romaine,  22  N.  Y.  368;  Bushel  v.  Wheeler,  15  Ad. 
&  Ellis,  (n.  s.)  442.  This  case  differs  from  those  in  the  circumstance 
that  no  such  designation  or  selection  was  made  by  the  defendants. 
The  carrier  to  whom  the  property  was  delivered  to  be  carried  to  the 
defendants  was  selected  by  the  plaintiffs.  The  defendants  in  no  man- 
ner authorized  or  participated  in  it  be}"ond  the  void  authority  conferred 
by  the  terms  of  their  void  contract.  Being  void,  as  it  was,  the  plain- 
tiffs could  not  avail  themselves  of  its  terms  for  the  purpose  of  binding 
or  concluding  the  defendants  by  what  they  did  under  it.  Whatever 
they  did  towards  the  performance  of  the  contract  they  did  for  them- 
selves, and  at  their  own  risk,  until  the  defendants  elected  to  change 
the  risk,  and  did  change  it  by  the  acceptance  of  the  property  men- 
tioned in  the  statute  ;  what  the  evidence  showed  was  a  selection  of 
the  carrier  by  the  plaintiffs,  and  a  delivery  of  the  coal  to  him,  not  an 
acceptance  of  it  by  the  defendants.  That  acceptance  required  some 
act  on  the  part  of  the  vendees  to  constitute  it,  performed  after  the  coal 
had  been  separated  from  the  mass,  and  placed  in  such  a  condition  as 
rendered  that  particular  quantit}*  capable  of  being  accepted  by  the 
defendants.  The  evidence  not  only  failed  to  show  the  performance  of 
any  act  of  acceptance  on  the  part  of  the  defendants,  but  beyond  that 
it  appeared  thai  they  did  not  hear  of  its  shipment  until  the  vessel  it 
was  laden  upon  had  sunk  to  the  bottom  of  the  Schuylkill.     There  was 


SECT.  V.]  RODGEBS    V.    PHILLIPS.  833 

nothing  therefore  in  the  case  from  which  the  defendants  could  be 
deemed  to  have  accepted  the  coal  at  that  time.  It  consequently  con- 
tinued to  be  the  plaintiffs  property,  remaining  at  their  risk  ;  and  it  was 
their  loss  when  the  vessel  Mink  after  it  had  been  laden  on  board  of  her. 
And  if  the  carrier  became  liable  for  the  loss,  his  liability  was  to  the 
plaintiffs,  not  to  the  defendants.  That  a  mere  delivery  of  property  to 
a  carrier  selected  to  receive  and  carry  it  by  the  vendors  will  in  no  leg  I 
sense  constitute  an  acceptance  of  it  by  the  vendee,  and  for  that  reason 
exclude  the  case  from  the  operation  of  the  statute,  has  been  distinctly 
held  in  several  adjudged  and  well-considered  decisions.  This  point 
was  directly  presented  in  the  case  of  Maxwell  v.  Brown,  39  Maine,  98  ; 
and  after  an  examination  and  reference  to  English  authorities  the  court 
held  that  the  delivery  to  the  carrier  was  insufficient  to  show  an  accept- 
ance by  the  vendee.  The  same  point  arose,  under  slightly  different 
circumstances,  in  the  case  of  Frostburg  Mining  Company  v.  New 
England  Glass  Co.,  9  Cush.  115;  and  it  was  disposed  of  in  the  same 
way.  And  a  delivery  to  a  carrier  selected  by  the  vendor  for  the  trans- 
portation of  the  property,  where  that  was  done  in  conformity  to  the 
terms  of  the  void  contract,  was  held  to  be  in  no  sense  an  acceptance  by 
the  vendee,  in  the  cases  of  Hanson  v.  Armitage,  7  Eng.  C.  L.  191  ; 
Acebal  v.  Levy,  25  id.  170;  Meredith  v.  Meigh,  7.">  id.  363;  Coats  v. 
Chaplin,  43  id.  831  ;  Norman  v.  Phillips,  14  Mees.  &  Wels.  278  ;  Farina 
v.  Home,  1G  id.  119;  Coombs  v.  Bristol,  &c.  Railway  Co.,  3  Hurl  & 
Nor.  510  ;  Hart  v.  Bush,  Ellis,  B.  &  Ellis,  494.  And  the  cases  of  Howe 
v.  Palmer.  5  Eng.  C.  L.  303;  Bentall  y,  Burn.  10  id.  138;  Hunt  v. 
Hecht,  20  Eng.  Law  and  Eq.  f>24  ;  Holmes  v.  Haskins,  28  id.  564  ; 
and  Castle  v.  Sworder,  5  Hurl.  &  Nor.  281,  —  though  differing  in  their 
circumstances,  are  in  substance  to  the  same  effect. 

Up  to  the  time  when  the  coal  was  lost  by  the  sinking  of  the  vessel 
having  it  on  board,  no  act  was  performed  by  the  defendants  from  which 
it  could  be  even  colorably  claimed  that  they  had  accepted  the  coal  or 
become  invested  with  the  title  to  it.  For  it  was  not  until  the  day  after- 
wards that  the  invoice  and  bill  of  hading  were  delivered  to  them  ;  and 
then  the  rights  of  the  parties  had  become  fixed  by  the  loss  of  the 
property.  The  loss  was  then  that  of  the  plaintiffs,  and  nothing  after- 
wards transpired  warranting  the  conclusion  that  the  defendants  intend*  d 
to  shift  it  and  impose  it  upon  themselves. 

Assuming,  as  it  may  properly  be  done,  that  the  acceptance  of  the 
bill  of  lading  by  the  defendants  under  ordinary  circumstances  would 
have  been  equivalent  to  the  acceptance  of  the  property  mentioned  in 
it,  yet  that  could  not  be  the  effect  of  it  where,  as  in  this  case,  the  prop- 
erty had  been  previously  lost.  Certainly  not.  unless  the  acceptance 
was  made  with  knowledge  of  the  circumstances  affecting  the  propriety 
of  it  existing  at  the  time  it  occurred. 

But  even  if  it  could  have  produced  that  result,  something  more 
would  have  to  l>e  shown  for  the  purpose  of  establishing  the  acceptance 
than  was  done  upon  the  trial  of  this  action.      What  transpired   when 

■ 


S34  RODGERS   V.    PHILLIPS.  [CHAR  VI. 

the  bill  of  lading  was  left  at  the  defendants'  office  was  not  made  to 
appear.  All  that  was  shown  upon  the  subject  of  an  acceptance  of  it 
was  that  one  of  the  defendants  after  its  receipt  applied  for  an  insur- 
ance upon  the  coal,  and  failed  to  procure  it  on  account  of  the  unsea- 
worthy  character  of  the  vessel  upon  which  the  plaintiff  had  placed  it. 
This  was  clearly  insufficient  for  that  purpose,  because  it  did  not  show 
that  the  defendants  had  dealt  with  the  property  as  their  own,  but 
merely  that  they  had  attempted  to  do  so  and  failed.  What  they  did 
in  this  respect  was  done  before  they  had  received  any  intelligence  of 
the  misfortune  to  the  property.  And  even  if  prior  to  that  time  they 
had  determined  to  accept  the  shipment  by  accepting  the  bill  of  lading 
upon  the  supposition  and  belief  that  the  property  was  then  afloat,  they 
became  at  liberty  to  rescind  their  determination  and  refuse  to  receive 
it  as  soon  as  they  discovered  that  it  had  been  formed  under  a  mistake 
of  a  material  fact  affecting  it.  When  that  fact  was  discovered  an 
interview  took  place  between  one  of  the  defendants  and  one  of  the 
plaintiffs,  but  nothing  was  settled  by  what  then  occurred.  After  that 
Mr.  Harriott  was  sent  to  Philadelphia  by  the  defendants,  and  he  testi- 
fied that  he  attended  to  the  matter.  But  what  he  did  beyond  inquiring 
into  the  condition  of  the  boat  was  neither  stated  by  himself  nor  by 
any  other  witness.  Neither  of  these  circumstances,  nor  all  of  them 
combined,  so  far  tended  to  prove  an  acceptance  of  the  property  as  to 
justify  the  court  in  leaving  that  fact  to  the  consideration  and  decision 
of  the  jury.  When  the  additional  circumstance  is  borne  in  mind  that 
on  Thursday  of  the  same  week  the  defendants  sent  back  the  bill  of 
lading  to  the  plaintiffs,  it  will  be  perceived  that  there  was  absolutely 
nothing  from  which  an  acceptance  of  the  property  shipped  could  be 
even  plausibly  maintained. 

At  the  time  the  bill  of  lading  was  delivered  to  them  they  had  a  rea- 
sonable time,  after  ascertaining  the  circumstances,  in  which  to  deter- 
mine whether  they  would  accept  or  reject  it,  the  same  as  they  would 
have  had  upon  an  actual  delivery  of  the  property  itself,  for  which  the 
bill  was  merely  a  substitute.  Within  that  time  they  rejected  and  re- 
turned it  to  the  plaintiffs,  which  plainly  left  the  transaction  invalid  as  a 
sale  under  the  direct  prohibition  of  the  statute.  In  this  respect  the  case 
had  no  more  foundation  for  its  support  than  Norman  v.  Phillips.  Farina 
v.  Home,  and  Coats  v.  Chaplin,  supra,  and  Pill  v.  Bament,  9  Mees.  & 
W.  36,  had,  in  which  it  was  held  that  no  acceptance  of  the  property 
by  the  buyer  could  be  inferred. 

The;  court  at  the  trial  erred  in  refusing  to  nonsuit  the  plaintiffs  and 
in  directing  a  verdict  against  the  defendants.  The  judgment  should  be 
reversed  and  a  new  trial  ordered. 

Woodruff,  J.  The  question  in  this  case,  the  decision  of  which  is 
conclusive  between  the  parties,  is  whether  a  delivery  of  goods  to  a 
general  carrier,  in  pursuance  of  the  order  of  a  proposed  purchaser,  to 
Li'  transported  to  him,  is  such  a  consummation  of  the  contract  of  sale  as 
dispenses  with  a  writing  and  takes  the  transaction  out  of  the  operation 
of  the  Statute  of  Frauds. 


SECT.  V.]  RODGERS   V.    PHILLIPS.  835 

The  defendants  in  New  York  gave  verbal  orders  for  175  to  200  tons 
of  coal,  and  directed  that  it  be  delivered  "  on  board  at  Richmond  (near 
Philadelphia)  in  the  customary  manner,"  no  particular  boat  or  ba 
being  designated. 

The  plaintiffs  shipped  188  tons,  lading  it  upon  the  coal  barge  I.  K. 
Smith,  received  a  bill  of  lading  therefor,  whereby  the  coal  was  made 
deliverable  to  the  defendants,  they  paying  freight,  and  forwarded  the 
bill  of  lading  to  the  defendants.  Within  a  few  hours  after  the  coal  was 
placed  on  board,  and  before  leaving  on  her  voyage,  the  barge  sprung  a 
leak  and  was  sunk  with  the  coal  on  board. 

The  defendants  received  the  bill  of  lading  on  Monday,  June  28,  I 
on  receiving  information  of  the  sinking  of  the  barge  the  defendants  sent 
an  agent  t<>  Richmond  to  learn  the  facts,  and  on  Thursday  returned  the 
bill  of  lading,  denying  their  liability  to  pay  for  the  coal. 

In  accordance  with  the  general  rule,  that  where  goods  are  purchased 
to  be  shipped  or  sent  to  the  buyer  a  delivery  to  the  carrier,  whether 
he  be  a  general  carrier  or  one  specially  designated  by  the  buyer,  con- 
stitutes performance  by  the  seller,  is  a  sufficient  delivery,  vests  the 
title  to  the  goods  in  the  buyer  (subject  to  the  right  of  stoppage  in 
transitu ).  and  places  the  goods  at  his  risk,  the  Supreme  Court  held  the 
plaintiffs  entitled  to  recover. 

This  general  rule  is  unquestionable  ;  and  the  numerous  cases  cited 
by  the  counsel  for  the  respondents,  on  the  argument  of  this  appeal,  are 
full  and  conclusive.  It  is  quite  sufficient  to  mention  Ludlow  v.  Browne 
et  "'..  1  Johns.  R.  15;  The  People  v.  Haynes.  14  Wend.  5G2  ;  Hague 
et  al.  v.  Porter,  3  Hill,  HI  ;  Waldron  v.  Romaine.  '22  X.  Y.  368  ; 
Dawes  v.  Peck,  8  T.  R.  330;  Dutton  v.  Solomonson,  3  Bos.  &  Pull. 
584  ;  and  cases  incidentally  considered  in  Harris  <\  Hart,  G  Diicr,  606  : 
and   Holbrook  et  <d.  r.  Yose  etal.^  6  Bosw.  104. 

But  the  decision  below  overlooks  the  fact  that  the  Statute  of  Frauds 
requires  the  acceptance  and  receipt  of  the  goods  as  well  as  the  delivery  ; 
and  without  these  there  is  no  binding  contract  of  sale. 

In  the  cases  referred  to  and  in  the  text-books,  where  the  question  is 
what  constitutes  performance  by  the  vendor  or  delivery  so  as  to  vest 
title  and  place  the  goods  at  the  risk  of  the  buyer,  an  existing  landing 
agreement  or  purchase  is  assumed.  Here  the  inquiry  is.  whether  there 
is  a  binding  contract.  A  parol  agreement  of  purchase  the  statute 
declares  void  •'  unless  the  buyer  shall  accept  and  receive  part  of  such 
goods."  &c.     2  Rev.  Sts.  p.  135,  §  3.  subd.  2. 

The  rule  on  this  subject,  stated  by  Story  in  his  treatise  on  Sales  as 
established  by  the  authorities,  is  this:  "The  meaning  to  be  attached 
to  the  terms  'accept  and  receive'  is  that  the  purchaser  must  finally 
appropriate  to  himself  the  whole  or  a  part  of  the  goods.  To  create 
such  an  appropriation  as  that  contemplated  in  the  statute,  there  must 
be  not  only  such  an  actual  delivery  by  the  seller  as  to  destroy  all  fur- 
ther claim  of  lien  or  of  stoppage  in  transitu  on  his  part,  but  also  such 
an  actual  acceptance  by  the  buyer  as  to  (.Usable  him  from  objc 


836  RODGERS   V.   PHILLIPS.  [CHAP.  VI. 

the  quantity  or  quality  of  the  goods.  .  .  .  The  delivery  must  be  a 
complete  and  final  delivery,  and  the  acceptance  an  ultimate  acceptance, 
so  as  to  reduce  the  goods  to  the  actual  possession  of  the  vendee.  It 
follows  therefore  that  no  receipt  of  goods  by  a  carrier  or  middleman 
on  their  way  to  the  buyer  is  a  sufficient  acceptance,  unless  such  carrier 
or  middleman  be  the  general  agent  of  the  vendee  having  authority 
finally  to  accept  them."  This  broad  and  explicit  exposition  of  the 
acceptance  necessary  to  give  validity  to  the  contract,  and  stand  in  place 
of  a  writing,  is  founded  upon  numerous  English  cases  on  the  construc- 
tion of  the  statute  in  England,  from  which  ours  is  copied.  Baldey  v. 
Parker,  2  Barn.  &  Cres.  44  ;  Phillips  v.  Bistolli,  id.  513  ;  Smith  v.  Sur- 
man,  9  Barn.  &  Cres.  561 ;  Carter  v.  Toussaint,  5  Barn.  &  Aid.  858  ; 
Kent  v.  Huskinson,  3  B.  &  P.  233  ;  Hanson  v.  Armitage,  5  Barn.  & 
Aid.  557  ;  Astey  y.  Emery,  4  Maule  &  Selw.  264  ;  Howe  v.  Palmer,  3 
B.  &  A.  321  ;  Johnson  v.  Dodgson,  2  Mees.  &  Wels.  656. 

Obviously  this  rule  is  decisive  of  the  question  in  this  case.  Indeed 
it  is  wholly  unnecessary  to  go  to  so  great  length  for  the  purposes  of 
this  case. 

Addison,  in  his  treatise  on  Contracts,  though  not  in  terms,  yet  in 
substance,  gives  the  like  exposition  of  the  force  and  effect  of  these 
terms  of  the  statute,  superadded  to  the  force  of  mere  delivery  where 
there  is  already  a  valid  contract  of  sale.  Add.  on  Cont.  pp.  243,  244, 
245. 

It  has  sometimes  been  argued  that  delivery  to  a  carrier  designated 
by  the  buyer  will  suffice  to  satisfy  the  statute,  although  delivery  to  a 
general  carrier  will  not ;  but  this  distinction  cannot  be  sustained  where 
the  carrier  has  no  other  authority  than  to  transport  the  goods.  In 
Acebal  v.  Levy,  10  Bing.  376,  the  delivery  was  on  board  of  a  ship  char- 
tered by  the  buyer,  and  yet  it  was  not  held  to  constitute  an  acceptance 
within  the  statute  ;  and  see  also  Meredith  v.  Meigh  et  al.,  2  Ellis  &  B. 
304. 

In  Shindler  v.  Houston,  1  Comst.  269,  Wright,  J.,  reviews  the  cases 
on  the  construction  of  these  terms  in  the  statute,  and  says:  "  The  best 
considered  cases  hold  that  there  must  be  a  vesting  of  the  possession  of 
1  lie  goods  in  the  vendee  as  absolute  owner,  discharged  of  all  lien  for 
th  •  price  on  the  part  of  the  vendor,  and  an  ultimate  acceptance  and 
receiving  of  the  property  by  the  vendee,  so  unequivocal  that  he  shall 
have  precluded  himself  from  taking  any  objection  to  the  quantum  or 
quality  of  the  goods  sold."  Chitty  on  Contracts,  3D0,  and  cases  cited  ; 
Milliard  on  Sales,  135,  and  cases  cited. 

The  proposition  thus  staled   is  in    unquestionable  conformity  to  the 

English  c  >ove  referred  to  :  but  the  Court  of  King's  Bench  in  Eng- 

I  in  Morton  v.  Tibbett  in  1850,  15  Ad.  &  El.  (n.  s.)  428,  while  they 

the  necessity  of  an  acceptance  to  satisfy  the  statute,  deny 

that  an  acceptance  which  will   satisfy  the  statute  necessarily   precludes 

rejection   of  the  goods  after  examination   and   denying  the   fact  of 

rformance  by  the  vendor. 


SECT.  V.]  STONE   V.    BROWNING.  837 

Lord  Campbell  reviews  the  previous  cases,  and  while  he  admits  the 
repeated  assertion  of  the  rule  as  above  stated  he  questions  its  sound- 
ness, and  linds  in  other  eases  some  warrant  for  his  qualification  of  the 
rule. 

But  the  rule,  that  there  must  be  something  more  than  such  a  delivery 
as  would  change  the  title  and  place  the  goods  at  the  risk  of  the  bu}"er 
if  the  contract  was  in  writing,  is  not  questioned.  It  is  sufficient  for  the 
purposes  of  this  case  to  say  that  a  delivery  to  a  general  carrier  not 
designated  by  the  buyer,  for  the  mere  purpose  of  transportation  to  him. 
does  not  constitute  an  acceptance  of  the  goods  within  the  Statute  of 
Frauds. 

In  Coombs  v.  Bristol  and  Exeter  Railway  Co.,  3  Hurl.  &  Norm.  510, 
in  1858,  the  subject  was  considered  at  length  in  the  English  Court  of 
Exchequer,  and  the  rule  reasserted.  See  also,  on  the  meaning  of  the 
term  "  receive,"  Farina  v.  Home,  16  Mees.  &  Wels.  119  :  Hart  '•.  Bush, 
4  Jur.  (n.  s.)  033  ;  Frostburg  Mining  Co.  v.  New  England  Glass  Co.. 
9  Cush.  115. 

The  judgment  is  clearly  erroneous.  The  defendants  never  accepted 
nor  received  the  goods  within  the  meaning  of  the  statute,  and  the 
defendants'  motion  for  a  nonsuit  should  have  been  granted. 

The  judgment  must  be  reversed. 

Mason  and  James,  JJ.,  concurred  in  Woodruffs  opinion. 

Grover,  J.,  was  for  reversal.  He  was  not  however  prepared  to 
concur  in  the  doctrine  of  Woodruffs  opinion  as  to  the.  case  of  a  carrier 
designated  by  the  vendee. 

Hunt.  C.  J.,  concurred  with  Grover,  J.  He  also  was  inclined  to 
think  that  the  fact  of  the  property  being  put  by  the  plaintiffs  on  board 
an  unseaworthy  vessel  was  a  material  circumstance  in  favor  of  the 
defendants. 

Lott,  J.,  dubitante,  did  not  vote. 

Judgment  reversed,  and  new  trial  ordered. 


STONE  v.  BROWNING. 
New  York  Commission  of  Appeals,  September  Term,  1872. 

[Reported  in  51  New  York,  211.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  first  judicial  district,  affirming  a  judgment  in  favor  of  plaintiffs 
entered  on  a  verdict. 

The  action  was  brought  to  recover  the  balance  of  the  purchase-money 
•  .I"  a  quantity  of  goods,  claimed  by  the  plaintiffs  to  have  been  sold  and 
delivered  by  them  to  the  defendants,  under  a  verbal  contract  of  sale. 

The  defendants  denied  the  allegation  in  the  complaint  in  reference  to 
the  sale  and  delivery.     They  also  set  up,  among  other  defences,  that 


833  STONE    V.    BKOWNING.  [CHAP.  VI. 

the  goods  were  sold  by  sample,  with  an  express  warranty  that  the 
goods  exhibited  were  fair  and  correct  samples  of  the  whole,  and  also 
that  tin,"  sale  was  within  the  Statute  of  Frauds  and  void. 

A  motion  was  made  to  dismiss  the  complaint  on  those,  among  other 
grounds,  when  the  plaintiffs  rested  their  ease,  and  again  at  the  close 
of  the  evidence.     The  motions  were  denied. 

The  defendants'  counsel  then  requested  the  court  to  charge  the  jury 
upon  several  distinct  propositions,  one  of  which  was  in  the  following 

terms  :  — 

••  Ninth.  If  you  find  the  defendants  never  intended  to,  and  did  not 
in  fact,  accept  the  goods  delivered,  then  your  verdict  should  be  for  the 
defendants,"  which  request  was  refused.  Exceptions  were  taken  to 
the  denial  of  the  motions  to  dismiss  the  complaint,  and  to  the  refusal 
to  charge  in  accordance  with  the  above  request. 

The  Jury  found  a  verdict  in  favor  of  the  plaintiffs,  and  a  judgment 
was  entered  thereon  accordingly.     Other  facts  appear  in  the  opinion. 
John  K.  Porter,  for  the  appellants. 
William   Tracy,  for  the  respondents. 

Kakl,  C.  Upon  the  trial  the  principal  questions  litigated  were, 
whether  the  cloth  was  sold  by  sample  with  a  warranty,  and  whether  it 
corresponded  with  the  sample.  These  questions  were  submitted  to  the 
jury,  and  were  really  the  only  questions  submitted  to  them,  and  as  to 
them  the  decision  of  the  jury  cannot  be  disturbed. 

I  am  of  opinion,  however,  that  the  contract  of  sale  was  void   by  the 
Statute  of  Frauds.     There  was  no  part  payment  of  the  purchase-money 
nor  note  or  memorandum  of  the  contract.     Hence  there  was  no  com- 
pliance   with    the    statute   unless   the   defendants    both    accepted    and 
received  the  cloth  purchased,  or  some  of  it.     It  was  not  sufficient  to 
answer  the  statute  that  the  cloth  was  delivered  to  the  defendants  ;  they 
must  also  have  accepted  it.     Cross  v.  O'Donnell,  44  N.  Y.  661.     A 
delivery  of  property  to  satisfy  the  requirements  of  the  Statute  of  Frauds 
must  be  a  delivery  by  the  vendor  with  the  intention  of  vesting  the  right 
of  possession  in  the  vendee,  and  there  must   be  an  actual  acceptance 
by  the  latter  with  the  intent  of  taking  possession  as  owner.     Brand  v. 
Focht,  3  Keyes,  409.     Judge  Wright,  in  Shindler  v.  Houston,  1  N.  Y. 
269,   says:    "The   best  considered   cases  hold  that  there   must  be  a 
vesting  of  the  possession  of  the  goods  in  the  vendee  as  absolute  owner, 
discharged  of  all  lien  for  the  price  on  the  part  of  the  vendor,  and  an 
ultimate   acceptance   and   receiving  of  the  property   by  the  vendee  so 
unequivocal   that  he  shall   have    precluded    himself  from    taking    any 
objection  to  the  quantities  or  quality  of  the  goods  sold."     In  Bill  v. 
Lament,  9  M.  &  \Y.  41,  Parke,  B.,  says:  kt  To  constitute  delivery,  the 
possession  must  have  been  parted  with  by  the  owner,  so  as  to  deprive 
him  of  the  right  of  lien."     In   Phillips  v.  Bistolli,  2  B.   &  Cr.  511,  it 
said  per  curiam :  "In  order  to  satisfy  the  statute,  there  must  be  a 
delivery  of  the  goods  by  the  vendor  with  the   intention   of  vesting  the 
righl  of  possession  in  the  vendee,  and  there  must  be  an  actual  accept- 


SECT.  V.] 


STONE   V.    BROWNING.  839 


ance  by  the  latter,  with  an  intention  of  taking  the  possession  as 
owner."  In  Kent  v.  Huskinson,  3  Bos.  &  Pul.  233,  it  was  held  that 
the  acceptance  must  be  an  ultimate  acceptance,  and  such  us  completely 
affirms  the  contract.  Id  Smith  v.  Surman,  9  B.  &  Cr.  561,  Parke,  B., 
Bays:  v-  The  later  cases  have  established  that  unless  there  has  been  such 
a  dealing  on  the  part  of  the  purchaser  us  to  deprive  him  of  any  right  to 
object  to  the  quantity  or  quality  of  the  goods,  or  to  deprive  the  seller 
of  his  right  of  lien,  there  cannot  he  any  part  acceptance."  See  also 
Howe  v.  Palmer,  3  15.  &  Aid.  321  ;  Hanson  v.  Annitage,  5  B.  &  Aid. 
[>:>!  ;  Story  on  Sales,  §  27(5. 

Within  the  principles  laid  down  in  the  above  authorities,  there  was 
not  in  this  case  any  ultimate  or  final  acceptance  of  the  cloth  by  the 
vendees.     Upon  this  point  there  is  no  conllict  in  the  evidence.     There 
Was  not  sufficient  opportunity  to  examine  the  cloth  while  it  was  in  the 
store   of  the  plaintiffs,  and   hence  it  was  arranged    that  it  should  be 
taken  to  the  store  of  the  defendants,  and  they  were  to  examine  it,  and 
if  they  were  satisfied  as  to  the  quantity  and  quality  of  the  cloth,  then 
they  were  to  give  their  notes  for  the  purchase-price.     They  did  take 
the  cloth  and  examine  it,  and  after  the  examination  refused  to  accept 
it.     There  is  no  evidence  whatever  that  they  ever  accepted   it  or  in- 
tended to  accept  it.     Bliss,  one  of  the  plaintiffs,  testified  that  Button, 
one  of  the  defendants,  at  the  time  of  the  negotiation  for  the  purchase 
of  the  cloth,  stated   that  he  could  not  examine  the  cloth  where  it  was. 
and  that  it  was  the  understanding  that  he  should  take  the  cloth  and 
examine  it  all  before  the  week  was  out,  and  then  give  defendants'  notes 
for  the  same.     Stone,  another  of  the  plaintiffs,  testified  the  defendants 
were  not  ready  to  receive  the  goods  then,  but  that  the  understanding 
was  that  they  were  to  take  them,  and  before  Wednesday  of  the  next 
week  examine   them,  for  the  purpose  of  seeing  whether  they  had  the 
quantity  and  quality  they  bargained  for.  and  were  then  to  give  then- 
notes  for  them.     Foy,  also  one  of  the  plaintiffs,  testified  that  he  wrote 
at  the  hottom  of  the  bill  of  sale  which  was  sent  to  the  defendants  the 
words  "to  be  examined  by  Wednesday  or  Thursday  of  next  week." 
We  thus  have  the  testimony  of  all  the  plaintiffs  concurring  that  the 
defendants  received  the  goods  only  for  examination,  and  the  testimony 
on   the  part  of  the  defendants  on   the  same   point  is  still  stronger. 
They  did  not  take  possession  of  the  goods  as  owners,  and   it  was  not 
the  intention  of  the  parties  that  the  title  to  them  should  vest  in  the 
defendants  before  they  examined  them  and  gave  their  notes.     In  other 
words,  it  was  not  an  executed  sale.     And  such  was  the  view  taken  of 
the  case  by  the  judge  at  the  circuit  in  his  charge  to  the  jury.     He 
charged  the   following  propositions:  — 

"  If  you  find  that  these  goods  were  warranted,  and  that  they  did  not 
conform  to  the  representations  made  by  the  plaintiffs,  you  will  find  a 
verdict  for  the  defendants." 

"  [f  you  find  that  the  plaintiffs  warranted  the  balance  of  the  goods 
to  correspond  as  to  quality  with  the  four  cases  shown  to  the  defendants 


840  STONE   V.    BROWNING.  [CHAP.  VI. 

on  the  sale,  and  that  those  delivered  did  not  so  correspond,  then  the 
defendants  were  not  bound  to  accept  them." 

"  If  you  find  that  the  goods  were  sold  by  sample,  and  that  the  bulk 
did  not  correspond  with  the  sample,  and  further,  that  the  defendants 
were  induced  to  keep  the  goods  over  the  week,  or  to  continue  the 
examination  of  the  goods  longer  than  they  would  have  done  but  for 
the  acts  of  the  plaintiffs,  then  the  defendants  had  a  right  to  return  the 
goods,  and  your  verdict  should  be  for  the  defendants." 

"  Although  the  defendants  agreed  to  examine  these  goods  within  one 
week,  yet  if  the  plaintiffs  requested  them  during  the  week  to  continue 
to  examine  more  of  the  goods,  then  defendants  were  entitled  to  a 
reasonable  time  to  make  such  further  examination,  and  if  such  exami- 
nation took  more  than  the  balance  of  the  week,  the  defendants  were 
still  entitled  to  return  them,  if  at  the  close  of  the  examination  they 
proved  to  be  inferior  to  the  samples." 

It  will  be  seen  that  the  judge  treated  this  as  an  executor}'  contract 
of  sale,  under  which  the  defendants  had  the  right  to  refuse  to  accept 
the  goods  if  the}-  did  not  conform  to  the  warranty,  in  case  the  jury 
found  one  had  been  made.  He  assumed  that  the  defendants  had  not 
accepted  the  goods,  but  he  charged  the  jury  in  substance  that  if  the 
defendants  purchased  without  warranty,  then  they  were  bound  to  ac- 
cept ;  and  if  they  purchased  with  a  warranty  and  the  goods  conformed 
to  the  warranty,  then  they  were  also  bound  to  accept :  and  if  there  was 
a  warranty  and  the  goods  did  not  conform  to  it,  then  the  defendants 
were  not  bound  to  accept.  It  was  plainly  assumed  by  the  judge,  that 
upon  some  theory  there  was  a  valid  executory  contract  of  sale,  not  that 
there  was  an  executed  sale.  Because  if  the  defendants  had  accepted 
these  goods,  and  the  title  had  vested  in  them,  and  the  sale  had  thus 
become  executed,  the  defendants  would  have  had  no  right  to  return 
them  for  a  breach  of  warranty  and  escape  entirely  any  recovery.  In 
such  case  the  defendants  would  have  been  obliged  to  have  retained  the 
goods,  and  could  only  have  recouped  or  counterclaimed  their  damages 
for  a  breach  of  warrant}'.  That  I  am  right  in  these  observations  as  to 
the  charge  appears  more  clearly  by  the  refusal  of  the  judge  to  charge 
the  following  request  of  the  defendants'  counsel:  "  If  you  find  the 
defendants  never  intended  to,  and  did  not  in  fact,  accept  the  goods 
delivered,  then  your  verdict  should  be  for  the  defendants."  To  the 
refusal  to  charge  as  thus  requested  there  was  an  exception.  This 
shows  quite  clearly  that  the  judge  tried  the  case  upon  the  theory  of  an 
executory  sale,  valid  and  binding  (unless  there  was  a  breach  of  war- 
ranty), without  acceptance.  In  this  refusal  to  charge  there  was  mani- 
fest error,  because  without  acceptance  there  was  no  valid  contract  of 
sale  and  the  defendants  had  the  right  to  reject  and  return  the  goods 
without  any  liability  whatever  to  the  plaintiffs. 

A  not  he]-  view  of  this  case  will  also  show  that  the  Statute  of  Frauds 
was  not  complied  with.  There  was  at  least  no  such  delivery  of  these 
goods  as  deprived   the   plaintiffs  of  their  lien  for  the  purchase-price. 


SECT.  V.]  STONE   V.    BROWNING.  841 

When  the  goods  were  returned  to  the  plaintiffs  they  claimed  a  lien  on 
them  for  the  purchase-price,  and  refused  to  receive  them  except  as  lien 
holders,  and  they  sold  them  to  satisfy  this  lien,  and  they  claim  in  this 
action  to  recover  the  balanee  of  the  purchase-price  not  satisfied  by 
a  sale  of  the  property.  It  is  unnecessary  to  inquire  whether,  upon  the 
facts  as  they  appeared  upon  the  trial,  the  plaintiffs  had  this  lien  or  not. 
They  claimed  it,  acted  upon  it,  and  alleged  it  in  their  complaint.  They 
cannot  now  be  heard  to  deny  it. 

The  authorities  above  cited  show  that  a  lien  for  the  purchase-price  is 
inconsistent  with  such  a  delivery  and  ultimate  acceptance  of  goods  as 
to  satisfy  the  Statute  of  Frauds. 

The  judgment  should  therefore  be  reversed  and  a  new  trial  granted, 
costs  to  abide  event. 

All  concur.  Judgment  reversed.1 


STONE  v.   BROWNING. 

New  York  Court  of  Appeals,  January  29  —  March  20,  1877. 

[Reported  in  68  New  York,  598.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  first  judicial  department  affirming  a  judgment  in  favor  of  plain- 
tiffs, entered  upon  a  verdict. 

The  case  upon  a  former  appeal  is  reported  in  51  New  York,  211. 

The  complaint  in  this  action  alleged  the  sale  by  plaintiffs  to  defend- 
ants of  sixty-five  cases  containing  about  33,132  yards  of  lt  sky-blue 
kerseys"  at  one  dollar  and  twenty-five  cents  per  yard,  to  be  paid  for 
by  defendants'  promissory  notes  at  four  months ;  that  plaintiffs  de- 
livered the  goods  in  pursuance  of  the  contract  of  sale  and  demanded 
the  notes,  but  defendants  refused  to  give  the  notes  and  sent  the  goods 
back  ;  that  plaintiffs  refused  to  receive  them  except  as  defendants' 
goods,  and  to  secure  the  claim  for  the  purchase-money,  and  gave 
notice  that  unless  they  were  paid  for  they  would  sell  them  upon  de- 
fendants' account,  holding  defendants  for  any  balance  ;  that  plaintiffs 
sold  the  kerseys  on  account  of  their  claim  for  the  purchase-price  and 
applied  the  proceeds,  which  left  a  deficiency,  for  which  they  asked 
judgment. 

The  contract  of  sale  was  verbal.  The  facts  appearing  in  reference 
thereto  are  sufficiently  set  forth  in  the  opinion. 

At  the  close  of  the  evidence  defendants'  counsel  moved  for  a  nonsuit 
upon  the  ground,  among  others,  that  the  contract  for  the  sale  of  the 
goods  was  void  under  the  Statute  of  Frauds,  and  the  evidence  failed  to 
show  a  delivery  or  acceptance.  The  motion  was  denied,  and  defend- 
ants' counsel  duly  excepted. 

1  Lott,  Ch.  C,  delivered  a  concurring  opinion. 


S42  STONE   V.    BROWNING.  [CHAP.  VI. 

G:0.  F.  Comstock,  for  the  appellants. 

Win.  M.  Evarts.  for  the  respondents. 

Rapallo,  J.  After  a  careful  examination  of  the  testimony  in  this 
case,  we  are  satisfied  that  there  was  no  evidence  of  an  acceptance  of 
the  goods  in  controversy  by  the  defendants,  which  would  take  this  case 
out  of  the  operation  of  the  Statute  of  Frauds,  and  that  the  motion  for 
a  nonsuit  made  upon  that  ground  should  have  been  granted.  It  is 
conclusively  established  that  by  the  terms  of  the  verbal  contract  of 
sale,  the  goods  were  to  be  examined  by  the  defendants,  before  closing 
the  transaction  by  giving  their  notes  for  the  price,  and  that  such  exam- 
ination was  to  be  made  at  the  store  of  the  defendants.  This  was  one 
of  the  conditions  of  the  sale,  and  its  consummation  necessarily  de- 
pended upon  the  result  of  such  examination.  The  receipt  of  the  goods 
b}-  the  defendants  at  their  store  under  this  arrangement  was  clearly 
not  an  acceptance  of  them.  They  received  them  for  the  express  pur- 
pose of  seeing  whether  they  would  accept  them  or  not.  Some  further 
act  on  their  part  was  necessary  to  constitute  an  acceptance  which 
would  give  validity  to  the  contract  of  purchase.  It  was  requisite  either 
that  they  should  have  made  the  examination  and  pronounced  it  satis- 
factory, or  that  they  should  have  dealt  witli  the  goods,  or  done  some 
unequivocal  act  evincing  their  intention  to  accept  them  unconditionally 
as  their  own  property,  in  order  to  supply  the  place  of  a  written  con- 
tract of  purchase.  Not  only  is  the  case  totally  barren  of  any  proof  of 
such  an  acceptance,  but  the  uncontroverted  evidence  is,  that  after  pro- 
ceeding with  the  examination  the  defendants  refused  to  accept  the 
goods  and  returned  them  to  the  plaintiffs. 

Evidence  was  introduced  to  the  effect  that  the  goods  were  in  fact 
such  as  represented,  and  that  they  corresponded  with  the  samples 
exhibited  at  the  time  of  the  sale,  and  upon  these  points  there  was  a 
conflict  in  the  testimony.  This  evidence  would  have  been  material  had 
there  been  a  written  contract  of  purchase,  and  the  question  had  been 
whether  the  plaintiffs  had  performed  their  contract,  and  whether,  con- 
sequently, the  defendants  ought  to  have  accepted  and  paid  for  the 
goods.  But  it  was  not  material  upon  the  issue  whether  there  had  been 
in  fact  an  acceptance  which  would  supply  the  place  of  a  written  con- 
tract. Without  such  an  actual  acceptance,  no  valid  contract  was  es- 
tablished. Performance  by  the  plaintiffs  of  their  part  of  the  oral  con- 
tract was  not  sufficient  to  give  validity  to  it.  All  these  points  are 
covered  by  the  decision  of  the  Commission  of  Appeals  when  this  case 
was  before  it  on  the  former  appeal  (51  N.  Y.  211),  and  are  sustained 
in  Caulkins  v.  Hellman  (47  id.  449,  and  cases  therein  cited). 

It  is  argued  that  it  is  unreasonable  to  suppose  that  the  object  of 
sending  the  goods  to  the  defendants'  store  was  merely  to  enable  them 
to  decide  whether  they  would  purchase  them  or  not.  It  perhaps  was 
not  the  intention  of  the  plaintiffs  that  the  defendants  should  have  the 
option  of  rejecting  the  goods  unless  some  just  reason  for  so  doing 
should  be  developed  by  the  examination;  but  nevertheless,  so  long  as 


SECT.  V.]  STONE   V.    BROWNING.  843 

the  plaintiffs  reposed  upon  a  verbal  contract,  void  under  the  statute, 
they  exposed  themselves  even  to  an  unjust  refusal  to  accept.  The 
only  mode  of  securing  themselves  against  such  a  result  was  to  obtain 
a  written  memorandum  of  the  purchase.     The  injustice  of  the  refusal, 

if  it  were  unjust,  could  not  supply  the  place  of  an  acceptance  or  of  a 
written  contract. 

When  goods  are  sold  subject  to  examination,  and  there  is  no  written 
contract,  Blackburn,  in  his  work  on  Sales  (pages  22,  23),  lays  down 
the  rule  as  follows:  "  So  long  as  the  buyer  can,  without  self-contradic- 
tion, declare  that  the  goods  are  not  to  be  taken  in  fulfilment  of  the 
contract,  he  has  not  accepted  them.  And  it  is  immaterial  whether  his 
refusal  to  lake  the  goods  be  reasonable  or  not.  If  he  refuse  the  goods, 
assigning  grounds  false  or  frivolous,  or  assigning  no  reasons  at  all,  it 
is  still  clear  that  he  does  not  accept  the  goods,  and  the  question  is  not 
Whether  he  ought  to  accept,  but  whether  he  has  accepted  them." 

The  point  mainly  relied  upon  in  the  prevailing  opinion  in  the  court 
below,  and  upon  the  argument  here,  is' that,  under  the  charge,  the  jury 
must,  be  regarded  as  having  found  that  the  sale  was  absolute  and  not 
conditional,  and  was  subject  only  to  the  right  of  reclamation,  affecting 
the  price  to  be  paid,  if,  upon  examination  of  the  goods,  there  should 
be  found  a  less  number  of  yards  than  the  invoice  specified,  or  that 
proper  allowance  had  not  been  made,  according  to  the  usages  of  trade, 
for  holes  that  might  be  found  in  the  cloths,  and  that  they  must  also  be 
deemed  to  have  found  that  the  cloths  were  both  delivered  to  and  ac- 
cepted by  the  defendants,  under  such  a  form  of  contract,  and  that 
these  findings  obviate  the  objections  founded  upon  the  Statute  of 
Frauds. 

"Without  discussing  the  soundness  of  this  conclusion,  as  to  which 
there  appears  to  have  been  a  difference  of  opinion  at  the  General  Term, 
we  are  satisfied,  after  a  full  examination  of  the  testimony,  that  the 
evidence  was  not  such  as  to  justify  the  submission  to  the  jury  of  the 
several  propositions  of  fact  which  they  are  thus  supposed  to  have 
passed  upon  and  found  in  favor  of  the  plaintiffs.  The  facts,  as  testi- 
fied to  by  the  plaintiffs  themselves,  were  that  the  sixty-five  cases  of 
kerseys  in  controversy  were,  at  the  time  of  the  sale,  in  the  basement 
of  plaintiffs'  store,  nailed  up,  and  in  plaintiffs'  warehouse,  with  the 
exception  of  three  or  four,  which  were  upstairs  and  open.  That  the 
purchase  was  made  by  Mr.  Button,  one  of  the  defendants,  who  made 
a  partial  examination  of  the  goods  in  these  open  cases.  They  were 
exhibited  to  him  by  Mr.  F>liss,  one  of  the  plaintiffs.  There  was  some 
conversation  as  to  the  quality  of  the  goods  and  the  price.  Button 
proposed  to  purchase  them  on  a  credit  of  four  months;  thereupon  Bliss 
consulted  his  partner.  Stone;  after  further  conversation,  Stone  said  to 
Button.  I  will  sell  to  you  on  four  months,  provided  you  will  examine 
the  goods  and  give  me  your  notes  immediately.  Button  said  he  could 
not  examine  them  before  Wednesday  of  the  following  week.  Then  Mr. 
Stone  said,  kk  I  want  you  to  know  what  you  are  doing.     If  you  buy 


S44  STONE   V.    BROWNING.  [CHAP.  VI. 

this  lot  of  goods,  I  want  you  to  give  them  a  thorough  examination," 
and  afterwards  said  that  he  did  not  want  any  after-claps  about  the 
sale  ;  he  wanted  it  to  be  a  finalit}'.  Bliss  proposed  to  Button  to  go 
downstairs  and  look  at  the  goods,  but  he  replied  that  he  could  not 
examine  them  there  ;  that  it  was  not  a  fit  place.  Fay,  another  of  the 
plaintiffs,  being  present,  said  that  looking  at  one  case  was  as  good  as 
looking  at  forty.  Bliss,  being  asked  whether  both  parties  acted  on 
the  belief  that  the  sample  fairby  represented  the  goods,  said:  "  I  did 
not  wish  him  to  act  upon  that  belief;  I  wished  him,  if  he  had  any 
doubt  about  it,  to  go  and  examine  them."  "  Q.  Then  the  action 
taken  was  upon  your  statement  that  the  balance  corresponded  with  thfe 
sample?  A.  No,  sir,  that  was  the  very  point  I  wished  to  avoid." 
The  plaintiffs  agree  substantially  in  this  statement  of  the  transaction, 
and  do  not  claim  that  anj'thing  was  said  limiting  the  proposed  exami- 
nation to  the  mere  purpose  of  a  measurement  of  the  goods.  Mr.  Stone 
testifies  that  he  understood  that  the  examination  was  to  be  at  the  store 
of  the  defendants,  and  assented  to  the  goods  being  examined  there, 
and  also  that  the  examination  was  to  be  for  the  purpose  of  determining 
the  quantit}-  of  the  goods  and  whether  they  came  up  to  the  representa- 
tions. Fay  confirms  this,  and  the  plaintiffs,  in  their  letter  to  defend- 
ants, dated  April  3,  1864,  in  reply  to  the  defendants'  letter  of  the 
same  date,  rejecting  the  goods,  say:  "We  have  only  to  repeat  that 
unless  you  can  show  that  the  light  blue  kerseys  sold  to  you  on  the  11th 
lilt,  are  not  as  good  as  the  four  sample  cases  fairly  exhibited,  and  ex- 
amined by  3-our  Mr.  Button,  we  must  consider  the  sale  binding  on 
you,"  etc.  This  evidence,  proceeding  from  the  plaintiffs  themselves, 
clearly  establishes  that  the  goods  were  sold  subject  to  examination, 
and  necessarily  implies  a  right  of  rejection  in  case  they  should  not 
prove  to  be  of  the  quality  represented,  or  indicated  by  the  samples 
exhibited.  This  right  was  conceded  by  the  plaintiffs  by  their  letter  of 
the  third  of  April,  and  by  the  testimony  of  two  of  them  on  the  trial, 
and  there  is  no  evidence  in  the  case  which  would  have  warranted  the 
submission  to  the  jury  of  the  question  whether  the  sale  and  delivery 
were  absolute  and  unconditional,  and  the  examination  merely  related 
to  measurement.  It  was  attempted  to  prove  by  Mr.  Bliss,  one  of  the 
plaintiffs,  a  custom  that  when  goods  are  delivered  to  be  examined,  the 
purpose  of  the  examination  is  merely  to  correct  the  invoices  in  respect 
to  measurement;  but  assuming  the  evidence  to  be  admissible,  it  failed 
to  establish  any  such  custom,  and  the  evidence  of  the  other  plaintiffs 
showed  clearly  that  the  purpose  of  the  examination  was  not  thus 
limited.  Even  Mr.  Bliss,  who  gives  his  understanding  of  what  the 
purpose  of  the  examination  was  to  be,  does  not  testify  that  anything 
was  s:iid  confining  it  to  any  special  purpose.  The  controversy  between 
the  parties  appears  to  have  been,  not  as  to  the  right  of  the  defendants 
to  reject  the  goods  if  really  defective,  but  as  to  the  fact  whether  they 
were  so  or  not.  This  fact,  as  has  already  been  shown,  was  not  mate- 
rial to  the  determination  of  the  question  whether  there   was  an  actual 


SECT.  V.]  DORSEY   V.    PIKE.  84o 

acceptance.     The  fact  that  the  goods  were  rejected  and  returned,  is 
established  beyond  controversy. 

Ordinarily  the  question  of  acceptance  is  one  of  fact.  But  when  the 
uncontroverted  facts  are  such  as  cannot  afford  any  ground  for  findi 
an  acceptance,  or  where,  though  the  court  might  admit  that  there  was 
a  scintilla  of  evidence  tending  to  show  an  acceptance,  they  would  still 
feel  bound  to  set  aside  a  verdict  finding  an  acceptance  on  thai  evi- 
dence it  is  the  duty  of  the  court  to  withhold  the  case  from  the  jury. 
Brown.  Slat.  Frauds,  §  321  ;  Denny  v.  Williams.  5  Allen.  5;  Howard 
v.  Borden,  13  id.  299.     We  think  that  this  case  falls  within  the  rule. 

The  respondents,  in  their  supplemental  points,  suggest  that  the 
letter  of  the  defendants,  dated  April  3,  1863,  was  a  sufficient  memo- 
randum of  the  contract  to  satisfy  the  statute.  This  letter,  it  is  true, 
acknowledges  the  purchase  of  the  goods,  but  it  does  not  state  the  price 
or  any  of  the  terms  of  the  contract.  These  deficiencies  cannot  be  sup- 
plied by  oral  evidence.  All  the  essential  parts  of  the  contract  must  he 
evidenced  by  the  writing.  This  objection,  without  reference  to  others, 
is  conclusive. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  with  costs 

to  abide  the  event. 

All  concur  ;  Allen,  J.,  absent.  Judgment  reversed. 


DORSEY  v.   PIKE. 
New  York  Supreme  Court,  January  Term,  1889= 

[Reported  in  50  Hun,  534.] 
Bradley.  J.     The  action  was  brought  to  recover  the  price  of  an 
engine,  boiler  and  pump,  with  appendages,  alleged  to  have  been  sold 
and  delivered  by  the  plaintiff  to  the  defendant  and  to  have  been  pur- 
chased by  her.  '  The  latter  denied  the  sale  and  purchase.     It  appears 
that  the  defendant  was  the  owner  of  a  stone  quarry,  in  which  she  was 
en<ra<red  in  quarrying  stone  for  market,  and  that  early  in  July.  1886, 
Jam's  B.  Pike,  the  husband  of  the  defendant,  rented  of  the  plaintiff 
this  apparatus  to  use  in  working  the  quarry,  and  it  was  put  in  use  there 
for  drilli.uv  and   pumping.      The  plaintiff  claimed,  and   gave  evidence 
tendino-  to  prove,  that  in  the  forepart  of  the  following  August,  an  ag.ee- 
menl  was  made  Let  ween  him  and  the  husband,  by  which  the  plaintiff 
aareed  to  sell  and  he  agreed  to  purchase,  at  the  price  of  $250,  the 
apparatus  to  use  in  the  quarry.     This  is  contradicted  by  evidence  on 
the  part  of  the  defendant,  and  in  her  behalf  further  evidence  was  given 
tendino-  to  prove  that  the  husband  had  no  authority  from  the  defendant 
to  make  such  purchase  on  her  account.     The  burden  of  proof  was  with 
the  plaint  ill'  to  show  that  the  sale  was  made,  and  that  the  husband  was 
authorized  to  make  the  purchase  for  the  defendant.      In  view   of  all  the 


846  DORSEY    V.    PIKE.  [CHAP.  VI. 

circumstances  appearing  by  it,  the  evidence  presented  a  question  of 
fact  upon  the  subject  of  the  authority  of  the  husband,  and  permitted 
the  conclusion  that  he  was  the  defendant's  agent  in  the  business  of 
operating  the  quarry  and  marketing  the  stone  taken  from  it;  and,  upon 
finding  that  fact,  the  jury  were  justified  in  the  further  conclusion  that 
he  had  authority  to  purchase  for  her  the  machinery  to  be  used  in  work- 
ing the  quarry.  The  alleged  agreement  of  sale  was  evidenced  by  no 
writing,  and  no  payment  was  made  of  any  part  of  the  purchase-price. 
It  is.  therefore,  contended  on  the  part  of  the  defendant,  that  the  agree- 
ment was  within  the  Statute  of  Frauds  and  void.  2  R.  S.  loG,  §  3. 
There  was  no  act  of  delivery  and  acceptance  at  the  time  the  alleged 
contract  was  made.  But  the  property  was  then  at  the  quarry  under  an 
arrangement  with  the  husband  b)'  which  the  plaintiff  had  rented  it  for 
use  there.  And, assuming  that  the  husband  was  such  agent,  and  rented 
it  for  the  defendant,  the  property  was  then  in  her  possession  as  lessee. 
Upon  the  subject  of  delivery  and  acceptance,  the  trial  court  charged  the 
jury  that  the  husband  then  had  the  possession  of  the  engine  either  in  Ins 
own  right  or  as  agent  of  his  wife  ;  and  that  if  it  was  then  understood 
and  agreed  between  the  parties  that  there  was  or  should  be  a  sale, 
••  that  sale  was  a  valid  sale,  and  the  only  question  remaining  for  you  to 
determine  is  who  the  sale  was  made  to;"  and  that  ''if  he  had  the 
entire  possession,  of  course  he  could  not  get  any  more  possession,  and 
there  was  no  necessity  of  any  writing,  no  necessity  of  an}'  payment  or 
necessity  for  any  further  delivery."  The  view  of  the  court  evidently 
was  that  no  act  further  than  the  making  of  the  oral  agreement  of  sale 
and  purchase  was  essential  to  its  validity  and  to  render  the  contract 
effectual,  if  the  property  was  then  in  the  possession  of  the  party  in 
whose  behalf  it  was  made  as  purchaser.  The  defendant's  counsel  took 
exception  to  the  proposition  so  charged.  The  statute  requires,  to  sup- 
port such  a  contract,  a  subscribed  memorandum  of  it  in  writing,  unless 
the  buyer  shall  accept  the  property,  or  some  part  of  it,  or  at  the  time 
pay  some  part  of  the  purchase-money.  And  its  purpose  was  not  to 
permit  the  validity  of  such  an  agreement  to  rest  merely  in  words.  The 
design  of  the  statute  was  in  contracts  of  this  character,  having  the  im- 
portance represented  by  the  requisite  price  of  the  property,  to  guard 
against  the  misunderstanding  of  the  parties,  and  perjury,  by  requiring, 
in  the  absence  of  any  writing  subscribed  by  the  part)'  to  be  charged, 
that  a  portion  of  the  purchase-money  should  at  the  time  be  paid,  or  that 
then  or  thereafter  the  purchaser  should  by  some  act  accept  and  receive 
some  of  the  propert}'.  The  opportunity  and  expressed  purpose  to 
accept  it  is  not  sufficient.  (Shindlerv.  Houston,  1  X.  Y.  261.)  Assum- 
ing that  the  machine  was  in  the  possession  of  the  defendant  at  the 
time  the  agreement  to  purchase  was  made,  and  that  the  husband,  as 
her  agent,  made  it,  those  facts  alone  were  not  sufficient  to  give  validity 
to  the  contract.  To  hold  otherwise  would  have  the  effect  to  render  the 
mere  word-,  of  the  parties  to  such  a  contract  effectual,  and  the  purpose  of 
the  statute  would  be  defeated.     The  then  possession  was  in  no  manner 


SECT.  V.] 


DORSEY    V.    PIKE.  847 


produced  hy  or  derived  from  such  contract,  but  was  lawfully  taken  and 
held  under  another  and  independent  arrangement  between  the  parties; 
and  until  the  purchase  was  evidenced  by  some  act  of  acceptance  under 
or  in  pursuance  of  the  agreement  to  buy,  no  valid  sale  would  he  accom- 
plished.     This   is  clearly   the  expressed   import  and   purpose  of  the 
statute;  and  such  is  the  unbroken  current  of  authority  as  to  its  effect. 
The  mere  fact  that  the  property  was  in  possession  of  the  defendant  at 
the  time  of  making  the  contract  furnished  no  evidence  of  acceptance  in 
its  support.     Edan  v.  Dudlield,  1  (I  15.  (1  Adol.   &   Ell.  n.  s.)  302; 
Lillywhite   v.    Devereux,   15  M.  &  \V.  285;  In  re  Hoover,  33  Hun, 
553*;   Benjamin  on   Sales  (Corbin),   §    173.       But  there  must  be  some 
act  or  conduct  on  the  part  of  the  buyer,  in  respect  to  the  property, 
which  manifests  an  intention  to  accept  it  pursuant  to  or  in  performance 
of  the  contract  of  sale  and  purchase,  which  the  parties  have  sought  to 
make;  and  when  the  evidence  is  such   as  to  warrant  that  conclusion, 
the  question   is   usually  one  of  fact  for  the  jury.      Parker  v.  Wallis,  5 
Ell.  &  Bl.  21  ;  Caulkins  v.  Hellman,  47  N.  Y.  449  ;  Stone  v.  Browning, 
51   id.  211;    s.  c,  68  id.  598.      This  case    was   not  entirely  without 
evidence  upon  the  question.     There  was  evidence  tending  to  prove  that 
some  use  was  made  of  the   machine   at  the  quarry,  not  only  after  the 
alleged  contract  of  sale  was  made,  but  after  Mr.  Bike  had  notified  the 
plaintiff  that  it  was  subject  to  the  order  of  the  latter,  and   would   be 
returned  to  him  at   such   place  in   Rochester   as   he   might  designate. 
This  notice  was  given  two  weeks  after  the  alleged  purchase,  and  appar- 
ently indicated  a  purpose  to  terminate  the  agreement  under  which  the 
apparatus  had   been  taken  ;    and  it  in  terms   imported  no  intention  to 
accept  or  retain  it  under  the  contract  of  sale  ;  and  whether  any  action 
on  the  part  of  the  defendant's  agent  (assuming  her  husband   was  such) 
in  the  control  and  use  of  the  machine  after  such  verbal  agreement  was 
made,  was  characterized  by  his  intent  to  accept  it  in  observance  and 
execution  of  such  contiact,  was  a  question  for  the  jury  ;  and  to  enable 
them  to  reach  such  conclusion,  and  thus  give  validity  to  the  contract  as 
one  of  sale,  the  fact  must  fairly  have  the  support  of  evidence.     We  do 
not  here  intend  to  express  any  view  upon  the  weight  of  the  evidence 
on  that  subject ;  but,  so  far  as  related  to  the  use  made  of  the  apparatus 
after  the   plaintiff   was  so  notified   of  the   purpose   to    terminate  the 
arrangement  for  its  service  and  return  the  property  to  him,  there  was 
some  Evidence  on  the  part  of  the  defendant,  to  the  effect  that  such  use 
was  applied  to  pumping  water  from  a  place  mentioned,  in  order  to 
remove  a  pipe  connected  with  it,  and  with  a  view  only  to  take  out  and 
remove  the  pump.      This   may  have   been   consistent  with   no  intent 
to  accept  the  property  as  a  purchaser;   but,  in  view  of  all  the  evi- 
dence upon  that  subject,  we  think   the  question  was  one  of  fact  for 

the  jury. 

The  suggestion  of  the  plaintiff's  counsel,  that  the  question  raised  by 
the  exception  before  mentioned  was  obviated  by  other  portions  of  the 
rharge  of  the  court,  does  not  seem  to  be  supported.     The  part  of  the 


84S  FROSTBURG    MIXING   CO.   V.   N.    E.    GLASS   CO.        [CHAP.  VI. 

charge  in  question  is  not  qualified,  necessarily  or  in  fact,  by  an}r  in- 
struction given  to  the  jury.  So  far  as  appears,  they  were  permitted 
to  understand  that  the  fact  of  possession  b}'  the  defendant  of  the  prop- 
erty at  the  time  of  making  the  contract  by  her  agent  (if  so  made),  was 
sufficient  to  render  the  contract  of  sale  valid.  While  it  is  true  that,  hi 
view  of  such  possession,  nothing  further  was  required  of  the  plaintiff 
by  way  of  delivery  of  the  propert}-,  the  matter  of  acceptance  requisite 
to  the  validity  of  the  contract  was  dependent  wholly  upon  the  voluntary 
act  of  the  other  party  to  such  contract.  It  is  deemed  unnecessary,  for 
the  purposes  of  another  trial,  to  express  consideration  of  any  other 
question  presented  on  this  review. 

The  judgment  and  older  should  be  reversed,  and  a  new  trial  granted, 
costs  to  abide  the  event. 

Barker,  P.  J.,  Haigiit  and  Dwight,  JJ.,  concurred. 

Judgment  and  order   reversed,  and  new   trial   ordered,  costs 
to  abide  event. 


THE   FROSTBURG    MINING    COMPANY   v.   THE    NEW 
ENGLAND    GLASS    COMPANY. 

Supreme  Judicial  Court  of  Massachusetts,  November  Term,  1851. 

[Reported  in  9  Cushinq,  115] 

This  was  an  action  of  assumpsit  for  goods  sold  and  delivered,  to 
which  the  defendants  pleaded  the  general  issue.  It  was  tried  in  this 
court  before  Bigelow,  J.,  and  reported  by  him  to  the  full  court. 

The  facts  are  sufficiently  stated  in  the  judgment.  If  the  court  shall 
be  of  opinion  that  upon  the  facts  stated  there  was  a  sufficient  acceptance 
by  the  defendants  of  the  coal  to  satisfy  the  Statute  of  Frauds,  the  case 
shall  be  referred  to  an  assessor  to  determine  the  amount  of  damages  ; 
otherwise  the  plaintiffs  shall  become  nonsuited. 

/.  J.  Austin,  for  the  plaintiffs. 

BJ.  Buttrick,  for  the  defendants. 

Fletcher,  J.  This  is  an  action  of  assumpsit  for  goods  sold  and 
delivered.  Upon  the  trial  it  appeared  by  the  testimony  of  Mr.  Addi- 
Child  that  he  was  the  agent  of  the  plaintiffs,  who  did  their  busi- 
ness in  Baltimore,  Maryland;  that  about  the  19th  March,  1849,  he 
received  from  the  agent  of  the  defendants,  who  do  their  business  in 
Cambridge  and  Boston,  a  verbal  order  for  a  cargo  of  coal,  to  be  shipped 
by  the  plaintiffs  from  Baltimore  in  a  vessel  drawing  not  more  than  ten 
feel  of  water,  .-it  a  freight  not  over  $-2.2~>  a  ton.  This  order  the  wit- 
ness forwarded  to  the  agent  of  the  plaintiffs  in  Baltimore;  and  on  the 
11th  April.  1849,  the  cargo  was  shipped  on  board  a  schooner  which 
drew,  when   fully  loaded,  nine  feet  and  nine  inches  only. 

By  the  bill  of  lading  the  cargo    was    consigned    to    Mr.    Child,  the 


SECT.  V.]  FROSTBURG    MINING    CO.    V.    N.    E.    GLASS    CO.  849 

plaintiffs'  agent,  or  his  order,  for  the  defendants.  This  bill  of  lading 
was  forwarded  by  the  plaintiffs  to  Mr.  Child,  and  received  by  him  in 
due  course  of  mail  on  the  16th  or  17th  of  April,  and  specified  the 
freight  to  be  $2.45  a  ton.  On  the  day  it  was  received  it  was  indorsed 
by  Child,  and  together  with  a  bill  of  the  coal  left  by  him  in  the  count- 
ing-room of  the  defendants'  agent,  who  was  at  that  time  absent.  As 
soon  as  the  defendants'  agent  returned,  he  sent  back  the  bill  of  lading 
and  refused  to  receive  the  coal. 

The  said  bill  for  the  coal  reduced  the  price  twenty  cents  a  ton,  so 
that  the  height  on  the  same,  to  be  paid  by  the  defendants,  need  not 
exceed  their  limits  of  82.25  a  ton. 

On  tin'  passage  from  Baltimore  to  Boston  the  vessel  in  which  the 
coal  was  shipped  foundered.  After  being  raised  and  repaired,  she 
arrived  in  Boston,  when  the  plaintiffs  by  their  aforesaid  agent  tendered 
the  coal  to  the  defendants,  who  refused  to  receive  it. 

It  was  proved  on  the  trial  that,  by  the  usage  of  the  coal  trade 
between  Baltimore  and  Boston,  when  coal  is  ordered  in  Boston  from 
Baltimore  the  delivery  of  it  on  board  a  vessel  consigned  to  the  person 
ordering  it  is  a  compliance  with  the  order,  and,  the  coal  is  thereafter 
at  the  risk  of  the  part}'  ordering  it. 

The  defence  is  that,  according  to  the  provisions  of  the  Statute  of 
Frauds,  this  being  a  contract  for  the  sale  of  goods,  wares,  and  mer- 
chandise, for  the  price  of  fifty  dollars  or  more,  and  there  being  no  note 
or  memorandum  of  the  bargain  in  writing,  the  contract  was  not  bind- 
ing unless  the  purchaser  shall  accept  and  receive  part  of  the  goods,  or 
give  something  in  earnest  to  bind  the  bargain  or  in  part  pajment. 

There  was  nothing  given  in  earnest  or  in  part  payment.  The  only 
question  is,  whether  the  defendants  did  accept  and  receive  the  goods 
or  any  part  of  them. 

That  there  was  no  actual  manual  taking  or  occupation  of  the  coal 
by  the  defendants,  is  quite  clear. 

As  soon  as  the  defendants'  agent  had  knowledge  that  the  bill  of  lad- 
ing was  left  at  his  counting-room,  he  forthwith  sent  it  back  to  the 
plaintiffs'  agent,  and  expressly  refused  to  receive  the  coal.  When  the 
coal  arrived  and  was  tendered  to  the  defendants'  agent  he  at  once 
refused  to  receive  it;  so  that  the  defendants  have  promptly  repelled 
all  attempts  to  make  an  actual  delivery  of  the  coal  to  them,  and  have 
promptly  refused  to  accept  and  receive  the  coal  or  any  part  of  it. 

But  the  learned  counsel  for  the  plaintiffs  maintains  with  much  ability 
that  it  is  not  necessary  that  there  should  be  an  actual  manual  taking  or 
occupation  of  the  coal,  but  that  there  may  be  a  constructive  accepting 
and  receiving,  and  that  the  receiving  on  board  the  vessel  was  a  suffi- 
cient accepting  and  receiving  by  the  defendants. 

The  proposition  of  the  plaintiffs'  counsel,  that  there  may  be  a  con- 
structive accepting  and  receiving,  or  a  receiving  without  the  actual 
manual  occupation  by  the  purchaser,  seems  to  be  well  sustained  by  the 
authorities.      Therefore  in  many  cases  it  is  made  a  question    to   the 

54 


850  FKOSTBUKG    MINING    CO.    V.    N.    E.    GLASS   CO.        [CHAP.  VI. 

jury,  whether  the  purchaser  by  his  mode  of  acting  or  forbearing  to  act, 
or  by  some  acquiescence,  has  not  accepted  the  goods,  though  there  has 
been  no  actual  manual  taking  and  occupation  of  them  by  him. 

The  further  proposition  of  the  learned  counsel  for  the  plaintiffs,  that 
the  acceptance  and  receipt,  to  satisfy  the  Statute  of  Frauds,  are  not 
such  as  to  preclude  the  purchaser  from  afterwards  objecting  to  the 
quantity  or  quality  of  the  goods,  is  certainly  fully  sustained  by  the  case 
of  Morion  v.  Tibbett,  15  Adol.  &  Ellis,  n.  s.  428. 

This  case  in  this  particular  differs  from  many  previous  cases,  which 
are  all  carefully  referred  to  and  commented  on  by  the  Chief  Justice  of 
the  Queen's  Bench,  in  delivering  the  opinion  of  the  court. 

In  Morton  v.  Tibbett  the  receipt  of  the  goods  is  considered  as  a  sub- 
stitute for  writing,  leaving  to  the  purchaser  the  same  right  to  object 
that  the  contract  has  not  been  complied  with  which  he  would  have  if 
the  contract  had  been  in  writing. 

The  other  and  most  material  proposition  on  behalf  of  the  plaintiffs, 
that  the  coal  when  delivered  on  board  the  vessel  was  accepted  and 
received  by  the  defendants  within  the  provision  of  the  statute,  remains 
to  be  considered. 

That  a  delivery  to  a  carrier  is  not  sufficient  to  satisfy  the  statute,  as 
a  general  proposition,  is  undoubtedly  true,  and  is  very  properly  admitted 
by  the  plaintiffs'  counsel.  But  it  is  maintained  that  the  master  of  the 
vessel,  under  the  particular  circumstances  of  the  case,  was  an  agent  to 
accept  to  satisfy  the  statute,  because  in  the  first  place  he  was  a  carrier 
nominated  by  the  defendants.  But  the  facts  show  that  the  verbal 
order  of  the  defendants  was  merely  to  have  the  coal  shipped  by  the 
plaintiffs  from  Baltimore  in  a  vessel  drawing  not  more  than  ten  feet  of 
water,  at  a  freight  not  over  $2.25  a  ton.  No  reference  was  made  to 
any  particular  vessel  or  master.  Even  this  very  general  order  was  not 
complied  with  by  the  plaintiffs,  as  the  freight  was  $2.45  a  ton  instead 
of  82.25  as  was  ordered. 

This  departure  in  the  price  of  the  freight  would  perhaps  of  itself 
lie  sufficient  to  exempt  the  defendants  from  the  liability  to  take  and 
pay  for  the  coal.  But  it  is  not  necessary  to  put  the  case  on  that  ground, 
or  attach  an}'  importance  to  that  point. 

The  order  as  to  a  vessel  was  very  general,  referring  to  no  particular 
vessel  or  master,  specifying  only  the  draught  of  water  and  price  of 
freight. 

The  master  was  merely  a  carrier,  and  the  taking  by  him  would  in  no 
sense  and  upon  no  principle  be  regarded  as  a  receipt  by  the  vendee. 

The  case  of  Morton  v.  Tibbett  was  much  stronger  than  the  present. 
There  the  defendant  himself  sent  a  particular  lighterman  to  receive 
the  wheat.  But  the  delivery  to  the  lighterman  was  not  considered  to 
!»'  a  receipt  by  the  vendee,  though  other  acts  of  the  vendee  tending 
to  show  an  acceptance  by  him  were  regarded  as  sufficient  to  justify  a 
verdict  for  the  plaintiff. 

So  also  in  Bushel  and  Others  v.  Wheeler,  which  is  reported  in  connec- 


SECT.  V.]  FEOSTBURG    MINING    CO.    V.    N.    E.    CLASS    CO.  851 

tion  with  Morton  v.  Tibbett,  the  vendee  ordered  the  goods  to  be  for- 
warded by  a  particular  sloop.  Yet  the  delivery  on  board  the  sloop 
was  not  regarded  as  a  receipt  by  the  vendee  within  the  statute,  though 
the  subsequent  acts  and  forbearing  to  act  on  the  part  of  the  vendee 
were  held  to  be  sufficient  to  go  to  the  jury,  to  find  an  actual  receipt  by 
the  vendee. 

It  is  therefore  quite  clear  that  a  delivery  on  board  the  vessel  in  this 
case  cannot  be  regarded  as  a  receipt,  within  the  provision  of  the  stat- 
ute, by  the  vendee,  on  the  ground  that  the  defendant  ordered  the  coal 
to  be  forwarded  in  that  way. 

But  it  is  further  maintained  for  the  plaintiff  that  the  master  of  the 
vessel  was  an  agent  to  accept  within  the  statute,  because  the  usage  of 
trade  made  him  such  in  the  coal  trade  between  Boston  and  Baltimore. 
The  usage  as  shown  was  that  when  coal  is  ordered  in  Boston  from 
Baltimore  the  delivery  of  it  on  board  a  vessel  consigned  to  the  person 
ordering  it  is  in  compliance  with  the  order,  and  the  coal  is  thereafter 
at  the  risk  of  the  party  ordering  it. 

It  does  not  in  terms  appear  whether  or  not  this  usage  applies  to 
mere  verbal  orders,  which  are  invalid  by  the  Statute  of  Frauds. 

Nor  is  it  shown  upon  what  ground  this  usage  can  be  set  up  and 
maintained  against  established  provisions  and  principles  of  law.  Upon 
general  principles  of  mercantile  law,  when  a  person  accepts  a  written 
order  and  delivers  goods  on  board  a  vessel  according  to  the  order,  con- 
signed to  the  person  ordering  them  in  common  form,  they  are  then  of 
course  at  the  risk  of  the  consignee. 

When  orders  have  been  received  and  executed,  and  delivery  has 
been  made  to  the  master  of  the  ship,  and  bills  of  lading  signed  and 
forwarded,  the  seller  is  functus  officio  and  can  do  nothing  more,  except 
so  far  as  he  may  have  a  right  of  stoppage  in  transitu. 

It  is  unnecessary  to  consider  how  far  there  could  be  an}-  usage  affect- 
ing the  rights  of  the  parties  in  this  case,  as  it  is  quite  clear  that  the 
case  is  not  within  the  usage  set  up  and  relied  upon.  The  usage  is  said 
to  be  that,  when  coal  ordered  is  delivered  on  board  a  vessel  consigned 
to  the  party  ordering  it,  that  is  a  compliance  with  the  order,  and  the 
coal  is  thereafter  at  the  risk  of  the  party  ordering  it. 

But  in  the  present  case  the  coal  was  not  consigned  to  the  part}* 
ordering  it,  but  on  the  contrary  was  consigned  to  the  plaintiffs'  own 
agent.  By  the  bill  of  lading  the  coal  was  to  be  delivered  to  Addison 
Child  or  his  assigns.  But  the  bill  of  lading  expressed  that  it  was  to 
be  delivered  to  Addison  Child  for  the  New  England  Glass  Company  ; 
and  when  the  bill  of  lading  was  received  by  the  consignee  he  indorsed 
it  and  offered  it  to  the  defendants'  agent,  which  it  is  said  was  a  sub- 
stantial compliance  with  the  alleged  custom.  The  supposed  custom 
required  the  coal  to  be  consigned  to  the  defendants,  but  it  was  in  fact 
consigned  to  the  plaintiffs'  agent.  This,  so  far  from  being  a  substantial 
compliance  with,  was  the  widest  possible  departure  from  the  custom. 

The  hill  of  lading  gave  the  defendants  no  right  to  or  control  over 


852  MARSH   V.    HYDE.  [CHAP.  VI. 

the  coal,  and  when  indorsed  and  offered  to  the  defendants'  agent  was 
promptly  rejected. 

There  having  therefore  been  no  acceptance  of  the  coal  by  the 
defendants  to  satisfy  the  Statute  of  Frauds,  according  to  the  provision 
of  the  report  the  plaintiffs  must  become  nonsuit. 

Plaintiff's  nonsuit. 


WARREN   MARSH  and  Others  v.  LEONARD   HYDE,  Jr. 
Supreme  Judicial  Court  of  Massachusetts,  March  Term,  1855. 

[Reported  in  3   Gray,  331.] 

Action  of  contract  on  a  verbal  agreement  for  the  sale  by  defendant 
to  the  plaintiffs  of  two  mows  of  hay,  stored  in  two  separate  barns,  and 
containing  about  twenty  tons,  at  the  rate  of  fourteen  dollars  a  ton.  The 
case  was  referred  by  rule  of  court.  At  the  hearing  before  the  referee 
there  was  evidence  to  prove  a  verbal  agreement  for  the  sale  of  the  hay 
at  the  price  named,  to  be  paid  for  as  it  was  delivered  ;  and  that  the  de- 
fendant at  different  times,  some  days  afterwards,  delivered  three  loads 
of  the  hay,  amounting  in  all  to  about  two  tons,  and  then  refused  to 
deliver  the  remainder.  The  defendant  objected  that  the  contract  was 
within  the  Statute  of  Frauds  ;  and  the  referee  reported  the  facts  so  as 
to  present  this  question  to  the  court. 

C.  C.  Nutter  and  T.  F.  Natter,  for  the  plaintiffs 

H.  C.  Ifutchins,  for  the  defendant. 

Bigelow,  J.  The  report  of  the  referee  presents  the  question  whether 
the  contract  was  binding  on  the  parties  under  the  Statute  of  Frauds. 
Rev.  Sts.  c.  74,  §  4.  The  defendant's  objection  is  put  on  the  ground 
that,  there  having  been  no  delivery  of  any  part  of  the  hay  at  the  time 
the  agreement  was  entered  into  for  its  sale  and  purchase,  the  subse- 
quent delivery  of  the  three  loads  to  [by?]  the  defendant  will  not  avail 
to  take  the  case  out  of  the  operation  of  the  statute  ;  and  that  the  deliv- 
ery of  the  hay  under  the  circumstances  proved  only  establishes  three 
different  and  distinct  contracts  for  each  load  ;  so  that  an  action  could 
have  been  maintained  by  the  seller  for  each  load  as  it  was  delivered. 

But  this  position  cannot  be  maintained  upon  any  reasonable  and  just 
construction  of  the  language  of  the  statute ;  nor  is  it  supported  by  a 
consideration  of  the  purposes  and  objects  which  the  statute  was  intended 
to  accomplish.  There  is  nothing  in  the  statute  which  fixes  or  limits  the 
time  within  which  a  purchaser  is  to  accept  and  receive  part  of  the  goods 
sold,  or  give  something  in  earnest  to  bind  the  bargain  or  in  part  pay- 
ment. It  would  full}'  satisfy  its  terms  if  the  delivery  or  part  payment 
were  made  in  pursuance  of  a  contract  previously  entered  into.  In  New 
York  it  is  expressly  provided  that  the  part  payment  under  the  contract 
shall  be  made  "  at  the  time."     Rev.  Sts.  of  N.  Y.  pt.  2,  c.  7,  tit.  2,  §  3. 


SECT.  V.]  MARSH    V.    HYDE.  853 

But  no  such  language  is  found  in  any  part  of  our  statute.  Nor  can  we 
sec  any  good  reason  for  implying  that  any  such  limitation  was  intended 
by  its  provisions. 

The  great  purpose  of  the  enactments  commonly  known  as  the  Statute 
of  Frauds  is  to  guard  against  the  commission  of  perjury  in  the  proof  of 
certain  contracts.  This  is  effected  by  providing  that  mere  parol  proof 
of  such  contracts  shall  be  insufficient  to  establish  them  in  a  court  of 
justice.  In  regard  to  contracts  for  sales  of  goods,  one  mode  of  proof 
which  the  statute  adopts  to  secure  this  object  is  the  delivery  of  part  of 
the  goods  sold.  But  this  provision  does  not  effectually  prevent  the 
commission  of  perjury  ;  it  only  renders  it  less  probable  by  rendering 
proof  in  support  of  the  contract  more  difficult.  So  in  regard  to  other 
provisions  of  the  same  statute  ;  perjury  is  not  entirely  prevented  by 
them  ;  the  handwriting  of  a  party  to  be  charged,  or  the  agency  of  the 
person  acting  in  his  behalf,  may  still  be  proved  by  the  testimony  of  wit- 
nesses who  swear  falsely.  Absolute  prevention  of  perjury  is  not  possible. 
In  carrying  this  great  purpose  of  the  statute  into  practical  operation,  it 
can  add  no  security  against  the  danger  o,  perjury  that  the  act,  proof  of 
which  is  necessary  to  render  a  contract  operative,  is  not  [sic]  contem- 
poraneous with  the  verbal  agreement.  A  memorandum  in  writing  will 
be  as  effectual  against  perjury,  although  signed  subsequently  to  the 
making  of  a  verbal  contract,  as  if  it  had  been  executed  at  the  moment 
when  the  parties  consummated  their  agreement  by  word  of  mouth.  So 
proof  of  the  delivery  of  goods  in  pursuance  of  an  agreement  for  their 
sale  previously  made,  will  be  as  efficacious  to  secure  parties  against  false 
swearing  as  if  the  delivery  had  accompanied  the  verbal  contract.  It  is 
the  fact  of  delivery  under  and  in  pursuance  of  an  agreement  of  sale, 
not  the  time  when  the  delivery  is  made,  that  the  statute  renders  essential 
to  the  proof  of  a  valid  contract.  It  is  to  be  borne  in  mind  that  in  all 
cases  where  there  is  no  memorandum  or  note  in  writing  of  the  bargain, 
the  verbal  agreement  of  the  parties  must  be  proved.  The  statute  does 
not  prohibit  verbal  contracts.  On  the  contrary,  it  presupposes  that  the 
terms  of  the  contract  rest  in  parol  proof,  and  only  requires,  in  addition 
to  the  proof  of  such  verbal  agreement,  evidence  of  a  delivery  or  part 
payment  under  it.  It  does  not  therefore  change  the  nature  of  the  evi- 
dence to  be  offered  in  support  of  the  contract.  It  merely  renders  it 
necessary  for  the  party  claiming  under  it  to  show  an  additional  fact  in 
order  to  make  it  "  good  and  valid." 

The  fallacy  of  the  argument  pressed  by  the  counsel  for  the  defendant 
seems  to  us  to  consist  in  assuming  that  the  contract  takes  its  legal  force 
and  effect  from  the  time  when  its  terms  are  verbally  agreed  upon  ;  and 
that  therefore,  being  void  when  made,  it  cannot  become  valid  by  any 
subsequent  act  of  the  parties.  It  would  be  more  correct  to  say  that, 
until  the  formalities  required  by  the  statute  are  complied  with,  there  is 
no  legal  and  valid  contract  entered  into.  The  terms  verbally  agreed 
upon  between  the  parties  amount  to  little  else  than  a  proposition  for  a 
contract ;  and  it  is  not  until  delivery  of  part  of  the  goods  takes  place, 


854  ATHERTON   V.   NEWHALL.  [CHAP.  VI. 

or  part  payment  is  made,  that  it  assumes  the  qualities  of  a  legal  contract ; 
m  the  same  manner  as  the  written  memorandum  of  the  previous  verbal 
agreement  of  the  parties  becomes  in  law  the  binding  agreement  between 
them.  It  is  not  therefore  the  subsequent  delivery  of  goods  which  gives 
vitality  and  force  to  a  contract  previously  void.  Until  the  delivery  is 
made  no  binding  contract  exists  ;  and  when  it  takes  place  the  act  of  the 
parties  unites  with  their  previous  verbal  understanding  to  create  a  full, 
complete,  and  obligatory  agreement.  In  all  cases  like  the  present  a 
single  inquiry  operates  as  a  test  by  which  to  ascertain  whether  a  con- 
tract is  binding  upon  the  parties  under  the  Statute  of  Frauds.  It  is 
whether  the  delivery  and  acceptance,  whenever  they  took  place,  were  in 
pursuance  of  a  previous  agreement.  If  the  verbal  contract  is  proved, 
and  a  delivery  in  pursuance  of  it  is  shown,  the  requisites  of  the  statute 
are  fulfilled.  Such  was  the  proof  in  the  present  case.  The  plaintiffs, 
if  they  had  proved  only  a  delivery  of  three  loads  of  hay,  would  not 
have  made  out  their  case  against  the  defendant.  But  having  also 
proved  a  previous  contract  of  sale  for  the  whole  of  the  hay,  as  well  as 
a  delivery  under  that  contract,  they  had  established  by  competent  proof 
a  valid  agreement,  binding  on  the  parties,  for  breach  of  which  the 
plaintiffs  might  well  maintain  an  action  for  damages.  Elliott  v.  Thomas, 
3  M.  &  W.  170  ;  Scott  v.  Eastern  Counties  Railway,  12  M.  &  W.  33; 
Vincent  v.  Germond,  11  Johns.  £83  ;  Davis  v.  Moore,  13  Maine,  424  ; 
Damon  v.  Osborn,  1  Pick.  476  ;  Thompson  v.  Alger,  12  Met.  435.  The 
case  of  Seymour  v.  Davis,  2  Sandf.  239,  cited  by  the  defendant,  has 
been  substantially  overruled  by  the  later  case  in  the  Court  of  Appeals 
of  New  York  of  McKnight  v.  Dunlop,  1  Seld.  537. 

It  is  true,  as  the  counsel  for  the  defendant  suggests,  that  an  action 
would  lie  against  the  plaintiffs  to  recover  the  price  of  each  separate  load 
of  hay  as  it  was  delivered ;  but  this  does  not  show  that  there  was  not 
an  entire  contract  for  the  sale  and  delivery  of  all  the  hay  stored  in  the 
two  barns.  The  defendant  could  maintain  an  action  to  recover  the  price 
of  each  load,  because  such  were  the  terms  of  payment  agreed  upon.  So 
too  he  could  recover  damages  for  a  breach  of  the  contract,  if  the  plain- 
tiffs had  refused  to  accept  and  receive  the  residue  of  the  hay  after  the 
delivery  of  the  three  loads.  Judgment  for  the  plaintiffs. 


ATHERTON  v.  NEWHALL. 

Supreme  Judicial  Court  of  Massachusetts,  March  13  — 
September  7,  1877. 

[Rejiorted  in  123  Xfassachusetts,  141.] 

Contract  to  recover  the  price  of  GC>0  sides  of  sole  leather.     At  the 
trial  in  the  Superior  Court,  before  Gardner,  J.,  it  appeared  that  the 


SECT.  V.]  ATHERTON   V.   NEWHALL.  855 

plaintiffs  were  dealers  in  leather  in  Boston,  and  that  the  defendants  were 
manufacturers  of  boots  and  shoes  in  Lynn.  One  of  the  plaintiffs  testi- 
fied that  the  defendant  Newhall  called  at  their  store  on  Saturday, 
November  9,  1872,  examined  some  leather,  and  said  he  would  take 
"  what  leather  was  adapted  to  his  purpose,"  being  leather  "  light 
weight"  in  thickness,  out  of  a  certain  lot  of  about  800  sides  which  were 
piled  up  in  the  store;  and  that,  after  Newhall  had  gone,  he  assisted  in 
sorting  out  the  leather  intended  for  the  defendants,  which  was  then 
rolled  up  into  44  rolls,  containing  660  sides,  weighed,  marked  with  the 
defendants'  names,  and  placed  near  the  front  door  of  the  store,  read}' 
for  delivery.  It  was  also  in  evidence  that  in  the  afternoon  of  the  same 
day  an  expressman,  who  was  in  the  habit  of  calling  at  the  plaintiff's' 
store  for  goods  for  Lynn,  called  and  took  six  rolls  of  the  leather,  con- 
taining 1)0  sides,  which  was  all  his  wagon  could  cany,  with  the  goods 
then  on  it,  but  did  not  deliver  them  until  the  Monday  following  to  the 
defendants,  who  were  regular  customers  of  his  ;  but  in  this  case  no  order 
had  been  given  to  him  by  either  party.  The  plaintiffs'  store,  with  its 
contents,  including  the  remaining  570  sides  of  leather,  was  burned  in 
the  great  fire  of  November  9,  1872.  On  Monday,  November  11,  1872, 
the  defendant  Newhall  called  on  the  plaintiffs  and  produced  the  bill, 
which  he  had  received  from  the  plaintiffs,  for  the  660  sides,  and  re- 
quested their  book-keeper  to  correct  the  bill  so  as  to  correspond  with  the 
amount  of  leather  actually  received  by  him,  and  the  book-keeper  there- 
upon deducted  the  570  sides  from  the  bill.  On  March  20,  1873,  he 
tendered  to  the  plaintiff  $394,  the  amount  due  for  the  90  sides,  which 
they  declined  to  receive. 

Upon  this  evidence,  the  judge  ruled  that  there  was  no  evidence  of  any 
delivery  to  or  acceptance  by  the  defendants  of  the  570  sides  of  leather, 
directed  the  jury  to  return  a  verdict  for  the  price  of  the  90  sides,  and 
reported  the  case  for  the  consideration  of  this  court.  If  the  action  could 
be  maintained  for  the  whole  660  sides,  the  verdict  was  to  be  set  aside  ; 
otherwise,  judgment  was  to  be  entered  on  the  verdict. 

E.  Arerr/  and  G.  M.  Hobbs,  for  the  plaintiffs. 

R.  M.  Morse,  Jr. ,  for  the  defendants. 

Gray,  C.  J.  It  is  unnecessary  to  consider  whether  there  was  a  suf- 
ficient delivery  to  complete  the  sale,  because  it  is  quite  clear,  upon  the 
authorities,  that  there  was  no  such  acceptance  and  receipt  of  part  of  the 
goods  as  would  satisfy  the  Statute  of  Frauds.  Gen.  Sts.  c.  105,  §  5. 
Such  acceptance  must  be  by  the  buyer  himself,  or  by  some  one  author- 
ized to  accept  in  his  behalf.  The  acts  of  the  buyer  on  Saturday  did  not 
constitute  such  an  acceptance,  because,  according  to  the  seller's  own 
testimony,  the  biryer  merely  agreed  to  take  all  the  sides  of  leather  of  a 
certain  thickness,  which  were  not  then  set  apart  by  themselves,  but 
formed  part  of  a  large  pile  from  which  the)'  were  afterwards  to  be 
selected  by  the  seller.  Knight  v.  Mann,  IIS  Mass.  143.  The  receipt 
of  part  of  the  leather  by  the  expressman  did  not  constitute  such  an 
acceptance,  because  he  was  not  authorized  to  accept  so  as  to  bind   the 


856  RODGERS    V.   JONES.  [CHAP.  VL 

buyer.  Johnson  v.  Cuttle,  105  Mass.  447.  The  acceptance  by  the 
buyer  on  Monday,  of  the  part  brought  by  the  expressman,  was  not  a 
sufficient  acceptance  to  take  the  sale  of  the  whole  out  of  the  statute, 
because  it  appears  that  it  was  not  with  an  intention  to  perform  the 
whole  contract  and  to  assert  the  buyer's  ownership  under  it,  but,  on  the 
contrary,  that  he  immediately  informed  the  seller's  clerk  that  he  would 
be  responsible  only  for  the  part  received.  Townsend  v.  Hargraves,  118 
Mass.  325,  333  ;  Reinick  v.  Sandford,  120  Mass.  309. 

Judgment  on  the  verdict. 


RODGERS   v.   JONES. 

Supreme  Judicial  Court  of  Massachusetts,. November  18,  1878  — 
September  14,   1880. 

[Reported  in  129  Massachusetts,  420.] 

Gray,  C.  J.  This  is  an  action  of  contract  to  recover  the  price  of  a 
lot  of  rough  calfskins,  alleged  to  have  been  sold  and  delivered  by  the 
plaintiffs  to  the  defendants. 

The  testimony  introduced  by  the  plaintiffs  at  the  trial  was  to  the  fol- 
lowing effect :  On  Wednesday,  November  6,  1872,  the  lot  of  calfskins 
in  question  was  piled,  apart  from  other  goods,  in  the  plaintiffs'  ware- 
house, when  Frederick  Jones,  one  of  the  defendants,  came  in  with  one 
Kuebler  (a  currier,  who  was  to  curry  the  skins  when  the  defendants 
bought  them),  and  made  an  oral  agreement  with  John  L.  Rodgers,  one 
of  the  plaintiffs,  to  purchase  the  entire  lot,  at  a  certain  price  per  pound 
for  the  merchantable  skins,  and  two-thirds  that  price  for  the  "culls"  or 
damaged  skins;  and  then  said  to  Kuebler,  "■  I  have  bought  this  lot  of 
skins,  and  I  want  you  to  stay  and  see  them  put  up  ;  but  I  don't  wish 
you  to  take  them  away  before  Friday  or  Saturday,  because  in  the  mean 
time  1  want  to  ascertain  in  regard  to  my  insurance."  Kuebler  answered 
that  he  would  send  his  team  and  take  the  skins  on  Saturday.  Jones 
then  left  the  warehouse,  and  Kuebler  remained  and  assorted  about  half 
the  skins,  throwing  them  over  and  separating  the  merchantable  from  the 
damaged  skins,  and  then  went  away,  and  the  plaintiffs  assorted  the  rest 
of  the  lot. 

The  expression  "  putting  up  the  skins"  means  assorting,  bundling, 
and  weighing.  The  skins  are  first  assorted  by  putting  the  merchantable 
skins  in  one  pile,  and  the  damaged  ones  in  another.  They  are  then  put 
in  bundle-,,  taking  out  every  twentieth  merchantable  skin  as  a  test,  and 
weighed.  The  test  skins  are  then  weighed  by  themselves,  spread  to  dry 
for  at  least  twenty-four  hours,  and  then  reweighed,  and  the  amount  of 
shrinking  on  the  whole  lot  is  ascertained  by  a  calculation  based  upon  the 
shrinking  of  the  test  skins. 

The  plaintiffs  put  up  this  lot  of  skins  in  the  usual  way.     The  test 


SECT.  V.]  RODGERS  V.   JONES.  857 

skins  were  spread  to  dry  from  Thursday  night  to  Saturday  morning,  and 
then  reweighed,  and  the  weights  entered  on  the  plaintiffs'  books,  and 
the  plaintiffs  set  the  whole  lot  of  skins  apart  by  itself  in  bundles  marked 
with  the  defendants'  initials.  On  Saturday,  November  9,  Kuebler  came 
into  the  plaintiffs'  warehouse,  was  told  that  the  skins  were  ready  for  him 
to  take,  and  was  asked  whether  his  team  would  be  there  soon,  and  he 
answered  that  it  would  not.  Nothing  further  took  place,  and  during  the 
following  night  the  skins  were  destroyed  by  fire. 

The  plaintiffs  offered  evidence  that  on  Wednesday,  after  Jones  had 
left  their  warehouse,  and  after  Kuebler  had  ceased  assorting  the  skins 
and  before  he  went  away,  the  following  conversation  took  place  between 
him  and  Rodgers  :  Kuebler  said,  "  There  is  no  need  of  my  staying  here 
any  longer.  This  is  a  good  lot  of  skins.  There  is  no  chance  for  any 
question  as  to  quality  of  the  skins,  and  you  go  ahead  and  put  them  up." 
Rodgers  answered,  "  No,  Mr.  Jones  left  you  to  see  them  weighed  up. 
It  won't  take  you  a  great  while  to  go  over  the  rest  of  them  ;  you  do  it." 
But  Kuebler  said,  "No,  I  can't  waste  my  time.  I  know  you  well 
enough.  I'll  take  the  risk  of  your  doing  it  all  right.  You  go  ahead 
and  put  up  the  skins."  This  evidence  was  objected  to  by  the  defend- 
ants, and  excluded  by  the  judge,  on  the  ground  that  there  was  nothing 
to  show  that  Kuebler  had  authority  to  bind  the  defendants  by  anything 
he  did  say. 

The  judge,  at  the  request  of  the  defendants,  ruled  that  there  was  no 
such  evidence  of  acceptance  and  delivery  of  the  skins  as  would  entitle 
the  plaintiffs  to  recover  in  this  action,  and  ordered  a  verdict  for  the  defend- 
ants ;  and  the  case  comes  before  us  on  the  plaintiffs'  exceptions. 

It  is  evident  that  the  learned  judge  used  the  word  kk  delivery  "  to  de- 
note what  is  necessary  to  pass  the  title  as  between  seller  and  buyer  ; 
and  that  the  effect  of  his  ruling  was  that  the  plaintiffs  had  failed  to 
prove  either  of  two  facts,  both  of  which  must  be  proved  in  order  to 
maintain  the  action  :  1st.  The  passing  of  the  title  between  the  parties, 
at  common  law.  2d.  An  acceptance  and  receipt,  within  the  meaning  of 
the  Statute  of  Frauds.     Gen.  Sts.  c.  105,  §  5. 

It  is  unnecessary  to  decide  whether,  under  the  peculiar  circumstances 
of  this  case,  the  jury  would  have  been  warranted  in  finding  that  the 
title  in  the  goods  passed  to  the  defendants  when  they  had  been  assorted 
and  set  apart  by  the  plaintiffs  in  the  absence  of  the  defendants  and  their 
agent.  In  order  to  constitute  an  acceptance  and  receipt  under  the 
Statute  of  Frauds,  it  is  not  enough  that  the  title  in  the  goods  has  vested 
in  the  buyer;  but  he  must  have  assumed  the  legal  possession  of  them, 
either  by  taking  them  into  the  custody  or  control  of  himself  or  of  his 
authorized  agent,  or  by  making  the  seller  or  a  third  person  his  bailee  to 
hold  them  for  him,  so  as  to  terminate  the  seller's  possession  of  the  goods 
and  lien  for  their  price.  Allowing  the  utmost  effect  to  the  testimony 
introduced  and  offered  by  the  plaintiffs,  yet,  so  long  as  the  goods  had 
not  been  delivered  to  the  defendants  or  their  agent,  but  remained  in  the 
plaintiffs'  warehouse,  the  plaintiffs,  even  if  they  could  be  held  to  have 


858  WALKER   V.   KUSSEY.  [CHAP.  VI. 

parted  with  the  title,  had  not  parted  with  their  possession  as  sellers,  or 
with  the  lien  incident  to  such  possession  ;  and  therefore  there  has  been 
no  such  acceptance  and  receipt  as  to  satisfy  the  Statute  of  Frauds. 
Safford  v.  McDonough,  120  Mass.  290;  Atherton  v.  Newhall,  123  Mass. 
141.  If  Kuebler  had  authority  to  receive  the  goods  in  behalf  of  the 
defendants,  there  is  no  evidence  that  he  exercised  that  authority. 

Exceptions  overruled. 

S.  B.  Ices,  Jr.,  and  67.  L.  Huntress,  for  the  plaintiffs. 

E.  D.  Sohier  (F.  C.  Welch  with  him),  for  the  defendants. 


SECTION  VI. 


"Give  Something  in  Earnest  to  bind  the  Bargain   or  in  Part 

of  Payment."1 

WALKER  v.   NUSSEY. 

In  the  Exchequer,  January  18,  1847. 

[Reported  in  16  Meeson  Sr  Welsby,  302.] 

Debt  for  goods  sold  and  delivered,  and  on  an  account  stated.  Plea,  — 
1st,  never  indebted  ;  2d,  a  set-off  for  goods  sold  and  delivered,  and 
on  an  account  stated.  Issue  thereon.  At  the  trial  before  the  under- 
sheriff  of  Yorkshire  it  appeared  that,  the  defendant  having  sold  goods 
to  the  plaintiff  to  the  amount  of  £4  14.s.  llrf.,  the  defendant  on  a  sub- 
sequent occasion  bought  of  him  a  lot  of  leather,  of  two  sorts,  by  sample. 
It  was  then  verbally  agreed  between  them  that  the  £4  14s.  lid.  due  to 
the  defendant  should  go  in  part  payment  by  him  to  the  plaintiff  for 

1  "  In  any  view  we  can  take  of  the  matter  we  perceive  no  sufficient  reason  for  sup- 
posing that  the  payment,  in  the  contemplation  of  the  framers  of  this  statute,  was 
restricted  to  a  payment  made  at  the  precise  period  of  making  the  verbal  agreement. 
It  is  don  lit  less  true  that,  until  such  payment  of  part  of  the  purchase-money,  the  con- 
tra, t  would  be  of  no  validity,  and  it  would  be  entirely  competent  for  either  party  to 
repudiate  it.  Neither  party  would  be  bound  by  its  terms;  the  vendee  would  be  under 
no  obligation  to  make  a  payment,  and  the  vendor  under  no  obligation  to  receive  one. 
Bnt  when  actually  made  and  accepted  with  the  full  concurrence  of  both  parties,  then 
the  contract  takes  effect ;  then  a  part  payment  of  the  purchase-money  has  been  made  ; 
and  then  the  parties  have  made  a  valid  contract.  This  would  seem  to  be  a  very  rea- 
Bonable  construction  of  the  statute  if  it  was  necessary  to  decide  the  abstract  question 
of  the  effect  of  payment  of  a  part  of  the  purchase-money  after  the  time  of  entering 
into  a  verbal  contract."     Per  Dewey,  J.,  Thompson  v.  Alger,  1:2  Met.  4-28,  4.{6. 

See  to  the  same  point,  Davis  v.  Moore,  18  .Me.  424;  Gault  v.  Brown,  4*  N.  II.  189. 
Where,  however,  as  in  New  York,  the  statute  expressly  requires  payment  at  the 
time  of  the  contract,  it  is  necessary  that  there  should  be  at  least  a  "  restatement  or 
oition  of  the  essential  terms  of  the  contract"  when  payment  is  made.  See 
Bissell  v.  Balcom,  39  N.  V.  275;  Hawley  v.  Keeler,  53  N.  Y.  114,  Hunter  v.  Wetsell, 
84  N.  V.  549. 


SECT.  VI.]  WALKER   V.   NUSSET.  859 

the  leather.     Next  clay  the  plaintiff  sent  in  the  goods  to  the  defendant 
with  this  invoice  :  — 

Halifax,  Oct.  14,  1846. 
Mk.  William  Nussey 

Bought  of  Thomas  Walker 

Dressed  hide  bellies,  287  at  dd £10  15s.    3d. 

Insole,  376  at  6fc 10    3       8 

£20  18s.  l\d. 
By  your  account  against  me 4  14     11 

The  defendant  returned  the  goods  within  two  days  as  inferior  to 
sample,  and  wrote  to  the  plaintiff  to  pay  him  the  £4  14s.  lid.  The 
plaintiff  refused  to  receive  the  goods  and  brought  this  action,  stating 
in  his  particulars  of  demand  that  the  action  was  brought  to  recover  the 
sum  of  £16  4s.,  as  the  "balance  of  the  following  account"  (setting 
out  the  above  invoice). 

The  under-sheriff  ruled  that  there  was  nothing  to  show  that  the 
£4  14s.  lid.  had  been  given  by  the  defendant  in  earnest  or  part  of 
payment  under  29  Car.  2,  c.  3,  §  17,  and  left  nothing  to  the  jury. 
except  on  the  point  of  acceptance  of  the  goods  by  the  defendant,  direct- 
ing them  to  find  for  him  if  they  thought  he  returned  the  goods  in  a 
reasonable  time  without  taking  to  them.  The  jury  found  a  verdict  for 
the  defendant  on  both  issues. 

Pollock,  C.  B.  I  think  no  rule  ought  to  be  granted.  The  plaintiff 
sues  for  goods  sold  and  delivered  by  him  to  the  defendant  above  £10 
in  value  ;  and  it  was  admitted  that  the  defendant  had  previously  sold 
him  goods  for  £4  14s.  lid.  On  the  new  dealing  between  them  the 
agreement  was,  that  that  sum  should  be  taken  as  part  payment  by  the 
defendant,  and  that  he  should  only  pay  the  plaintiff  the  difference 
between  that  sum  and  the  amount  of  the  goods  bought  from  him.  This 
contract  was  verbal ;  but  it  is  argued  that  the  £4  14s.  lid.  was  a  part 
payment  by  the  defendant  so  as  to  take  the  case  out  of  the  Statute  of 
Frauds.  But  I  think  it  was  not.  Here  there  was  nothing  but  one 
contract;  whereas  the  statute  requires  a  contract  and.  if  it  be  not  in 
writing,  something  besides.  The  question  here  is,  whether  what  took 
plaee  amounted  to  a  giving  of  earnest  or  in  part  of  payment  at  the  time 
of  the  bargain,  the  goods  bought  by  the  defendant  not  having  been 
then  delivered  to  him  by  the  plaintiff.  Nothing  turns  on  the  effect  of 
their  subsequent  delivery.  Had  these  parties  positively  agreed  to 
extinguish  the  debt  of  £4  odd,  and  receive  the  plaintiff's  goods  pro 
tanto  instead  of  it,  the  law  might  have  been  satisfied  without  the  cere- 
mony of  paying  it  to  the  defendant  and  repaying  it  by  him.  But  the 
actual  contract  did  not  amount  to  that,  and  there  has  been  no  part  pay- 
ment within  the  statute. 

Parke,  B.  I  am  of  the  same  opinion,  and  think  the  ruling  at  the 
trial  was  right.  The  facts  seem  to  be  these:  The  plaintiff  owed  the 
defendant  a  sum  of  £4  14s.  lid.     The  parties  then  verbally  agreed  that 


860  ARTCHER   V.    ZEH.  [CHAP.  VI. 

the  plaintiff  should  sell  to  the  defendant  goods  above  £10  in  value, 
according  to  a  given  sample,  the  plaintiffs  debt  to  go  in  part  payment, 
and  the  residue  to  be  paid  by  the  defendant.  No  evidence  was  given 
of  the  actual  payment  or  discharge  of  the  debt  due  from  the  plaintiff, 
so  that  all  rested  in  the  agreement  merely.  If  Mr.  Addison  conld  have 
shown  the  contract  to  have  been  that  the  parties  were  to  be  put  in  the 
same  situation  at  that  time  as  if  the  plaintiff's  debt  to  the  defendant 
had  then  been  paid,  or  as  if  it  had  been  paid  to  the  defendant  and 
repaid  by  him  to  the  plaintiff  as  earnest,  the  statute  might  have  been 
satisfied  without  any  money  having  passed  in  fact ;  but  the  agreement 
was  in  fact  that  the  goods  should  be  delivered  by  the  plaintiff  by  way 
of  satisfaction  of  the  debt  previously  due  from  him  to  the  defendant, 
and  that  the  defendant  should  pay  for  the  rest.  Then  the  buyer  did 
not  "  give  something  in  earnest  to  bind  the  bargain  or  in  part  of  pay- 
ment." The  "  part  payment"  mentioned  in  the  statute  must  take  place 
either  at  or  subsequent  to  the  time  when  the  bargain  was  made.  Had 
there  been  a  bargain  to  sell  the  leather  at  a  certain  price,  and  subse- 
quently an  agreement  that  the  sum  due  from  the  plaintiff  was  to  be 
wiped  off  from  the  amount  of  that  price,  or  that  the  goods  delivered 
should  be  taken  in  satisfaction  of  the  debt  due  from  the  plaintiff,  either 
might  have  been  an  equivalent  to  part  payment,  as  an  agreement  to  set 
off  one  item  against  another  is  equivalent  to  payment  of  money.  But 
as  the  stipulation  respecting  the  plaintiff's  debt  was  merely  a  portion  of 
the  contemporaneous  contract,  it  was  not  a  giving  something  to  the 
plaintiff  by  way  of  earnest  or  in  part  of  payment,  then  or  subsequently. 

Hide  refused.1 


ARTCHER  v.   ZEH. 
Supreme  Court  of  New  York,  May  Term,  1843 

[Reported  in  5  Hill,  200.] 

Error  to  the  Mayor's  Court  of  the  city  of  Albany,  where  Zeh  sued 
Artcher  in  assumpsit  for  money  had  and  received.  The  facts  upon 
which  the  plaintiff  relied  were  proved  by  Angus  McDuffe,  and  were 
substantially  as  follows  :  Artcher  agreed  to  sell  certain  land  to  McDuffe, 
but  in  consequence  of  the  latter's  inability  to  pay  the  purchase-money 
it  was  agreed  between  them  that,  if  McDuffe  would  find  another  pur- 
chaser, Artcher  would  convey  to  him  and  account  to  McDuffe  for 
whatever  the  land  brought  over  $1,403.19.  In  pursuance  of  this 
arrangement  Artcher  conveyed  to  Wright  and  Wells  on  the  30th  of 
October,  1839,  for  the  sum  of  $1,640.87,  taking  their  mortgage  for  the 
amount  payable  in  two  equal  instalments  on  the  1st  of  June  and  1st  of 
December,  1840.     Zeh  held  a  note  against  McDuffe  for  more  than  the 

1  AldBRBOS  and  I'i.att,  BR.,  delivered  brief  concurring  opinions. 


SECT.  VI.]  ARTCHER    V.    ZEH.  861 

difference  between  $1,403.19  and  the  sura  for  which  the  land  sold,  and 
the  lnttcr  agreed  to  transfer  his  interest  in  such  difference  to  Zeh,  who 
remarked  that  if  Artcher  would  assent  to  the  transfer  he  (Zeh)  would 
credit  or  indorse  the  amount  on  the  note.  MeDuffe  accordingly  called 
on  Artcher  and  obtained  from  him  a  promise  to  pay  over  the  sum 
claimed  by  the  former  when  the  mortgage  should  be  paid.  This  was 
immediately  after  the  mortgage  was  given.  The  mortgage  was  paid 
to  Artcher  about  the  time  it  fell  due  ;  but  he  refused  to  fulfil  his  engage- 
ment, by  paying  any  part  of  the  money  to  Zeh,  who  thereupon  com- 
menced this  action  in  the  court  below.  At  the  close  of  McDuffe's 
examination  he  was  objected  to  by  the  defendant's  counsel  as  an  incom- 
petent witness  for  the  plaintiff,  and  a  motion  was  thereupon  made  to 
have  his  testimony  stricken  out  of  the  case.  The  motion  was  denied, 
and  the  defendant's  counsel  excepted.  It  was  not  shown  that  any  of 
the  transactions  or  agreements  testified  to  by  MeDuffe,  except  the  deed 
and  mortgage,  were  reduced  to  writing;  nor  did  it  appear  that  Zeh  had 
actually  credited  MeDuffe  with  the  claim  against  Artcher,  indorsed  it 
on  the  note,  or  given  a  receipt  for  it  in  satisfaction  or  in  any  other 
form. 

The  defendant's  counsel  moved  for  a  non-suit  on  the  ground,  1.  That 
inasmuch  as  the  assignment  from  MeDuffe  to  Zeh  was  not  in  writing, 
nor  the  note  extinguished  thereby,  the  assignment  was  void  by  the 
Statute  of  Frauds;  2.  That  Artcher  was  shown  to  be  a  trustee  of 
McDuffe's  interest  in  the  mortgage  moneys,  that  such  trust  was  void 
under  the  Revised  Statutes,  and  that  the  agreement  between  Artcher, 
MeDuffe,  and  Zeh  was  therefore  also  void;  and  3.  That  Artcher's 
promise  to  pay  the  money  to  Zeh  was  not  to  be  performed  within  a  year, 
and  was  for  that  reason  void  by  the  Statute  of  Frauds.  The  court 
below  denied  the  motion,  and  the  defendant's  counsel  excepted.  Ver- 
dict and  judgment  for  the  plaintiff.  The  defendant  sued  out  a  writ  of 
error. 

E.  W.  PecJcham,  for  the  plaintiff  in  error. 
H.  G.  Wheaton,  for  the  defendant  in  error. 

By  the  Court,  Cowen,  J.  .  .  .  The  first  objection  taken  on  the  mo- 
tion for  a  non-suit  should  have  been  allowed.  By  the  2  Rev.  Sts.  70 
(2d  ed.),  §  3,  in  order  to  pass  the  interest  in  a  chose  in  action  where 
the  price  exceeds  $50  there  must  be  a  writing,  or  the  evidences 
of  the  debt  or  some  of  them  must  be  delivered,  or  some  part  of  the 
purchase-money  be  paid  ;  otherwise  the  transfer  is  void.  It  is  sup- 
posed that  here  was  something  equivalent  to  part  payment  of  the 
monev,  because  the  terms  of  the  agreement  were  such  as  to  extinguish 
pro  tanto  the  debt  due  from  MeDuffe  to  Zeh  ;  in  other  words,  that  the 
transfer  was  accepted  as  a  payment,  and  per  se  worked  a  satisfaction. 
MeDuffe  agreed  with  Zeh  that  Artcher  should  pay  him.  and  Zeh  stipu- 
lated that  if  Artcher  would  agree  to  pay  him  he  would  give  MeDuffe 
credit  for  the  sum,  or  would  indorse  it  on  the  note.  But  it  never  was 
credited,  indorsed,  or  receipted  in  any  form  ;  at  least  nothing  of  the 


862  ARTCHER   V.    ZEH.  [CHAP.  VI. 

kind  was  shown.  It  need  not  be  denied  that  a  promise  to  indorse  or 
credit  Artcher's  agreement  to  pay,  in  satisfaction  or  payment  of  so 
much  as  the  sum  amounted  to,  would  operate  as  an  extinguishment ; 
or  in  other  words,  that  an  agreement  to  give  an  absolute  credit  would 
have  that  effect.  But  the  agreement  leaves  it  equal  whether  the  in- 
dorsement or  credit  was  not  to  be  the  usual  conditional  one,  to  become 
absolute  on  the  assigned  claim  proving  available.  Such  is  the  legal 
construction  of  an  arrangement  to  take  a  claim  against  a  third  person, 
to  be  applied  upon  a  precedent  debt ;  and  the  law  will  not  hold  it  to  be 
an  absolute  payment  unless  there  be  an  express  agreement  to  take  it 
as  per  se  a  satisfaction.  In  the  absence  of  such  an  agreement  the  law 
will  not  compel  the  creditor  to  apply  it  in  discharge  till  the  money  be 
actually  received.  Here  are  no  such  words  as  "absolute  payment," 
"  absolute  satisfaction,"  "absolute  discharge,"  or  the  like,  to  indicate 
that  the  credit  was  to  differ  from  the  one  usual  in  such  cases.  Even 
the  transfer  of  a  negotiable  note  against  a  third  person  would  not  have 
been  a  satisfaction  on  the  terms  here  used.  But  we  are  not  left  to 
implication.  If  this  plaintiff  really  intended  to  work  an  extinguishment 
of  his  claim  against  McDuffe,  why  did  he  not  indorse  Artcher's  promise 
as  so  much  money  paid  on  the  note,  or  credit  or  give  a  receipt  for  it  as 
such  ?  Down  to  the  very  time  of  the  trial  he  had  clone  neither.  He 
left  his  note  to  speak  the  same  language  as  it  did  before  the  arrange- 
ment was  made  ;  at  least  we  are  to  intend  that  he  did,  for  his  counsel 
do  not  pretend  that  he  had  applied  the  demand  said  to  have  been  trans- 
ferred, in  any  form,  absolute  or  conditional.  In  refusing  to  apply  it 
absolutely  1  admit  he  acted  according  to  the  legal  inference  of  what 
was  intended  ;  but  the  omission  strengthens  that  inference.  It  took 
away  all  doubt  of  what  the  parties  intended,  and  left  no  question  for 
the  jury.  Suppose  this  action  had  been  against  McDuffe,  and  it  had 
appeared  that  the  money  had  never  been  paid  by  the  mortgagors  and 
was  never  like  to  be,  or  that  Zeh  had  failed  to  collect  of  Artcher  for 
any  cause  not  imputable  to  Zeh  :  clearly  the  mere  arrangement  between 
him  and  McDuffe  could  not  be  allowed  as  a  bar. 

Since  the  revised  Statute  of  Frauds  putting  equitable  transfers  of 
choses  in  action  on  a  footing  similar  to  that  on  which  sales  of  goods 
stand,  if  there  be  no  writing  and  no  delivery  the  assignee  must  pay 
something,  at  least  part  with  something  of  value.  The  statute  requires 
that  he  should  pay  some  part  of  the  purchase-money.  No  doubt  it 
must  be  taken  in  its  spirit  to  mean  anything  or  part  of  anything, 
given  by  way  of  consideration,  which  is  money  or  money's  worth.  But 
the  object  was  to  have  something  pass  between  the  parties  beside  mere 
words,  some  symbol  like  earnest  mone\'.  2  Black.  Com.  448.  Here 
everything  lies  in  parol ;  and  even  if  there  had  been  the  express  agree- 
ment which  is  set  up, — an  agreement  for  absolute  credit,  —  I  should 
doubl  whether  the  statute  would  be  satisfied  without  something  more; 
at  least  some  absolute  indorsement  or  written  credit  at  the  time.  One 
object  of  the  statute  was  to  prevent  perjury.     The  method  taken  was 


SECT.  VI.]  EDGERTON   V.    HODGE.  863 

to  have  something  done,  not  to  rest  everything  upon  mere  oral  agree- 
ment. Here  even  the  agreement  is  not  direct,  but  rather  sought  to 
be   raised   by  way  of  construction  on  an  equivocal  conversation. 

Taken  in  any  view,  therefore,  I  think  the  assignment  was  void  within 
the  intent,  as  it  is  clearly  within  the  words  of  the  Statute  of  Frauds. 

The  judgment  must  be  reversed  ;  a  venire  de  novo  to  go  from  the 
court  below  ;  the  costs  to  abide  the  event.  Ordered  accordingly. 


SHELDON   EDGERTON  v.   J.   H.    C.   HODGE. 
Supreme  Court  of  Vermont,  January  Term,  1869. 

[Reported  in  41    Vermont  Reports,  676.] 

Assumpsit,  which  was  referred  to  a  referee,  who  reported  :  — 
"That  on  the  30th  of  June,  1864,  the  parties  made  an  agreement  by 
parol  by  which  the  defendant  agreed  to  sell  to  the  plaintiff  what  new- 
milk  cheese  he  then  had  on  hand  and  unsold,  amounting  to  975  pounds, 
and  the  new-milk  cheese  he  should  make  thereafter  during  the  season  ; 
and  the  plaintiff  agreed  to  pay  the  defendant  therefor  at  the  rate  of  15£ 
cents  per  pound,  and  every  twenty  days  thereafter  agreed  to  call  at  the 
defendant's  house  in  Dorset,  select  such  cheese  as  would  Vie  fit  for 
market,  attend  its  weight  there,  and  pay  the  defendant  for  the  cheese 
so  selected  and  weighed,  and  then  the  defendant  was  to  deliver  the 
same  to  the  plaintiff  at  the  railroad  depot  in  Manchester.  The  day 
after  the  above  agreement  was  made  the  defendant  by  his  son  Albert 
Hodge  wrote  and  sent  by  mail  a  letter  to  the  plaintiff  (a  copy  of  which 
is  annexed,  dated  July  1,  1864),  depositing  the  same  at  the  post-office 
in  East  Rupert,  directed  to  the  plaintiff  at  Pawlet  and  received  by  him 
by  mail  on  the  same  day.  The  next  day,  after  the  return  mail  from 
Pawlet  to  East  Rupert  had  gone  out,  it  being  on  Saturday,  the  plaintiff 
enclosed  in  a  letter  directed  to  the  defendant  at  East  Rupert,  and  left 
it  in  the  post-office  at  Pawlet  to  be  carried  by  mail  to  the  defendant, 
the  sum  of  $50.  (A  copy  of  the  plaintiff's  letter  is  hereunto  annexed. 
and  the  envelope  enclosing  the  S50  is  postmarked  '-Pawlet.  July  4.") 
This  letter  of  the  plaintiff  was,  on  the  8th  of  July,  1864,  handed  to 
the  said  Albert  Hodge  by  the  postmaster  of  East  Rupert,  and  it  was 
on  the  same  day  carried  by  him  to  the  defendant,  opened  by  the  said 
Albert,  the  $50  refused  to  be  received  by  the  defendant,  and  the  letter 
of  the  plaintiff,  with  the  850  and  the  envelope  enclosing  them,  were  by 
mail  returned  to  the  plaintiff  with  no  communication  accompanying 
them  from  the  defendant.  The  plaintiff  received  the  so  enclosed  wrap- 
per, money  and  letter,  on  the  9th  of  July.  1864,  and  kept  the  same  850 
for  six  months  thereafter.  A  daily  mail  is  carried  between  the  post- 
oflices  of  Pawlet  and  East  Rupert,  a  distance  of  six  miles.     On  the 


864  EDGERTON    V.    HODGE.  [CHAP.  VI. 

20th  of  July,  1864,  the  plaintiff  sent  word  to  the  defendant  to  deliver 
what  cheese  he  had  fit  for  market  to  the  depot  in  Manchester.  The 
defendant  replied  to  the  messenger  that  he  had  no  cheese  for  the 
plaintiff.  No  other  communication  ever  took  place  between  the  parties 
in  regard  to  the  cheese  after  the  return  of  the  money  as  above  stated 
until  this  suit  was  brought.  The  defendant  sold  all  his  cheese  to  other 
parties,  making  his  first  sale  on  the  26th  of  July,  1864. 

"  If  the  court  shall  be  of  opinion  that  from  the  foregoing  facts  the 
plaintiff  is  entitled  to  recover,  and  that  the  rule  of  damages  should  be 
the  New  York  market  price  for  cheese  for  the  season  of  1864,  deduct- 
ing freight  and  commission,  then  I  find  due  the  plaintiff  8411.01.  If 
the  current  price  in  the  country,  paid  by  purchasers  and  sent  by 
them  to  market,  is  to  be  the  rule,  then  I  find  due  the  plaintiff  the  sum 
of  $306.32. 

Dorset,  July  1,  1864. 
31  It.   ElMiKKTON. 

Sir, —  According  to  our  talk  yesterday  you  bought  my  cheese  for 
the  season.  I  shall  stand  to  it,  but  shall  want  you  to  pay  me  $50 
to  bind  it.  I  s'pose  there  is  nothing  holding  unless  there  is  money 
paid.  I  do  not  wish  you  to  think  I  wish  to  fly  from  letting  you  have 
it,  so  that  it  is  sure.  I  will  pay  you  interest  on  the  money  until  the 
cheese  is  delivered. 

Yours  in  haste,  J.  H.  C.  Hodge, 

Per  A.  H. 

Pawlet,  July  2,  1864. 

Mr.  Hodge. 

Dear  Sir,  —  I  enclose  }Tou  $50  to  apply  on  your  daiiy  of  cheese 
as  you  proposed.  Yours  truly, 

S.  Edgerton. 

The  court  at  the  March  term,  1868,  Pierpoint,  C.  J.,  presiding,  ren- 
dered judgment  on  the  report  that  the  plaintiff  recover  of  the  defendant 
the  smaller  sum  reported  by  the  referee,  and  for  his  costs,  to  which  the 
defendant  excepted. 

Edgerton  <b  Nicholson  and  J.  B.  Bromley,  for  the  defendant. 

Fayette  Potter,  for  the  plaintiff. 

The  opinion  of  the  court  was  delivered  by 

Wilsox,  J.  The  parol  agreement  entered  into  by  the  parties  June 
30th,  being  for  the  sale  of  goods,  wares,  and  merchandise,  for  the  price 
of  $40  and  more,  is  within  the  .Statute  of  Frauds,  and  inoperative  unless 
taken  out  of  the  statute  by  the  subsequent  acts  of  the  parties.  It  is 
claimed  by  the  plaintiff  that  the  defendant's  letter  under  date  of  July 
1st,  and  the  depositing  of  the  plaintiff's  letter  with  the  $50  in  the  post- 
office  on  the  2d  of  that  month,  constitute  a  payment  of  part  of  the 
purchase- money  within  the  meaning  of  the  statute.  It  will  be  observed 
that  when  those  letters  were  written  no  binding  agreement  had  been 
concluded.     The  defendant  in  his  letter  of  July  1st  sa}-s  :  "According 


SECT.  VI.]  EDGERTON   V.    HODGE.  865 

to  our  talk  yesterday,  you  bought  my  cheese  for  the  season.  I  shall 
stand  to  it,  but  shall  want  $50  to  bind  it."  By  that  letter  the  plaintiff 
was  notified  that  he  could  make  the  bargain  binding  upon  himself  as 
well  as  the  defendant  by  paying  to  the  defendant  the  sum  demanded 
for  that  purpose.  The  plaintiff  on  the  2d  of  July  enclosed  $50  in  a 
letter  directed  to  the  defendant,  and  deposited  it  in  the  post-office, 
which  letter  was  delivered  to  the  defendant  on  the  8th  of  that  month. 
He  did  not  accept  the  money,  but  returned  it  to  the  plaintiff.  It  is 
clear  that  the  act  of  depositing  the  letter  and  the  money  in  the  post- 
office  was  not  a  payment  to  the  defendant.  His  letter  did  not  direct 
the  money  to  be  sent  by  mail :  it  contains  nothing  that  would  indicate 
that  the  defendant  expected  the  plaintiff  would  reply  by  letter,  or 
accept  the  proposition  by  depositing  the  money  in  the  post-office  :  and 
the  fact  that  the  defendant  by  letter  offered  to  allow  the  plaintiff  to 
perfect  the  agreement  by  paying  part  of  the  purchase-money  did  not 
authorize  or  invite  the  plaintiff  to  send  the  money  by  mail  or  make  the 
mail  the  defendant's  carrier  of  the  money.  The  language  of  the  defend- 
ant's letter  is,  "I  shall  want  you  to  pay  me  $50  to  bind  it;"  that  is, 
to  make  it  a  valid  contract. 

The  money  when  deposited  in  the  post-office  belonged  to  the  plain- 
tiff; it  belonged  to  the  plaintiff  while  being  carried  by  mail  to  the 
defendant,  and  it  would  continue  the  property  of  the  plaintiff  unless 
accepted  by  the  defendant.  The  plaintiff  took  the  risk  not  only  of  the 
safe  conveyance  of  the  money  to  the  defendant,  but  also  as  to  the  will- 
ingness of  the  defendant  to  accept  it.  The  defendant's  letter,  not 
constituting  such  a  note  or  memorandum  of  the  agreement  as  the  statute 
required,  left  it  optional  with  the  defendant  to  accept  or  refuse  part 
payment  when  offered  to  him,  the  same  as  if  the  defendant  had  sent  to 
the  plaintiff  a  verbal  communication  of  the  same  import  as  the  defend- 
ant's letter.  A  point  is  made  by  counsel  as  to  whether  the  money  was 
conveyed  and  delivered  or  offered  to  the  defendant  within  a  reasonable 
time  after  his  letter  was  received  by  the  plaintiff,  but  it  seems  to  us 
that  the  time  the  money  was  offered  is  not  material.  We  think,  even 
if  the  plaintiff  had  gone  immediately  after  receiving  the  defendant's 
letter  and  offered  and  tendered  to  him  the  $50,  the  defendant  would 
have  been  under  no  legal  obligation  to  accept  it.  The  mere  offer  of  the 
defendant  to  receive  the  money  would  not  estop  him  from  refusing  to 
accept  it ;  but  in  order  to  take  the  case  out  of  the  operation  of  the 
statute  it  required  the  agreement  or  consent  of  both  parties  as  to  pay- 
ment by  the  plaintiff  and  acceptance  of  it  by  the  defendant.  Upon  the 
facts  of  this  case  we  think  the  rights  of  the  parties  rest  upon  and  are 
to  be  determined  by  the  verbal  agreement  entered  into  by  them  on  the 
30th  of  June,  and  that  their  subsequent  attempts  to  make  that  agree- 
ment a  valid  contract  cannot  aid  the  plaintiff.  The  statute  provides 
that  "  no  contract  for  the  sale  of  any  goods,  wares,  or  merchandise,  for 
the  price  of  $40  or  more,  shall  be  valid  unless  the  purchaser  shall  accept 
and  receive  part  of  the  goods  so  sold,  or  shall  give  something  in  earnest 

55 


866  EDGERTON   V.    HODGE.  [CHAP.  VI. 

to  bind  the  bargain  or  in  part  payment,  or  unless  some  note  or  memo- 
randum of  the  bargain  be  made  in  writing  and  signed  by  the  party 
to  be  charged  thereby,  or  by  some  person  thereunto  by  him  lawfully 
authorized." 

The  very  language  of  the  statute  above  quoted  implies  that,  in  which- 
ever way  the  parties  verbally  agree  or  propose  that  a  contract  for  the 
sale  of  goods,  wares,  or  merchandise,  for  the  price  of  $40  or  more,  shall 
be  made  exempt  from  the  Statute  of  Frauds,  whether  it  be  by  the  pur- 
chaser accepting  and  receiving  part  of  the  goods  so  sold,  by  giving 
something  in  earnest  to  bind  the  bargain  or  in  part  payment,  or  by 
making  a  note  or  memorandum  of  the  bargain,  it  must  be  done,  if  done 
at  all,   by  the  consent  of  both  parties.     It  is  obvious  that  it  would 
require  the  consent  of  the  purchaser  to  accept  and  receive  part  of  the 
goods,  and  he  could  not  receive  them  unless  by  consent  of  the  seller ; 
the  purchaser  could  not  give  something  in  earnest  to  bind  the  bargain 
or  in  part  payment,  unless  the  seller  accept  and  receive  it ;  nor  could  a 
note  or  memorandum  of  the  bargain  be  made  and  signed,  unless  by  the 
consent  of  the  party  to  be  charged  thereby.     A  valid  contract  is  an 
agreement  or  covenant  between   two  or  more  persons,  in  which  each 
party  binds  himself  to  do  or  forbear  some  act ;  and  each  acquires  a 
right  to  what  the  other  promises  ;  but  if  the  parties  in  making  a  con- 
tract like  the  present  one  omit  to  do  what  the  statute  requires  to  be 
done  to  make  a  valid  contract,   it  would  require  the  consent  of  both 
parties  to  supply  the  thing  omitted.     Suppose  it  had  been  one  stipula- 
tion of  the   verbal  agreement  on  the  30th  of  June  that  the  plaintiff 
should  give  and  the  defendant  receive  something  in  earnest  to  bind 
the  bargain,  and  in  pursuance  of  such  stipulation  the  plaintiff  had  then 
offered  to  give  or  pay  the  amount  so  stipulated,  and  the  defendant  had 
refused  to  receive  it,  saying  that  he  preferred  not  to  receive  any  money 
until  he  had  delivered  the  whole  or  part  of  the  property,  or  had  refused 
to  accept  the  money  so  offered,  or  do  any  other  act  to  bind  the  bar- 
gain, without  giving  any  reason  for  such  refusal,  it  would  be  evident 
that  he  did  not  intend  to  make  a  binding  contract.     But  the  fact  that 
he  had  made  such  verbal  agreement  to  receive  something  or  to  do  some 
other  act  to  bind  the  bargain,  and  that  the  plaintiff  was  ready  and 
offered  to  comply  on  his  part,  would  not  take  the  agreement  out  of  the 
statute.      A  verbal  stipulation   to  give   and   to  receive  something  in 
earnest  to  bind  the  bargain  or  in  part  payment,  or  a  verbal  promise  to 
make  a  note  or  memorandum  in  writing  necessary  to  exempt  the  agree- 
ment from  the  operation  of  the  statute,  is  as  much  within  the  Statute 
of  Frauds  as  is  the  agreement  of  contract  taken  as  a  whole  ;  and  a  note 
or  memorandum  in  relation  to  giving  something  in  earnest  to  bind  the 
bargain  or  in  part  payment,  which  is  insufficient  of  itself  to  take  the 
contract  out  of  the  statute,  is  also  insufficient  to  make  the  contract 
binding  upon  either  part}'. 

The  judgment  of  the  county  court  is  reversed,  and  judgment  for  the 
defendant  for  his  costs. 


SECT.  VII.]  SIMON   V.    METTVTER.  867 


SECTION   VII. 

"  Ok  that  some  Note  or  Memorandum  in  "Writing  of  the  said  Bar- 
gain BE  .made  AND  SIGNED  BY  THE  Parties  TO  BE  CHARGED  nv  SUCH 
Contract,  or  their  Agents  thereunto  lawfully  authorized." 

SIMON  v.  METIVIER   or  MOTIVOS. 

In  the   King's   Bench,   Trinity  Term,   17G6. 

[Reported  in  1   William  Blackstone,  599.] 

Case  for  not  taking  away  certain  drugs  to  the  value  of  £110,  which 
were  bought  by  the  defendant  at  an  auction  ;  and  having  since  sunk 
in  their  value  he  refused  to  take  them,  and  they  were  re-sold  at  an 
under  price  ;  and  this  action  was  brought  to  recover  the  difference.  It 
appeared  on  evidence  that,  by  the  terms  of  the  sale,  if  6<7.  was  not  ten- 
dered by  the  buyer  the  goods  might  be  put  up  again  and  re-sold  ;  that 
no  6d.  was  paid  ;  but  that  the  auctioneer  took  down  the  price  and 
buyer's  name  in  writing  ;  and  that  after  the  day  of  bidding  and  before 
the  day  of  payment  the  goods  were  weighed  off  to  a  servant  of  the 
defendant. 

The  jury  found  a  verdict  for  the  plaintiff. 

Stowe  and  Davenport  moved  for  a  new  trial. 

Norton  and  Wallace  showed  cause. 

Lord  Mansfield,  C.  J.  The  question  is  singly  upon  the  Statute  of 
Frauds:  whether  the  contract  is  void  by  the  provisions  of  that  positive 
law.  The  object  of  the  Legislature  in  that  statute  was  a  wise  one; 
and  what  the  Legislature  meant  is  the  rule  both  at  law  aud  equity  ; 
for  in  this  case  they  are  both  the  same.  The  key  to  the  construction 
of  the  act  is  the  intent  of  the  Legislature  ;  and  therefore  many  cases, 
though  seemingly  within  the  letter,  have  been  let  out  of  it.  More 
instances  have  indeed  occurred  in  courts  of  equity  than  of  law,  but  the 
rule  is  in  both  the  same.  For  instance,  where  a  man  admits  the  con- 
tract to  have  been  made  it  is  out  of  the  statute  ;  for  here  there  can  be 
no  perjury.  Again,  no  advantage  shall  be  taken  of  this  statute  to  pro- 
tect the  fraud  of  another.  Therefore  if  the  contract  is  executed,  it  is 
never  set  aside.  And  there  are  many  other  general  rules  by  way  of 
exception  to  the  statute. 

There  are  two  lights  in  which  the  present  case  may  be  considered. 

1st,  Whether  sales  by  auction  are  within  the  statute.  They  certainly] 
existed  in  England,  and  in  all  other  countries,  at  the  date  of  this  stat- 
ute. The  auctioneer  is  a  third  person  who  is  to  many  intents  the  agent 
of  both  parties.  The  solemnity  of  that  kind  of  sale  precludes  all  per- 
jury as  to  the  fact  itself  of  sale.  The  contract  is  executed  when  the 
hammer  is  knocked  down.  I  remember  a  case  where  some  sugars  were 
bought  at  an  auction,  and  afterwards  consumed  by  lire  in  the  auction 
warehouse;  aud  the  loss  fell  upon  the  buyer.     The  circumstance  of 


868  SAUNDERSON   V.   JACKSON.  [CHAP.  VI. 

weighing  off  is  similar  to  this,  and  very  material  in  the  present  case. 
And  according  to  the  inclination  of  my  present  opinion  auctions  in 
general  are  not  within  the  statute.  But  this  is  not  necessary  to  be  now 
determined  ;  for  if  they  are  within  it, 

2d,  The  requisites  of  the  statute  are  well  complied  with.  Every 
bidding  is  an  accession  to  the  conditions  of  sale.  The  name  is  put 
down  by  the  buyer's  authority.  No  latitude  is  left  to  fraud  and  per- 
jury from  the  loose  memory  of  witnesses. 

Wilmot,  J.  It  may  be  a  great  question  whether  sales  by  auction 
are  within  the  statute.  They  were  certainly  not  meant  by  the  act, 
which  was  to  extend  only  to  the  mischiefs  created  by  private  and  clan- 
destine sales.  Had  the  Statute  of  Frauds  been  always  carried  into 
execution  according  to  the  letter,  it  would  have  done  ten  times  more 
mischief  than  it  has  done  good,  by  protecting  rather  than  by  pre- 
venting frauds.  I  therefore  incline  to  think  sales  by  auction  openly 
transacted  before  five  hundred  people  are  not  within  the  statute. 
But  the  present  agreement  is  strictly  within  the  restrictions  of  the 
act.  As  to  the  objection  for  want  of  mutuality  ;  that  power  of  re-sell- 
ing was  optional  in  the  seller,  if  he  pleased  to  require  the  earnest,  and 
it  was  denied.  And  the  meaning  clearly  was,  that  upon  refusal  goods 
may  be  instantly  put  up  again.  Not  being  asked,  the  contract  clearly 
bound  the  seller  without  it ;  and  therefore  shall  bind  the  buyer.  The 
weighing  it  afterwards  is  a  very  corroborating  circumstance.  I  remem- 
ber the  case  of  the  sale  of  some  balsam,  which  was  weighed  and  put 
into  a  pot  of  the  seller  instead  of  a  pitcher  which  the  buyer  had 
brought  and  left  at  the  seller's  shop.  This  was  held  a  sufficient  deliv- 
ery to  bind  the  contract. 

Yates,  J.  I  much  doubt  whether  the  contract  was  within  the  Stat- 
ute of  Frauds.  If  it  was,  I  am  clear  that  the  requisites  of  the  statute 
were  duly  observed.  Where  Sir  Thomas  Osborne  bespoke  a  chariot, 
that  being  in  its  nature  not  deliverable  immediately,  it  was  held  not 
within  the  statute  ;  because  not  capable  of  all  the  requisites  of  the 
statute.  I  look  upon  this  contract  as  executory  in  its  nature,  and 
being  to  be  executed  within  a  year,  is  so  far  not  within  the  statute. 

Aston,  J.  I  think  the  terms  of  the  sale  and  the  requisites  of  the 
statute  were  fully  complied  with  by  giving  in  his  name  as  a  purchaser ; 
which  is  better  than  the  sixpence  earnest. 

Rule  nisi  for  a  new  trial  discharged. 


SAUNDERSON   v.   JACKSON   and  Another. 
In  the  Common  Pleas,  June  28,   1800. 

[Reported  in  2  Bosanrpiet  Sf  Puller,  238.] 

This  was  an  action  on  the  case  against  the  defendants  for  not  deliv- 
ering 1000  gallons  of  gin  to  the  plaintiff  within  a  certain  time  accord- 


SECT.  VII.]  SAUNDERSON   V.   JACKSOX.  869 

ing  to  a  bargain  entered  into  between  them.  There  was  a  second 
count  for  not  delivering  within  a  reasonable  time. 

The  cause  was  tried  before  Lord  Eldon,  C.  J.,  at  the  Guildhall  sit- 
tings after  last  Easter  term,  when  the  contract  for  the  delivery  of  the 
gin  having  been  proved  on  the  part  of  the  plaintiff,  the  defendants 
insisted  that  the  case  was  within  the  Statute  of  Frauds,  inasmuch  as  there 
was  no  note  or  memorandum  in  writing  of  the  bargain.  The  circum- 
stances were  as  follows  :  At  the  time  the  order  for  the  gin  was  given 
by  the  plaintiff  to  the  defendants  a  bill  of  parcels  was  delivered  to  the 
former,  the  printed  part  of  which  was  "  London.  Bought  of  Jackson 
and  Hankin,  distillers,  No.  8  Oxford  Street,"  and  then  followed  in 
waiting,  "  1000  gallons  of  gin,  1  in  5  gin,  7s.  £350."  About  a  mouth 
after  the  above  period  the  defendants  also  wrote  the  following  letter  to 
the  plaintiff:  "  Sir,  we  wish  to  know  what  time  we  shall  send  you  a 
part  of  your  order,  and  shall  be  obliged  for  a  little  time  in  delivery  of 
the  remainder  ;  must  request  you  to  return  our  pipes.  We  are  your 
humble  servants,  Jackson  and  Hankin." 

On  this  evidence  his  Lordship  directed  the  jury  to  find  a  verdict  for 
the  plaintiff,  reserving  the  point  made  for  the  consideration  of  the 
court. 

Lens,  Serjt.,  in  support  of  his  rule. 

Shepherd,  Serjt.,  contra. 

Loud  Eldon,  C  J.  This  bill  of  parcels,  though  not  the  contract 
itself,  may  amount  to  a  note  or  memorandum  of  the  contract  within 
the  meaning  of  the  statute.  The  single  question  therefore  is,  Whether 
if  a  man  be  in  the  habit  of  printing  instead  of  writing  his  name  he  may 
not  be  said  to  sign  by  his  printed  name  as  well  as  his  written  name? 
At  all  events,  connecting  this  bill  of  parcels  with  the  subsequent  letter 
of  the  defendants,  I  think  the  case  is  clearly  taken  out  of  the  Statute 
of  Frauds.  For  although  it  be  admitted  that  the  letter  which  does  not 
state  the  terms  of  the  agreement  would  not  alone  have  been  sufficient, 
yet  as  the  jury  have  connected  it  with  something  which  does,  and  the 
letter  is  signed  by  the  defendants,  there  is  theu  a  written  note  or 
memorandum  of  the  order  which  was  originally  given  by  the  plaintiff 
signed  by  the  defendants.  It  has  been  decided  that,  if  a  man  draw  up 
an  agreement  in  his  own  handwriting,  beginning,  "I  A.  B.  agree," 
&c,  and  leave  a  place  for  a  signature  at  the  bottom,  but  never  sign  it, 
it  may  be  considered  as  a  note  or  memorandum  in  writing  within  the 
statute.  And  yet  it  is  impossible  not  to  see  that  the  insertion  of  the 
name  at  the  beginning  was  not  intended  to  be  a  signature,  and  that 
the  paper  was  meant  to  be  incomplete  until  it  was  further  signed. 
This  last  case  is  stronger  than  the  one  now  before  us,  and  affords  an 
answer  to  the  argument  that  this  bill  of  parcels  was  not  delivered  as  a 
note  or  memorandum  of  the  contract. 

Per  Curiam,  Rule  discharged. 


870  EGERTON  V.    MATHEWS.  [CHAP.  VL 


EGERTON  v.  MATHEWS  and  Another. 
In   the   King's   Bench,    February   12,   1805. 

[Reported  in  6  East,  307.] 

This  was  an  action  on  the  case  against  the  defendants  for  not  accept- 
ing and  paying  for  certain  goods  which  they  had  contracted  to  purchase 
by  the  following  memorandum  in  writing:  "We  agree  to  give  Mr. 
Egerton  I9d.  per  lb.  for  30  bales  of  Smyrna  cotton,  customary  allow- 
ance, cash  3  per  cent.,  as  soon  as  our  certificate  is  complete."  Signed, 
Mathews  and  Turnbull,  and  dated  2d  Sept.,  1803.  The  defendants 
had  before  become  bankrupts,  and  their  certificate  was  then  waiting  for 
the  Lord  Chancellor's  allowance,  and  after  it  was  allowed  they  signed 
the  memorandum  again.  On  the  opening  of  the  case  at  the  trial  after 
last  term  at  Guildhall  it  was  objected,  on  the  authority  of  Wain  v. 
Warlters,  5  East,  10,  that,  the  contract  being  altogether  executory, 
and  no  consideration  appearing  on  the  face  of  the  writing  for  the  prom- 
ise, nor  any  mutuality  in  the  engagement,  it  was  void  by  the  Statute  of 
Frauds,  29  Car.  2,  c.  3.  And  it  not  being  at  that  time  adverted  to 
that  the  case  cited  turned  upon  the  meaning  of  the  word  ''agreement" 
(i.  e.,  to  pay  the  debt  of  another)  in  the  4th  clause  of  the  statute,  and 
that  this  case  was  governed  altogether  by  the  17th  clause,  the  object 
and  wording  of  which  is  different,  and  wmich  has  not  the  word  "agree- 
ment," the  plaintiff  was  nonsuited.  But  on  a  motion  for  setting  aside 
the  nonsuit,  when  the  attention  of  the  court  was  called  to  the  difference 
of  the  two  clauses,  Lord  Ellenborough,  C.  J.,  on  granting  a  rule  nisi 
expressed  his  assent  to  the  distinction  between  the  two  cases,  and  said 
that  the  nonsuit  had  proceeded  upon  a  mistake  at  the  trial  in  supposing 
that  they  were  the  same.     And  on  this  day  wThen 

The  Solicitor- General  and  Marry  at  were  to  have  shown  cause 
against  the  rule  (after  suggesting  that  the  words  "  contract"  and  li  bar- 
gain" in  the  17th  section  implied  mutuality  and  consideration  as  much 
as  the  word  "  agreement"  in  the  4th  clause,  and  therefore  brought  the 
case  within  the  principle  of  the  former  decision),  finding  that  the  whole 
court  were  decidedly  of  opinion  that  the  action  was  sustainable  upon 
the  17th  section  of  the  statute,  they  relinquished  any  further  opposition 
to  the  rule  ;  and 

Lord  Ellenborough,  C.  J.,  observed  that  the  words  of  the  statute 
woe  satisfied  if  there  were  "some  note  or  memorandum  in  writing  of 
the  bargain,  signed  by  the  parties  to  be  charged  by  such  contract." 
And  this  was  a  memorandum  of  the  bargain,  or  at  least  of  so  much  of 
it  as  was  sufficient  to  bind  the  parties  to  be  charged  therewith,  aud 
whose  signatures  to  it  is  all  that  the  statute  requires. 

Lawrence,  J.  The  case  of  Wain  v.  Warlters  proceeded  on  this, 
thai  in  order  to  charge  one  man  with  the  debt  of  another  the  agreement 


SECT.  VII.]  CHAMPION    V.    PLUMMER.  871 

must  be  in  writing;  which  word  "agreement"  we  considered  as  prop- 
erly including  the  consideration  moving  to,  as  well  as  the  promise  by, 
the  party  to  be  so  charged  ;  and  that  the  statute  meant  to  require  that 
the  whole  agreement,  including  both,  should  be  in  writing. 

The  other  judges  concurring.  Mule  absolute. 


CHAMPION  and  Another  v.  PLUMMER. 

In  the  Common  Pleas,  May  13,  1805. 

[Reported  in  1  New  Reports,  252.] 

This  was  an  action  against  the  defendant  for  not  delivering  to  the 
plaintiffs  20  puncheons  of  treacle  bought  of  him  by  the  plaintiffs  at  37s. 
percwt.,to  be  delivered  on  the  10th  of  December ;  20  puncheons  at 
36s.  6d.  per  ewt.,  to  be  delivered  on  the  31st  of  October;  and  10  pun- 
cheons at  37s.  per  cwt.,  to  be  delivered  on  the  1st  of  November. 

At  the  trial  before  Sir  James  Mansfield,  C.  J.,  at  the  Guildhall  sit- 
tings after  last  Hilary  Term,  it  was  proved  that  a  bargain  for  the  treacle 
in  question  was  made  between  the  plaintiffs'  clerk  and  the  defendant, 
as  stated  in  the  declaration,  and  that  the  following  note  was  made  by 
the  plaintiffs'  clerk  in  a  common  memorandum  book  and  signed  by  the 
defendant  as  under  :  — 

Left  leaf  of  the  book.  Right  leaf  of  the  book. 

Bought  of  W.  Plummer  10  puncheons  (a  37. 

20  puncheons  of  treacle 
37/0. 
to  be  delivered  by  10  Dec. 
(Signed)     Wm.  Plummer. 
20  puncheons  treacle  36/6. 
say  37/0. 
l^Nov. 
31  Oct.  Wm.  Plummer. 

On  the  part  of  the  defendant  it  was  objected  that  this  did  not  amount 
to  a  sufficient  note  or  memorandum  of  the  contract  within  the  Statute 
of  Frauds,  29  Car.  2,  c.  3,  §  17,  as  it  was  not  signed  by  the  purchaser ; 
and  his  Lordship  being  of  this  opinion  nonsuited  the  plaintiff. 

A  rule  having  been  obtained  calling  on  the  defendant  to  show  cause 
why  the  nonsuit  should  not  be  set  aside  and  a  new  trial  had, 

Shepherd,  Serjt.,  showed  cause. 

Best,  Serjt.,  contra. 

Sir  James  Mansfield,  C  J.  How  can  that  be  said  to  be  a  contract, 
or  memorandum  of  a  contract,  which  does  not  state  who  are  the  con- 
tracting parties?  By  this  note  it  does  not  at  all  appear  to  whom  the 
goods  were  sold.     It  would  prove  a  sale  to  any  other  person  as  well  as 


872  CUFF  V.   PENN.  [CHAP.  VL 

to  the  plaintiffs :  there  cannot  be  a  contract  without  two  parties,  and  it 
is  customary  iu  the  course  of  business  to  state  the  name  of  the  purchaser 
as  well  us  of  the  seller  iu  every  bill  of  parcels.     This  note  does  not 
appear  to  me  to  amount  to  any  memorandum  in  writing  of  a  bargain. 
The  rest  of  the  court  concurring,  Hale  discharged. 


WRIGHT  v.  DANNAH. 
At  Guildhall,  coram  Lord  Ellenborough,  July  4,  1809. 

[Reported  in  2  Campbell,  203.] 

Goods  bargained  and  sold.  Plea,  the  general  issue. 
The  action  was  brought  for  the  value  of  four  sacks  of  clover-seed. 
The  parties,  having  met  on  the  Corn  Exchange  in  London,  entered 
into  a  negotiation  for  the  sale  of  this  seed ;  and  after  they  had  agreed 
on  the  price,  the  plaintiff  wrote  the  following  memorandum  of  the 
contract :  — 

Robert  Dannah,  Windley,  near  Derby. 

4  sacks  clover-seed,  at  £6  18s. 

Per  Fly  Boat. 

After  the  plaintiff  had  written  this  memorandum,  the  defendant,  who 
overlooked  him  while  he  wrote  it,  desired  him  to  alter  the  figures  18  to 
16,  —  £6  16s.  being  the  price  agreed  on.  This  the  plaintiff  accord- 
ingly did.  They  then  parted,  the  memorandum  being  left  with  the 
defendant. 

Park  objected  that  this  was  not  a  sufficient  memorandum  within  the 
Statute  of  Frauds,  not  being  signed  by  the  party  to  be  charged  by  it  or 
his  authorized  agent. 

Garrow  and  Puller,  contra. 

Lord  Ellenborough  said  the  agent  must  be  some  third  person,  and 
could  not  be  the  other  contracting  party.  Plaintiff  nonsuited. 


CUFF  and   Others  v.    PENN. 
In  the  King's  Bench,  January  25,  1813. 

[Reported  in  1  Maulefr  Selwyn,  21.] 

In  an  action  of  assumpsit  for  not  accepting  a  quantity  of  bacon,  the 
case  was  this:  The  plaintiffs  having  offered  to  sell  the  defendant  300 
hogs  of  bacon,  the  defendant,  on  the  10th  of  April,  1807,  wrote  to  the 
plaintiffs  the  following  letter:  — 


SECT. 


VII.]  CUFF   V.   PENN.  873 


Messrs.  Cuff,  Dickinson,  &  Cuff, 

I  agree  to  accept  your  offer  of  300  hogs  of  bacon,  to  be  delivered  at 
such  times  and  in  such  quantities  as  mentioned  beneath,  at  69s.  per 
cwt,  each  parcel  to  be  paid  for  at  two  months  alter  delivery,  viz. :  — 

April  20th 25  hogs. 

May  10th 25  „ 

,,     20th 25  „ 

June  10th 50  ,, 

„     24th 50  „ 

July   14th 50  „ 

,,     24th 50  ,, 

Aug.  10th 25  ,, 

300 

J.  Pekn. 

On  the  21st  of  April  (and  not  on  the  20th  as  stipulated  in  the  con- 
tract) the  first  delivery  was  made  ;  but  it  appeared  that  the  defendant 
did  not  make  any  objection  on  that  ground.  After  the  third  delivery, 
viz.,  on  the  5th  of  June,  the  defendant  wrote  to  the  plaintiffs  informing 
them  that  he  should  want  the  next  delivery  of  bacon  as  soon  as  it  could 
be  got  ready.  On  the  10th  of  June  the  defendant  attended  at  the 
plaintiffs'  warehouse,  and  84  sides  were  then  weighed  in  his  presence  ; 
and  on  the  2d  of  July  he  again  called  on  the  plaintiffs  and  told  them 
as  the  sale  of  bacon  was  very  dull  he  hoped  that  the}'  would  not  press 
it  on  him,  and  they  assured  him  they  would  not :  84  sides  were  weighed 
at  this  time,  and  a  further  quantity  was  weighed  on  the  10th  of  July. 
The  plaintiffs,  having  forborne  to  deliver  any  more  bacon  for  some  time, 
at  length  informed  the  defendant  that  he  had  exceeded  a  reasonable 
time,  and  requested  him  to  name  a  time  for  delivery.  This  the  defend- 
ant declined,  observing  that  the  sales  were  very  dull.  Similar  applica- 
tions having  been  afterwards  made  to  the  defendant  without  effect,  the 
plaintiffs  on  the  28th  September  wrote  to  the  defendant  informing  him 
"  that  on  the  30th  instant  the  remainder  of  the  bacon  would  be  weighed 
at  their  warehouse,  and  that  he  might  see  it  weighed  if  he  thought 
proper  ;  if  not,  they  should  weigh  it  off  and  deliver  it  to  him  in  the 
course  of  that  day."  After  the  receipt  of  this  letter  the  defendant 
called  on  the  plaintiffs,  and  said  there  was  no  contract ;  to  which  they 
answered  tiiat  they  had  his  handwriting,  and  should  insist  on  the  con- 
tract ;  the  defendant  replied  there  was  no  use  in  sending  the  bacon,  as 
he  would  not  take  it.  On  the  30th  of  September  the  remainder  of  the 
bacon  was  weighed  and  sent  to  the  defendant's  house,  but  he  refused 
to  receive  it.  In  the  first  count  of  the  declaration  the  contract  was 
stated  according  to  the  terms  of  the  defendant's  letter  of  the  LOth  of 
April;  and  the  declaration  then  averred  that  the  plaintiffs  delivered  a 
part  of  the  bacon,  which  was  accepted  and  paid  for  by  the  defendant 


874  CUFF   V.    PENN.  [CHAP.  VL 

under  the  contract ;  and  that  the  plaintiffs  offered  to  deliver  the  residue, 
but  the  defendant  would  not  accept  the  same.  In  the  second  count, 
after  setting  forth  the  contract  of  the  10th  of  April,  it  was  averred,  that 
the  plaintiffs  had  delivered  a  certain  quantity  of  bacon,  which  was 
accepted  by  the  defendant ;  and  that  the  plaintiffs  intended  and  were 
about  to  deliver  the  residue  under  the  contract,  but  the  defendant  on 
the  2d  of  July,  1807,  discharged  the  plaintiffs  from  such  delivery,  and 
requested  them  not  to  deliver  any  more  bacon  until  further  orders  from 
the  defendant,  which  the  plaintiffs  agreed  to  do;  and  thereupon  in  con- 
sideration of  the  premises,  and  also  in  consideration  that  the  plaintiffs 
had  agreed  to  deliver  the  residue  of  the  bacon  according  to  such  orders 
within  a  reasonable  time,  the  defendant  promised  to  give  such  orders 
and  accept  the  residue  of  the  bacon  within  a  reasonable  time,  and  to 
pay  for  the  same  according  to  the  terms  of  the  original  contract ;  that 
on  the  30th  of  September,  1807,  the  plaintiffs  offered  to  deliver  the 
residue,  which  the  defendant  refused  to  accept.  The  third  count  was 
similar  to  the  second,  except  that  it  stated  that  the  defendant  requested 
the  plaintiffs  to  postpone  the  delivery  of  the  residue  of  the  bacon  for  a 
reasonable  time. 

At  the  trial  before  Lord  Ellenborough,  C.  J.,  at  the  London  sittings 
after  last  Trinity  term,  it  was  objected  on  the  part  of  the  defendant 
that  this  was  a  written  contract  for  the  sale  and  purchase  of  goods,  and 
could  not  be  varied  by  parol ;  but  if  the  subsequent  parol  agreement 
was  to  be  considered  not  as  varying  the  written  contract,  but  as  sub- 
stituting a  new  one  in  its  place,  then  it  was  void  by  the  Statute  of 
Frauds,  there  being  neither  a  part  acceptance  nor  a  part  payment  under 
it.  But  his  Lordship  was  of  opinion  that  this  was  a  dispensation  only 
with  the  performance  of  the  original  contract  in  respect  of  the  delivery 
of  the  bacon  at  the  stipulated  times,  and  directed  the  jury  to  find  a  ver- 
dict for  plaintiffs,  with  liberty  to  the  defendant  to  move  to  enter  a 
nonsuit :  a  verdict  was  accordingly  given  for  the  plaintiffs  upon  the 
second  and  third  counts  ;  and  Marryat  in  the  last  term  obtained  a  rule 
nisi  for  entering  a  nonsuit. 

The  /Solicitor-  General,  Park,  and  Zaices,  now  showed  cause. 
Marryat  and  Gurney,  contra. 

Lord  Ellenborough,  C.  J.  I  think  this  case  has  been  argued  very 
much  on  a  misunderstanding  of  the  Statute  of  Frauds,  and  the  ques- 
tion lias  been  embarrassed  by  confounding  two  subjects  quite  distinct 
in  their  nature;  namely,  the  provisions  of  that  statute  and  the  rule  of 
law  whereby  a  party  is  precluded  from  giving  parol  evidence  to  vary  a 
written  eon  tract.  The  principal  design  of  the  Statute  of  Frauds  was 
that  parties  should  not  have  imposed  on  them  burdensome  contracts 
which  they  never  made,  and  be  fixed  with  goods  which  they  never 
contemplated  to  purchase,  lint  by  the  express  provisions  of  that  stat- 
ute it  is  only  necessary,  in  order  to  make  a  contract  for  a  sale  of  goods 
binding  upon  the  parties,  that  there  should  be  either  a  note  or  a  memo- 
randum of  the  bargain  in  writing;  or  if  there  be  no  writing,  that  there 


SECT.  VII.]  SCHNEIDER   V.    NORRIS.  875 

should  be  a  part  payment  by  way  of  earnest,  or  a  part  acceptance  of 
the  goods.  In  the  present  case  there  exist  two  indicia  pointed  out  by 
the  statute,  viz.,  a  contract  for  sale  in  writing  and  a  part  performance, 
so  that  not  only  the  literal  intention  but  the  spirit  also  of  the  statute 
is  satisfied.  The  objection  then  does  not  found  itself  upon  a  non- 
compliance with  the  provisions  of  that  statute,  but  is  more  properly 
this  :  that  an  agreement  once  made  in  writing  cannot  be  varied  by 
parol.  If  this  agreement  had  been  varied  by  parol,  I  should  have 
thought,  on  the  authority  of  Meres  v.  Ansell,  3  Wils.  27;'),  that  there 
would  have  been  strong  ground  for  the  objection.  But  here  what  has 
been  done  is  only  in  performance  of  the  original  contract.  It  is  ad- 
mitted that  there  was  an  agreed  substitution  of  other  days  than  those 
originally  specified  for  its  performance :  still  the  contract  remains. 
Suppose  a  delivery  of  live  hogs  instead  of  the  bacon  had  been  substi- 
tuted and  accepted,  might  not  that  have  been  given  in  evidence  as 
accord  and  satisfaction?  So  here  the  parties  have  chosen  to  take  a 
substituted  performance.  It  is  clear  that  neither  of  them  in  the  outset 
thought  it  necessary  to  stand  on  the  letter  of  the  agreement ;  for  the 
first  delivery  was  to  have  taken  place  on  the  20th  of  April,  and  was 
not  made  until  the  21st,  and  yet  no  objection  was  then  taken.  After- 
wards a  new  mode  of  delivery  is  substituted  at  the  defendant's  express 
request.  1  am  of*  opinion  therefore  that  neither  has  the  Statute  of 
Frauds  been  trenched  upon,  nor  has  any  rule  of  law  respecting  parol 
evidence  not  being  admissible  to  vary  a  written  agreement  been  violated 
in  this  instance. 

Pek  Curiam,  Rule  discharged. 


SCHNEIDER   and   Another   v.   NORRIS. 
In  the  King's  Bench,  January  25,  1814. 

[Reported  in  2  Maule  Sp  Selwijn,  286.] 

Case  for  the  non-delivery  of  cotton  yarn  pursuant  to  agreement. 
Plea,  general  issue. 

At  the  trial  before  Lord  Ellenborough,  C.  J.,  at  the  last  London 
sittings,  it  appeared  that  the  plaintiffs  on  the  24th  of  October,  1812, 
purchased  of  the  defendant,  who  was  employed  to  sell  on  commission, 
a  quantity  of  cotton  yarn,  of  which  a  bill  of  parcels  was  sent  by  the 
defendant  to  the  plaintiffs,  not  however  at  the  time  of  the  contract,  and 
at  what  precise  time  did  not  appear.  The  bill  of  parcels  was  headed 
thus  :  "  London,  24th  October,  1812.  Messrs.  John  Schneider  &  Co. 
bought  of  Thomas  Norris  &  Co.,  agents.  Cotton  yarn  and  piece  goods. 
No.  3,  Freeman's  Court,  Cornhill,"  —  the  whole  of  which  was  printed, 
except  the  words  "Messrs.  John  Schneider  &  Co."  which  were  in  the 
handwriting  of  the  defendant.  Then  followed  a  list  of  the  articles 
sold,  with  the  particulars  and  quantity,  and  the  prices  annexed.  On 
the  23d  December  the  plaintiffs  demanded  the  yarn  from  the  defendant. 


876  SCHNEIDER   V.    NORMS.  [CHAP.  VI. 

who  refused  to  deliver  it,  alleging  that  his  principal  had  declined  per- 
forming the  contract.  It  was  objected  upon  this  evidence  that  there 
was  not  any  note  or  memorandum  in  writing  of  the  bargain  as  required 
by  the  Statute  of  Frauds  ;  in  answer  to  which  the  case  of  Saunderson 
v.  Jackson,  2  B.  &  P.  238  (see  1  N.  R.  254,  per  Shepherd,  Serjt., 
arguendo),  was  relied  on.  His  Lordship  overruled  the  objection,  and 
thereupon  the  plaintiffs  obtained  a  verdict. 

Lord  Ellenbokough,  C.  J.  I  cannot  but  think  that  a  construction 
which  went  the  length  of  holding  that  in  no  case  a  printing  or  any 
other  form  of  signature  could  be  substituted  in  lieu  of  writing  would 
be  o-oing  a  great  way,  considering  how  many  instances  may  occur  in 
which  the  parties  contracting  are  unable  to  sign.  If  indeed  this  case 
had  rested  merely  on  the  printed  name,  unrecognized  by  and  not 
brought  home  to  the  party  as  having  been  printed  by  him  or  by  his 
authority,  so  that  the  printed  name  had  been  unappropriated  to  the 
particular  contract,  it  might  have  afforded  some  doubt  whether  it  would 
not  be  intrenching  upon  the  statute  to  have  admitted  it.  But  here 
there  is  a  signing  by  the  party  to  be  charged  by  words  recognizing  the 
printed  name  as  much  as  if  he  had  subscribed  his  mark  to  it,  which  is 
strictly  the  meaning  of  signing,  and  by  that  the  party  has  incorporated 
and  avowed  the  thing  printed  to  be  his  ;  and  it  is  the  same  in  substance 
as  if  he  had  written  Norris  &  Co.,  with  his  own  hand.  He  has  by  his 
handwriting  in  effect  said,  I  acknowledge  what  I  have  written  to  be  for 
the  purpose  of  exhibiting  my  recognition  of  the  within  contract.  I 
entertained  the  same  opinion  at  the  trial,  and  cannot  say  that  it  has 
been  changed  by  the  argument.  It  appears  to  me  therefore  that  the 
printed  name  thus  recognized  is  a  signature  sufficient  to  take  this  case 
out  of  the  statute. 

Le  Blanc,  J.  Suppose  the  defendant  had  stamped  the  bill  of  par- 
cels with  his  own  name,  would  not  that  have  been  sufficient?  Such  a 
stamping  as  it  seems  to  me,  if  required  to  be  done  by  the  party  himself 
or  by  his  authority,  would  afford  the  same  protection  as  signing. 

Bayley,  J.  This  case  is  entirely  out  of  the  mischief  of  the  statute, 
the  object  of  which  was  to  protect  parties  from  being  bound  by  con- 
tracts unless  it  could  be  seen  that  the  terms  on  which  they  contracted 
were  under  their  signature.  Here  the  terms  of  this  contract  are  recog- 
nized by  the  defendant,  who  is  the  party  to  be  charged,  by  his  signing 
the  name  of  Schneider  &  Co.,  which  is  a  sufficient  signing  by  him  to 
recognize  that  they  had  bought  and  he  had  sold. 

Dampier,  J.  In  Saunderson  v.  Jackson  it  did  not  appear  that  there 
was  any  signature  to  the  bill  of  parcels  :  it  was  only  by  connecting  the 
letter  with  the  bill  of  parcels  that  the  case  was  taken  out  of  the  stat- 
ute. Here  there  is  the  handwriting  of  the  party  to  be  charged  to  the 
bill  of  parcels,  which  authenticates  it  as  a  memorandum  of  the  bargain. 
The  defendant  has  ratified  the  sale  to  Schneider  &  Co.  by  inserting 
their  name  as  buyer  to  a  paper  in  which  he  recognizes  himself  as  seller. 
That  is  sullicient  to  satisfy  the  object  of  the  statute. 

llule  refused. 


SECT.  VII.]  KEN  WORTHY   V.    SCIIOFIELD.  877 

KENWORTIIY  v.   SCHOFIELD. 
In  the  King's  Bench,  Easter  Term,  1824. 

[Reported  in  2  Barnewall  $•  Cresswell,  04.").] 

Special  assumpsit  against  the  defendant  for  not  taking  away  a 
carding  engine  purchased  by  him  at  an  auction  agreeable  to  the  con- 
ditions of  sale  (which  were  set  out),  in  consequence  whereof  it  was 
re-sold  at  a  loss.  Plea,  non  assumpsit.  At  the  trial  before  Ilolroyd, 
J.,  at  the  Lancaster  summer  assizes,  1823,  it  appeared  that  the  engine 
in  question  was  put  up  to  sale  by  auction  among  a  variety  of  other 
things  :  the  sale  was  subject  to  certain  conditions,  which  were  read  by 
the  auctioneer  before  the  biddings  commenced,  but  the}'  were  not 
attached  to  the  catalogue  or  referred  to  by  it.  One  Luke  Winter- 
bottom  as  agent  for  the  defendant  was  the  highest  bidder  for  the 
engine ;  and  it  was  knocked  down  to  him,  and  the  auctioneer  wrote  his 
name,  and  the  price,  £105,  against  that  article  in  the  catalogue.  For 
the  defendant  it,  was  objected,  first,  that  the  Statute  of  Frauds  was 
not  satisfied  by  writing  down  the  name  of  the  agent  of  the  purchaser; 
secondly,  that  the  conditions  of  sale  were  part  of  the  bargain,  and  not 
being  annexed  to  the  catalogue  the  signature  to  the  latter  did  not 
amount  to  a  signature  of  a  note  or  memorandum  of  the  bargain  within 
the  meaning  of  the  17th  section  of  29  Car.  2,  c.  3.  The  learned 
judge  overruled  the  first  objection,  but  reserved  the  second  point ;  and 
the  plaintiff  having  obtained  a  verdict,  Cross,  Serjt.,  in  Michaelmas 
term  obtained  a  rule  nisi  for  a  nonsuit  or  a  new  trial,  against 
which 

J.  Williams,  now  showed  cause. 

Cross,  Serjt.  (with  whom  was  Starkie),  contra. 

Bavley,  J.  It  has  been  decided  by  man}-  cases  that  in  sales  of  land 
b}-  auction  the  auctioneer  is  agent  for  both  the  vendor  and  vendee, 
and  that  such  auctions  are  within  the  Statute  of  Frauds.  Walker  v. 
Constable,  1  B.  &  P.  306  ;  Emmerson  v.  Heelis,  2  Taunt.  38  ;  AVhite  v. 
Proctor,  4  Taunt.  209  ;  Kemeys  v.  Proctor,  3  V.  &  B.  57.  Now  the 
language  of  the  1 7th  section  of  the  Statute  of  Frauds  relating  to  sales 
of  goods  is  in  substance  the  same  as  that  of  the  4th  section  relating  to 
sales  of  land  ;  the  only  difference  being  that  the  latter  speaks  of  an 
agreement,  the  former  of  a  bargain.  The  word  "  bargain"  means  the 
terms  upon  which  parties  contract,  and  it  appears  by  Saunderson  v. 
Jackson,  2  B.  &  P.  238,  that  in  order  to  satisfy  the  statute  the  sig- 
nature must  be  either  to  some  written  document  containing  in  itself 
the  terms  of  the  bargain  or  connected  with  some  other  document 
which  does.  Then  comes  Hinde  v.  Whitehouse  in  which  Lord  Ellen- 
borough  after  time  taken  for  consideration  delivered  it  as  his  opinion 
that  an  auctioneer  had  not  satisfied  the  requisitions  of  the  statute  by 


878  GRANT   V.   FLETCHER.  [(JHAP.  VI. 

signing  the  name  of  the  purchaser  to  the  catalogue,  that  not  being 
connected  with  or  referring  to  the  conditions  of  sale.  In  the  present 
case  nothing  was  said  at  the  time  when  the  engine  was  put  up  as  to 
the  terms  upon  which  the  sale  was  to  proceed.  The  very  mischief 
contemplated  by  the  statute  might  occur  in  such  a  case  as  this.  There 
is  abundant  room  for  fraud  and  perjury  respecting  the  conditions  of 
sale.  Inasmuch  therefore  as  there  was  not  any  memorandum  of  the 
terms  of  the  bargain  signed  by  the  parties,  I  think  that  the  case  is 
within  the  29  Car.  2,  c.  3,  §  17,  and  that  a  nonsuit  must  be  entered. 

Holroyd,  J.  Upon  the  trial  of  this  case  two  objections  were  made. 
First,  that  the  defendant's  name  was  not  put  down  by  the  auctioneer. 
I  thought  there  was  no  weight  in  that,  and  still  continue  of  the 
same  opinion.  The  other  objection  was  reserved,  and  upon  the  author- 
ity of  1 1  hide  v.  Whitehouse  I  both  think  that  auctions  of  goods  are 
within  the  Statute  of  Frauds,  and  that  there  has  not  been  a  signature 
to  a  memorandum  of  the  bargain  sufficient  to  satisfy  the  17th  section 
of  that  act.  It  appears  to  me  that  you  cannot  call  that  a  memorandum 
of  a  bargain  which  does  not  contain  the  terms  of  it.  The  argument 
for  the  plaintiff  is,  that  the  conditions  being  in  the  room  were  virtually 
attached  to  the  catalogue.  But  I  think  that,  as  they  were  not  actually 
attached  or  clearly  referred  to,  they  formed  no  part  of  the  thing 
signed.  In  the  case  put  of  a  separation  of  the  conditions  from  the 
catalogue  during  the  progress  of  the  sale,  I  should  say  that  the  sig- 
natures to  the  latter  made  after  the  separation  were  unavailing.  It 
occurred  to  me  at  first  that  this  might  be  likened  to  the  case  of  a  will 
consisting  of  several  detached  sheets,  when  a  signature  of  the  last,  the 
whole  being  on  the  table  at  the  time,  would  be  considered  a  signing  of 
the  whole  ;  but  there  the  sheet  signed  is  a  part  of  the  whole.  Here 
the  catalogue  was  altogether  independent  of  the  conditions.  I  agree 
therefore  that  this  rule  for  a  nonsuit  must  be  made  absolute. 

Hide  absolute. 

Littledale,  J.,  was  absent. 


GRANT   and   Others  v.   FLETCHER   and   Another. 
In  the  King's  Bench,  April  15,  182G. 

[Reported  in  5  Barnewall  $•  Cresswell,  436.] 

Assumpsit  for  not  accepting  400  bags  of  Egyptian  cotton  pursuant 
to  contract.  Plea,  general  issue.  At  the  trial  before  Hullock.  B.,  at 
the  last  spring  assizes  for  the  county  of  Lancaster,  the  following 
appeared  to  be  the  facts  of  the  case.  The  plaintiffs  having  received 
advices  that  000  bags  of  cotton  were  shipped  for  them  at  Alexandria 
by  the  ship  Robert,  of  which  one  Wake  was  master,  directed  then- 
broker  Withington  to  sell  400  bags  at  17$d.  per  pound.     Withington 


SECT.  VI.]  GOOM   V.   AFLALO.  879 

accordingly  entered  into  a  verbal  contract  with  the  defendants,  and 
made  the  following  entry  of  it  in  his  memorandum  hook  :  kw  Sold  Peter 
Fletcher  &  Son  400  Egyptians,  to  arrive  per  Robert,  Wake,  at  17£<?.per 
pound."  And  he  delivered  to  the  defendants  the  following  note  of  the 
contract :  "  Robert,  Wake,  400  hags  of  Egyptian  cotton  at  1  l%d.,  shipped 
on  the  22d  of  February  for  William  Grant  &  Brothers.  Henry  Well- 
ington." On  the  same  day  he  delivered  to  the  plaintiffs  the  following 
note:  "400  certain  to  Messrs.  Fletcher  &  Son,  at  17£c?.,  ten  days  and 
three  months  from  the  delivery,  you  allowing  me  my  commission. 
H.  W."  It  was  objected  that  as  the  notes  delivered  to  the  contracting 
parties  were  different  neither  was  bound  ;  and  Gumming  v.  Roebuck, 
Holt's  N.  P.  C.  172,  was  cited.  The  learned  judge  was  of  opinion  that 
there  was  no  valid  contract  binding  both  parties,  and  the  plaintiff  was 
nonsuited. 

Cross,  Serjt.,  moved  for  a  new  trial. 

Abbott,  C.  J.  The  broker  is  the  agent  of  both  parties,  and  as 
such  ma}r  bind  them  by  signing  the  same  contract  on  behalf  of  buyer 
and  seller.  But  if  he  does  not  sign  the  same  contract  for  both  parties, 
neither  will  be  bound.  It  has  been  decided  accordingly  that  where 
the  broker  delivers  a  different  note  of  the  contract  to  each  of  the  con- 
tracting parties  there  is  no  valid  contract.  The  entry  in  the  broker's 
book  is  properly  speaking  the  original,  and  ought  to  be  signed  by 
him.  The  bought  and  sold  notes  delivered  to  the  parties  ought  to  be 
copies  of  it.  A  valid  contract  may  probably  be  made  by  perfect  notes 
signed  by  the  broker  and  delivered  to  the  parties,  although  the  book 
be  not  signed  ;  but  if  the  notes  are  imperfect,  as  in  the  present  case, 
an  unsigned  entry  in  the  book  will  not  supply  the  defect.  It  is  the 
duty  of  brokers  to  make  the  contract  so  as  to  be  binding  on  both  par- 
ties. They  are  employed  to  prepare  contracts  on  which  great  sums  of 
money  depend  :  and  I  must  say  that  in  mam*  cases  which  have  come 
before  me  they  appear  to  conduct  their  business  in  a  very  slovenly, 
negligent  manner.  Rule  refused. 


GOOM   v.  AFLALO. 

In  the  King's  Bench,  November  28,  1826. 

[Reported  in  6  Barnewall  ,\-  CressweU,  117.] 

Assumpsit  brought  by  the  plaintiff  against  the  defendant  for  refusing 
to  deliver  a  quantity  of  Barbary  gum,  pursuant  to  a  contract  of  sale 
alleged  to  have  been  entered  into  with  the  plaintiff  by  a  Mr.  Virgo  as 
the  broker  of  the  plaintiff  and  defendant.  Plea,  the  general  issue. 
At  the  trial  before  Abbott,  C.  J.,  at  the  London  sittings  after  last  Hilary 
term,  a  verdict  was  found  for  the  plaintiff.  Afterwards,  upon  a  motion 
for  a  new  trial,  the  court  directed  that  the  facts  should  be  stated  for 
their  opinion  in  the  following  case  :  — 


880  GOCM   V.    AFLALO.  [CHAP.  YL 

Mr.  Virgo,  as  the  broker  of  the  defendant  and  with  his  authority, 
agreed  with  the  plaintiff  that  the  defendant  should  sell  and  deliver  to 
him  170  serous  of  Barbarv  gam  at  the  price  of  55s.  per  cwt.  The 
broker  thereupon  wrote  in  his  broker's  book  the  terms  of  the  contract, 
as  follows  :  — 

London,  23d  February,  1825. 

Sold  for  account  of  Mr.  Aflalo,  to  Mr.  S.  T.  Goom,  170  serons  of 
Barbarv  gum,  subject  to  approval  of  quality  to-morrow,  per  the  Moga- 
dore,  lying  iu  the  London  Docks,  at  55s.  per  cwt.  in  bond;  customary 
allowance  for  tare  and  draft ;  2^  per  cent,  discount  for  cash  in  fourteen 
day*,  or  four  months'  credit.  The  gum  remaining  in  the  sellers  name 
at  the  docks. 

This  entry  in  the  broker's  book  was  not  signed  by  the  broker  or  any 
other  person.  Between  nine  and  ten  o'clock  at  night  of  the  said  23d 
February  the  broker  sent  to  the  plaintiff  and  defendant  respectively 
paper  writings,  commonly  called  bought  and  sold  notes,  copied  from 
the  entry  in  his  book  and  signed  by  him. 

Between  nine  and  ten  o'clock  in  the  morning  of  the  24th  February 
the  defendant  objected  to  and  returned  the  sold  note  to  the  broker, 
and  wholly  refused  to  deliver  the  gum.  Whereupon  this  action  was 
brought 

Laic,  for  the  plaintiff. 

Chitty,  contra.  Cur.  adv.  vult. 

The  judgment  of  the  court  was  now  delivered  by 

Abbott,  C.  J.  It  appears  in  this  case  that  Virgo  the  broker  was 
authorized  by  the  defendant  to  sell  the  goods  in  question,  that  he  con- 
tracted for  the  sale  of  them  to  the  plaintiff,  entered  a  memorandum  of 
the  bargain  in  his  broker's  book  but  did  not  sign  that  entry,  and  then 
sent  to  each  of  the  parties  a  copy  of  the  memorandum  signed  by  him- 
self. The  only  objection  to  the  validity  of  the  contract  is  the  want  of 
his  signature  to  the  memorandum  in  the  book. 

It  is  clear  that  the  contract  was  made  in  such  a  manner  as  to  bind 
the  defendant  within  the  requisites  of  the  Statute  of  Frauds.  If 
therefore  it  is  to  be  held  invalid,  this  can  only  be  done  on  the  ground 
of  some  usage  or  custom  of  merchants  which  the  court  is  at  liberty  to 
recognize  as  a  part  of  the  common  law.  No  such  usage  has  been  found 
or  stated  as  a  fact  upon  the  present  occasion.  There  are  several  cases 
in  the  books  in  which  this  point  has  been  noticed.  They  were  all 
quoted  in  the  argument  at  the  bar,  and  it  is  unnecessary  to  repeat 
them.  A  signed  entry  in  the  broker's  book,  and  signed  notes  conform- 
able  to  each  other  delivered  to  the  parties,  are  spoken  of  as  making  a 
valid  contract:  the  entry  in  the  book  has  been  called  the  original,  and 
tin-  ootee  <-opies ;  but  there  is  not  any  actual  decision  that  a  valid  con- 
fcracl  may  not  be  made  by  notes  duly  signed  if  the  entry  in  the  book  be 
unsigned  ;  and  in  one  case  the  late  Lord  Chief  Justice  Gibbs  is  reported 


SECT.  VIT.]  MACLEAN    V.    DUNN.  881 

to  have  spoken  of  some  supposed  decision  to  that  effect  as  having  been 
overruled.     Under  such  circumstances  we  cannot  say  that  the  rule  for 

which  the  defendant  contends  has  been  adopted  by  the  court  as  part 
of  the  law  merchant.  Strong  expressions  as  to  the  duty  of  the  broker 
to  sign  his  book  do  not  go  far  enough  for  this  purpose,  nor  does  the 
obligation  to  do  this  which  a  broker  is  supposed  to  enter  into  upon 
receiving  a  license  to  practise  in  the  city  of  London.  Brokers  are,  I 
believe,  established  in  the  principal  commercial  towns  on  the  continent 
under  municipal  regulations  calculated  to  obtain  punctuality  anil  fidel- 
ity in  their  dealings;  aud  the  signature  of  their  book  is  certainly  one 
method  of  insuring  these,  and  may  in  some  cases  furnish  evidence  and 
facilitate  the  proof  of  a  contract.  We  have  no  doubt  that  a  broker 
ought  to  sign  his  book,  and  that  every  punctual  broker  will  do  so.  But 
if  we  were  to  hold  such  a  signature  essential  to  the  validity  of  the  con- 
tract we  should  go  further  than  the  courts  have  hitherto  gone,  and 
might  possibly  lay  down  a  rule  that  would  be  followed  by  serious  incon- 
venience, because  we  should  make  the  validity  of  the  contract  to  depend 
upon  some  private  act  of  which  neither  of  the  parties  to  the  contract 
would  be  informed,  and  thereby  place  it  in  the  power  of  a  negligent  or 
fraudulent  man  to  render  the  engagement  of  parties  valid  or  invalid  at 
his  pleasure. 

For  these  reasons  we  think  the  plaintiff  is  entitled  to  retain  the 
verdict.  Postea  to  the  plaintiff. 


MACLEAN   v.  DUNN  and  TV  ATKINS,  who  survived  AUSTIN. 
Ix  the  Common  Pleas,  Mat  19,  1828. 

[Report<  (1  in  4  Bingham,  722.] 

Tins  was  a  special  action  of  assumpsit  for  not  accepting  and  paying 
for  a  quantity  of  Russian  and  German  wool.     At  the  trial  before  Best, 

C.  J.,  London  sittings  after  Michaelmas  term,  1826,  the  facts  of  the 
case,  as  far  as  they  are  material  to  the  questions  here  noticed,  were  as 
follows  :  — 

The  defendants  were  carrying  on  business  in  London  as  druggists 
and  dry-salters,  when  Ebsworth,  a  London  wool-broker,  met  Watkins 
at  Manchester,  near  which  place  Watkins  lived,  and  on  the  part  of  the 
plaintiff  agreed  to  sell  the  defendants  1G5  bags  of  Russian  and  German 
wool,  to  be  paid  for  partly  by  14."i  bags  of  Spanish  wool,  which  on  the 
part  of  the  defendants  he  agreed  to  sell  to  the  plaintiff,  and  partly  by 
acceptances  or  cash,  on  certain  terms  specified  in  the  following  bought 
and  sold  note  which  he  delivered  to  the  plaintiff's  clerk  :  — 

Manchester,  2Sth  March,  1825. 

D.  Maclean,  Esq. 

Sin. — We  have  sold  for  your  account  to  Messrs.  Dunn,  Austin, 
Watkins,  &  Co.,  1G6  bags  of  Russian  and  German  wool,  viz.  [here  fol- 

66 


882  MACLEAN    V.   DUNN.  [CHAT.  VI. 

lowed  a  specification  of  the  wools  as  in  the  note  made  out  for  the 
defendants,  amounting  to  165  bags  only,  the  insertion  of  16G  having 
been  admitted  on  the  trial  to  have  arisen  by  mistake  in  the  casting], 
after  deducting  the  amount  of  145  bags  of  Spanish  wool  sold  you,  the 
balance  to  be  paid  for  by  an  acceptance  at  four  months  with  2h  per 
cent,  discount,  or  in  cash  with  5  per  cent,  discount,  at  your  option. 
Commission  for  selling,  1  per  cent. 

EBS WORTH  &  BADHAM. 

Manchester,  28th  March,  1825. 
D.  Maclean,  Esq. 

Sir,  —  We  have  bought  for  your  account  of  Messrs.  Dunn,  Austin, 
Watkins,  &  Co.,  145  bags  of  Spanish  wool,  viz.  [here  followed  a  spe- 
cification of  145  bags  of  wool],  the  amount  of  145  bags  to  be  deducted 
from  the  165  bags  of  Russian  and  German  wool  bought  of  you  this 
day,  and  the  balance  to  be  paid  for  by  an  acceptance  at  four  months  at 
2£  per  cent,  discount,  or  in  cash  with  5  per  cent,  discount  on  the  1st 
July,  at  your  option.     Commission  for  purchasing,  h  per  cent. 

Ebsworth  &  Badham. 

This  bought  and  sold  note  was  written  on  one  sheet  of  paper. 

Corresponding  bought  and  sold  notes,  mutatis  mutandis,  were  made 
out  by  Ebsworth  for  the  defendants.  In  these  notes  the  1st  of  July 
was  specified  as  the  day  for  cash  with  discount,  at  the  end  of  the  sold 
note  as  well  as  at  the  end  of  tbe  bought  note.  They  were  never 
delivered  to  either  of  the  defendants.  Ebsworth  however  made  out  a 
memorandum  of  .the  contract  in  his  broker's  book,  called  a  contract 
book,  which  was  not  signed  by  him,  and  showed  this  memorandum  to 
Watkins  on  the  clay  it  was  entered,  March  28,  1825. 

Watkins  assented  to  the  contract  provided  Dunn's  consent  could  be 
obtained.  Ebsworth  had  had  no  previous  communication  with  Dunn, 
but  saw  him  about  the  beginning  of  the  next  month,  when  as  Ebsworth 
swore  at  the  trial,  Dunn  assented  to  the  bargain,  and  said  he  was  per- 
fectl}r  satisfied  with  what  was  done.  On  the  19th  of  that  month  Dunn 
told  Ebsworth  he  would  have  nothing  to  do  with  the  contract,  which 
Ebsworth  communicated  to  the  plaintiff. 

Plaintiff  nevertheless  in  May  addressed  the  defendants  collective^'  on 
the  subject  of  the  delivery  of  the  wool,  when  Watkins  wrote  and  referred 
him  to  Ebsworth,  who  afterwards,  with  the  assent  of  Watkins  and  in 
the  name  of  the  defendants  collectively,  sold  and  delivered  68  bags  of 
the  German  wool  to  Williamson  and  Jones. 

Jn  July  the  plaintiff  transmitted  the  invoice  of  the  165  bags  of  wool 
to  Manchester,  addressed  to  the  defendants,  and  requested  payment  of 
what  was  due  to  him. 

In  September  he  requested  them  to  receive  and  pay  for  the  remainder 
of  the  wools  undelivered,  and  gave  notice  that,  unless  the  account  be- 
tween him  and  the  defendants  were  liquidated  by  the  1st  of  November, 


SECT.  VII.]  MACLEAN    V.    DUNN.  883 

the  wool  remaining  undelivered  would  be  put  up  to  public  sale  on  that 
day,  and  the  defendants  held  responsible  for  any  loss. 

The  defendants  having  declined  to  receive  them  they  were  sold  at  a 
loss.     Whereupon  the  [(resent  action  was  commenced. 

It  was  objected  at  the  trial,  on  behalf  of  the  defendants,  that  there 
was  no  valid  contract  between  the  parties,  the  broker's  book  not  hav- 
ing been  signed,  and  the  bought  and  sold  notes  not  having  been  deliv- 
ered to  each  party;  that  Ebsworth,  having  no  authority  from  Dunn  at 
the  time  of  the  bargain,  was  not  an  agent  authorized  within  the  mean- 
ing of  the  Statute  of  Frauds ;  that  the  bought  and  sold  note  given  to 
the  plaintiff  varied  from  that  made  out  for  the  defendants,  the  latter 
specifying  the  1st  of  July  as  the  day  for  cash  with  discount  at  the  end 
of  the  sold  as  well  as  of  the  bought  note,  the  former  specifying  that  day 
only  at  the  end  of  the  bought  note  ;  and  that  the  plaintiff  had  rescinded 
the  contract  by  the  delivery  of  part  of  the  wool  to  Ebsworth,  and  the  sale 
of  the  remainder. 

A  verdict  was  taken  for  the  plaintiff,  with  leave  for  the  defendants  to 
move  the  court  upon  these  points. 

Taddy,  Serjt.,  accordingly  obtained  a  rule  nisi  to  enter  a  nonsuit  or 
have  a  new  trial  on  these  and  sundry  other  questions  of  law  and  fact. 

With  respect  to  the  alleged  variance  the  court  held  that,  as  the  plain- 
tiff's bought  and  sold  note  was  all  written  on  the  same  sheet  of  paper, 
the  1st  of  July  specified  at  the  end  of  the  bought  note  must  be  taken 
to  apply  equally  to  the  contract  in  the  sold  note,  and  that  therefore  the 
instrument  corresponded  sufficiently  with  the  bought  and  sold  note  made 
out  for  the  defendants. 

If  the  subsequent  ratification  by  Dunn  constituted  Ebsworth  by  re- 
lation an  agent  duly  authorized  within  the  meaning  of  the  Statute  of 
Frauds  at  the  time  of  the  contract,  a  bought  and  sold  note  having  been 
made  out  and  signed  by  him  on  the  part  of  the  defendants,  his  deliver- 
ing it  to  them  and  his  signing  the  contract  book  would  not  be  essential 
to  the  validity  of  the  contract. 

It  is  only  necessary  therefore  to  report  what  was  said  on  the  points, 
whether  a  person  who  makes  a  contract  for  another  without  due  au- 
thority becomes,  on  the  ratification  of  the  contract  by  the  party  to  be 
charged,  a  sufficient  agent  to  bind  him  within  the  meaning  of  the  Stat- 
ute of  Frauds  ;  and  whether  the  disposal  by  the  vendor  of  goods  sold, 
with  a  view  to  prevent  further  loss  upon  the  vendee's  refusing  to  receive 
them,  be  a  rescinding  of  the  contract. 

Wilde  and  Russell,  Serjts.,  for  the  plaintiff. 

Taddy  and  Spankie,  Serjts.,  contra. 

Best,  C.  J.  It  has  been  argued  that  the  subsequent  adoption  of  the 
contract  by  Dunn  will  not  take  this  case  out  of  the  operation  of  the 
Statute  of  Frauds  ;  and  it  has  been  insisted  that  the  agent  should 
have  his  authority  at  the  time  the  contract  is  entered  into.  If  such 
had  been  the  intention  of  the  Legislature,  it  would  have  been  expressed 
more  clearly  ;  but  the  statute  only  requires  some  note  or  memorandum 


884  MACLEAN    V.   DUNN.  [CHAP.  VI. 

in  writing  to  be  signed  by  the  party  to  be  charged  or  his  agent  there- 
unto lawfully  authorized,  leaving  us  to  the  rules  of  common  law  as  to 
the  mode  in  which  the  agent  is  to  receive  his  authority.  Now  in  all 
other  cases  a  subsequent  sanction  is  considered  the  same  thing  in  effect 
as  assent  at  the  time.  "  Omnis  ratihabitio  retrotrahitur  et  mandato 
aequiparatur  ;  "  and  in  my  opinion  the  subsequent  sanction  of  a  con- 
tract signed  b}-  an  agent  takes  it  out  of  the  operation  of  the  statute 
more  satisfactorily  than  an  authority  given  beforehand.  Where  the 
authority  is  given  beforehand,  the  party  must  trust  to  his  agent ;  if  it 
be  given  subsequently  to  the  contract,  the  party  knows  that  all  has 
been  done  according  to  his  wishes.  But  in  Kinnitz  v.  Surry,  where  the 
broker,  who  signed  the  broker's  note  upon  a  sale  of  corn,  was  the  sel- 
ler's agent,  Lord  Ellenborough  held  that  if  the  buyer  acted  upon  the 
note,  that  was  such  an  adoption  of  his  agency  as  made  his  note  sufficient 
within  the  Statute  of  Frauds  ;  and  in  Soames  v.  Spencer,  1  Dow.  &  Ry. 
32,  where,  A.  and  B.,  being  jointly  interested  in  a  quantity  of  oil,  A. 
entered  into  a  contract  for  the  sale  of  it  without  the  authority  or 
knowledge  of  B.,  who  upon  receiving  information  of  the  circumstance 
refused  to  be  bound,  but  afterwards  assented  by  parol,  and  samples 
were  delivered  to  the  vendees,  it  was  held,  in  an  action  against  the 
vendees,  that  B.'s  subsequent  ratification  of  the  contract  rendered  it 
binding,  and  that  it  was  to  be  considered  as  a  contract  in  writing 
within  the  Statute  of  Frauds.  That  is  an  express  decision  on  the  point 
that  under  the  Statute  of  Frauds  the  ratification  of  the  principal  relates 
back  to  the  time  when  the  agent  made  the  contract. 

Then  with  regard  to  the  resale,  it  seems  clear  to  me  that  it  did  not 
rescind  the  contract.  It  is  admitted  that  perishable  articles  ma}r  be 
resold.  It  is  difficult  to  say  what  may  be  esteemed  perishable  articles 
and  what  not;  but  if  articles  are  not  perishable,  price  is,  and  may  alter 
in  a  few  days  or  a  few  hours.  In  that  respect  there  is  no  difference 
between  one  commodity  and  another.  It  is  a  practice  therefore  founded 
on  good  sense  to  make  a  resale  of  a  disputed  article,  and  to  hold  the 
original  contractor  responsible  for  the  difference.  The  practice  itself 
affords  some  evidence  of  the  law,  and  we  ought  not  to  oppose  it  except 
on  the  authority  of  decided  cases.  Those  which  have  been  cited  do 
not  apply.  Where  a  man,  in  an  action  for  goods  sold  and  delivered, 
insists  on  having  from  the  vendee  the  price  at  which  he  contracted  to 
dispose  of  his  goods,  he  cannot  perhaps  consistently  with  such  a 
demand  dispose  of  them  to  another  ;  but  if  he  sues  for  damages  in  con- 
sequence of  the  vendee's  refusing  to  complete  his  contract,  it  is  not 
necessary  that  he  should  retain  dominion  over  the  goods:  he  merely 
alleges  that  a  contract  was  entered  into  for  the  purchase  of  certain 
articles,  that  it  has  not  been  fulfilled,  and  that  he  has  sustained  damage 
in  consequence.  There  is  nothing  in  this  which  requires  that  the 
property  should  be  in  his  hands  when  he  commences  the  suit ;  and  it 
is  required  neither  by  justice  nor  by  the  practice  of  the  mercantile 
world. 


SECT.  VII.]  IIOADLY   V.    M'LAINE.  885 

In  actions  on  the  warranty  of  a  horse  it  is  the  constant  practice  to 
sell  the  horse,  and  to  sue  to  recover  the  difference.  The  usage  in  every 
branch  of  trade  is  equally  against  the  objection  which  has  been  raised 
on  the  part  of  the  defendants.  It  is  urged  indeed  that  in  contracts 
entered  into  by  the  East  India  Company  the  power  of  resale  is  ex- 
pressly provided  for  in  case  the  vendee  should  refuse  to  perform  his 
contract.  That  is  only  ex  abundanti  cautela,  and  it  has  never  been 
decided  that  a  resale  of  the  goods  is  a  bar  to  an  action  for  damages 
for  non-performance  of  a  contract  to  purchase  them  :  the  contrary  has 
been  held  at  nisi  prius.  But  without  referring  to  a  nisi  prius  case 
as  authority,  we  are  anxious  to  confirm  a  rule  consistent  with  con- 
venience and  law.  It  is  most  convenient  that  when  a  party  refuses  to 
take  goods  he  has  purchased,  they  should  be  resold,  and  that  he  should 
be  liable  to  the  loss,  if  any  upon  the  resale.  The  goods  may  become 
worse  the  longer  they  are  kept ;  and  at  all  events  there  is  the  risk  of 
the  price  becoming  lower.  Rule  discharged. 


HOADLY   v.   M'LAINE. 

In  the  Common  Pleas,  April  19,  1834. 

[Reported  in  10  Bingham,  482.] 

Tins  was  an  action  against  the  defendant  for  not  accepting  a  landau- 
let  made  to  his  order  by  the  plaintiff. 

The  order,  which  was  in  writing  and  delivered  to  the  plaintiff  on  the 
15th  of  May,  1832,  was  as  follows  :  — 

"  Sir  Archibald  M'Laine  orders  Mr.  Hoadly  to  build  a  new,  fashion- 
able, and  handsome  landaulet,  with  the  following  appointments  :  [here 
followed  a  minute  detail  of  various  small  matters,  to  which  the  propri- 
etors of  such  vehicles  attach  importance]  the  whole  to  be  ready  by 
the  1st  of  March,  1833." 

The  carriage  was  completed  by  the  time  agreed  on,  but  in  the  course 
of  its  construction  a  great  number  of  alterations  and  additions  were 
made  from  time  to  time  at  the  request  of  the  defendant. 

In  April.  1833,  the  defendant  wrote  to  the  plaintiff,  desiring  that  he 
would  send  his  bill  for  the  carriage,  and  announcing  the  defendant's 
intention  to  have  it  out  immediately.  The  bill,  however,  amounting  to 
£480,  the  defendant  refused  to  pay  it,  or  to  accept  the  carriage. 
Whereupon  the  plaintiff  brought  the  present  action  ;  and  a  great  num- 
ber of  coach-makers  having  proved  that  the  landaulet  was  of  such 
exquisite  workmanship  and  so  highly  ornamented  as  to  be  cheap  at 
the  price  demanded,  the  jury  gave  a  verdict  for  the  plaintiff  with  £200 
damages. 

Jones,  Serjt..  obtained  a  rule  nisi  to  set  aside  this  verdict. 

Wilde  and  Coleridf/r,  Serjts.,  showed  cause. 

Atcherley,  Serjt.  (late  Jones),  contra. 


886  HOADLY   V.    M'LAiXE.  [CHAP.  VL 

Tixdal,  C.  J.  This  is  an  action  against  the  defendant  for  not 
accepting  a  carriage  built  pursuant  to  his  order;  and  the  question 
depends  upon  the  construction  to  be  put  on  the  statute  9  G.  4,  c.  14, 
§  7.  which  extends  to  executory  contracts  the  enactments  of  the  29  Car. 
2,  c.  3,  §  17,  as  to  executed  contracts  for  sale  of  goods,  by  providing 
[stating  it]. 

The  same  construction,  therefore,  must  be  put  on  the  one  act  as  on 
the  other  ;  but  the  extreme  accuracy  of  mind  of  the  framer  of  the  latter 
act  is  shown  in  this  :  that  while  the  Statute  of  Frauds  in  its  enactments 
touching  contracts  for  the  sale  of  goods  employs  the  word  "  price"  the 
framer  of  the  latter  act  has  substituted  the  word  "  value,"  so  that  where 
the  parties  have  omitted  to  fix  a  price  it  may  be  open  to  a  jury  to  ascer- 
tain the  value  in  dispute. 

The  question,  therefore,  is  whether  the  order  of  May,  1832,  is  a  suffi- 
cient note  or  memorandum  of  the  bargain  between  these  parties  within 
the  17th  section  of  the  Statute  of  Frauds  ;  and  I  am  of  opinion  it  is. 

It  is  clear  that  a  contract  for  the  sale  of  a  commodity  in  which  the 
price  is  left  uncertain  is  in  law  a  contract  for  what  the  goods  shall  be 
found  to  be  reasonably  worth.  This  is  no  new  doctrine  ;  for  in  Black- 
stone's  Commentaries,  b.  2,  c.  30,  it  is  laid  down  that  "  express  con- 
tracts are  where  the  terms  of  the  agreement  are  openly  uttered  and 
avowed  at  the  time  of  the  making,  as  to  deliver  an  ox,  or  ten  loads  of 
timber,  or  to  pay  a  stated  price  for  certain  goods  ;  implied  are  such  as 
reason  and  justice  dictate,  and  which,  therefore,  the  law  presumes  that 
every  man  undertakes  to  perform  :  as,  if  I  take  up  wares  from  a  trades- 
man without  any  agreement  of  price,  the  law  concludes  that  I  contracted 
to  pay  their  real  value.  ...  A  contract  for  any  valuable  consideration, 
as  for  marriage,  for  money,  for  work  done,  or  for  other  reciprocal  con- 
tracts, can  never  be  impeached  at  law.  .  .  These  valuable  considera- 
tions are  divided  by  the  civilians  into  four  species.  .  .  .  The  third 
species  of  consideration  is,  facto  ut  des,  when  a  man  agrees  to  perform 
anything  for  a  price,  either  specifically  mentioned  or  left  to  the  deter- 
mination of  the  law  to  set  a  value  on  it." 

What  is  implied  by  law  is  as  strong  to  bind  the  parties  as  if  it  were 
under  their  hand.  This  is  a  contract  in  which  the  parties  are  silent  as 
to  price,  and  therefore  leave  it  to  the  law  to  ascertain  what  the  com- 
modity contracted  for  is  reasonably  wort'h. 

It  has  been  contended  that  this  would  open  a  door  for  perjury,  and 
let  in  the  mischief  which  the  Statute  of  Frauds  proposes  to  exclude. 
But  I  cannot  agree  in  that  proposition  ;  for  it  does  not  appear  that  any 
specific  price  was  agreed  on  ;  and  if  it  had  appeared  that  such  was  the 
case,  this  note  would  not  have  been  evidence  of  such  a  bargain,  as  the 
case  of  Elmore  V.  Kingscote  expressly  decides.  Thus  the  law  stands 
on  the  note  or  memorandum  of  May,  1832.  But  we  may  look  at  all  the 
writings  to  see  what  the  contract  was;  and  here,  from  the  defendant's 
letter  of  April.  1833,  it  appears  that  after  he  had  seen  the  carriage  he 
desired  the  plaintiff  to  send  in  his  hill.     He  must  have  known  whether 


SECT.  VII.]  HA  WES   V.    FORSTER.  887 

he  had  contracted  for  the  stipulated  price  or  not ;  and  it  ma}',  therefore, 
be  inferred  from  this  letter  that  he  knew  he  was  to  pay  the  reasonable 
charge  when  the  article  was  made  up. 

Taking  the  whole  together,  there  can  be  no  doubt  that  here  is  a  suffi- 
cient note  or  memorandum  of  the  bargain,  and  therefore  the  rule  must 
be  discharged.  Rule  discharged.1 


IIAWES   and   Another   v.   FORSTER   and   Another. 
At  Guildhall,  coram  Lord  Denman,  July  3,  1834. 

[It* ported  in  1   Moody  $-  Robinson,  368.] 

Assumpsit  to  recover  the  sum  of  £320,  being  the  amount  of  damages 
sustained  by  the  plaintiffs  by  the  non-delivery  of  oil  on  the  30th  of  June, 
1831,  pursuant  to  contract. 

Plea,  general  issue. 

This  was  the  second  trial  of  the  action.  On  the  first  trial  (which  took 
place  before  Ld.  C.  J.  Denman  and  a  special  jury  at  the  London  sittings 
after  Michaelmas  term,  1832),  it  appeared  that  the  oil  had  been  bought 
by  the  plaintiffs  of  the  defendants  through  Mr.  Wright,  one  of  the 
sworn  brokers  of  the  city  of  London.  The  plaintiffs  on  that  occasion 
put  in  the  bought  note,  which  was  in  the  following  terms  :  — 

Bought  for  Messrs  B.  T.  and  W.  Hawes,  of  Messrs.  Forster  and 
Smith,  from  80  to  100  tons  of  palm  oil  of  merchantable  qualit}-,  free 
from  dirt  and  water,  at  £26  per  ton,  payable  per  cash,  &c.  The  above 
oil  warranted  to  arrive  on  or  before  the  30th  of  June  (current),  ex  Pre- 
mier, Fullerton,  Cape  Coast.     Customary  allowances. 

Thomas  Wright,  .Broker. 

London,  27th  of  May,  1831. 

And  Mr.  Wright,  being  called  by  the  plaintiffs  and  having  proved  his 
being  employed  by  the  defendants  to  sell  the  oil,  said  that  he  made  and 
signed  an  entry  of  the  contract  in  his  broker's  book  ;  that  the  bought 
note  was  written  by  his  clerk,  and  signed  by  himself;  that  the  entry  was 
made,  and  the  bought  and  sold  notes  written  and  sent  to  the  respective 
parties  on  the  same  evening,  but  whether  the  entry  or  the  notes  were 
first  written  he  could  not  say. 

The  plaintiffs  proved  that  on  the  day  mentioned  in  the  bought  note 
(30th  of  June)  they  required  the  defendants  to  deliver  the  oil ;  and 
that,  default  being  made,  they  had  bought  other  oil  at  an  advanced 
price.  The  sold  note  was  not  called  for  by  the  plaintiffs  on  the  trial ; 
whereupon 

Campbell,  S.  G.,  for  the  defendants,  submitted  that  the  plaintiffs  must 
be  nonsuited.  It  was  the  universal  usage  to  produce  both  the  bought 
note  and  the  sold  note  ;  and  there  was  no  evidence  of  a  binding  con- 
1  Park,  Gaselee,  and  Bosanqoet,  J.I.,  delivered  concurring  opinions. 


888  HAWES  V.    FOESTER.  [CHAP.  VI. 

tract  between  the  parties  without  producing  the  two  instruments  and 
showing  their  correspondence  with  each  other. 

Sir  J.  Scarlett,  for  the  plaintiff.  The  bought  note  which  has  been 
produced  by  the  plaintiffs  is  evidence  of  a  contract  signed  by  Mr.  Wright, 
who  is  proved  to  be  the  agent  of  the  party  charged  therewith.  It  is  not 
necessary  for  the  plaintiffs  to  go  further. 

Denman,  Ld.  C.  J.,  was  of  opinion  that  the  plaintiffs  were  not  called 
upon  to  give  any  evidence  of  the  sold  note  delivered  by  the  broker  to 
the  defendants. 

Campbell,  S.  G.,  then  offered  to  produce  the  broker's  book,  according 
to  which  (as  he  suggested)  the  defendants  were  not  to  be  bound  by  the 
contract  unless  the  ship  mentioned  in  the  bought  note  should  arrive  by 
the  30th  of  June.  And  he  contended  that  the  entry  in  the  broker's  book 
formed  the  original  contract ;  the  bought  and  sold  notes  being  in  fact 
only  minutes  of  the  contract  furnished  by  the  broker  to  the  two  parties. 
And  he  cited  Heyman  v.  Neale,  2  Campb.  337  ;  Grant  v.  Fletcher,  5 
B.  &  C.  436  ;  Goom  v.  Aflalo,  6  B.  &  C.  117. 

Sir  J.  Scarlett,  contra,  relied  upon  the  case  of  Thornton  v.  Meux,  M. 
&  M.  43,  as  the  last  authority  upon  the  subject,  distinctly  showing  that 
the  entry  in  the  broker's  book  is  not  admissible  in  evidence  to  contradict 
the  bought  note. 

Denman,  Ld.  C.  J.  I  am  of  opinion  that  the  plaintiffs  have  proved  a 
contract  by  producing  the  bought  note  signed  by  Mr.  Wright,  and 
showing  that  person  to  have  been  the  agent  engaged  by  the  defendants 
to  dispose  of  the  oil.  It  is  not  shown  that  the  sold  note  delivered  to 
the  defendants  differed  from  the  bought  note  delivered  to  the  plaintiffs  ; 
had  that  been  shown  to  be  the  case,  it  would  have  been  very  material ; 
but  in  the  absence  of  all  proof  of  that  nature  I  am  clearly  of  opinion 
that  I  must  look  to  the  bought  note,  and  to  that  alone,  as  the  evidence 
of  the  terms  of  the  contract ;  the  defendants  shall,  however,  have  leave 
to  move  for  a  nonsuit. 

The  evidence  was  rejected  ;  and  under  the  direction  of  his  Lordship 
the  jury  returned  a  verdict  for  the  plaintiff. 

In  Hilary  term  following,  Campbell,  S.  G.,  obtained  a  rule  to  show 
cause  why  the  verdict  should  not  be  set  aside,  and  a  nonsuit  entered  on 
the  ground  of  the  non-production  of  the  sold  note  ;  or  else  why  a  new 
trial  should  not  be  granted  on  the  ground  that  the  entry  in  the  broker's 
book  formed  the  contract,  and  that  such  book  ought,  therefore,  to  have 
been  received  as  evidence  for  the  defendants  on  the  trial. 

The  rule  as  to  the  nonsuit  was  discharged  ;  but  the  rule  for  a  new 
trial  was,  after  argument  and  time  taken  by  the  court  for  consideration, 
made  absolute  ;  the  Lord  Chief  Justice  saying  that  the  court  doubted 
whether  the  case  involved  any  point  of  law  at  all,  and  whether  it  did 
not  rather  turn  upon  the  custom,  viz.,  how  the  broker's  book  was  treated 
by  those  who  dealt  with  him.  Looking  to  the  importance  of  the  ques- 
tion the  court  thought  it  fit  to  let  it  undergo  further  consideration  in 
order  that  evidence  might  be  given  as  to  the  usage  of  trade  in  the  city ; 


SECT.  VII.]  HAWKS    V.    FOESTER.  889 

and  his  Lordship  added  that,  if  it  were  deemed  matter  of  law,  it  would 
be  better  to  tender  a  bill  of  exceptions  ;  if  matter  of  fact,  to  let  the 
opinion  of  the  jury  be  taken  upon  it. 

The  case  accordingly  now  came  down  for  a  second  trial ;  and  on  this 
occasion  the  plaintiffs  (after  putting  in  the  bought  note  and  examining 
the  broker  to  the  same  effect  as  on  the  former  trial)  called  upon  the 
defendants  after  due  notice  to  produce  the  sold  note  :  it  was  accordingly 
produced,  and  corresponded  with  the  bought  note  already  set  forth. 
The  plaintiffs  then  called  several  of  the  most  eminent  merchants  in  tin 
city,  all  of  whom  concurred  in  declaring  that  they  had  never  known  an} 
instance  where  the  broker's  book  had  been  referred  to,  and  that  they 
always  looked  to  the  bought  and  sold  notes  as  the  contract ;  and  some 
of  them  added  that,  if  the  broker's  bought  or  sold  note  (as  the  case 
might  be)  were  not  consonant  with  their  directions  to  the  broker,  they 
returned  it. 

For  the  defence,  the  broker's  book  was  produced  ;  and  the  entry 
respecting  the  transaction  in  question  was,  without  opposition,  read.  It 
agreed  with  the  bought  and  sold  notes  excepting  that,  instead  of  the 
words,  "  The  above  oil  warranted  to  arrive  on  or  before  the  30th  of  June, 
ex  Premier,  Fullerton,  Cape  Coast,"  the  words  in  the  broker's  book 
were,  "  If  the  above  do  not  arrive  on  or  before  the  30th  of  June,  this 
contract  to  be  void."  The  defendants  did  not  call  witnesses  to  rebut 
the  evidence  given  by  the  plaintiffs  as  to  the  usage  ;  but  they  produced 
a  copy  of  the  regulations  made  in  the  year  1818  by  the  Court  of  Alder- 
men for  the  conduct  of  sworn  brokers,  and  which  regulations  were 
proved  to  have  been  generally  circulated.1 

Lord  Denman,  C.  J.,  in  summing  up  the  case  said  to  the  jury  :  "  The 
only  question  before  you  is.  whether  the  bought  and  sold  notes  consti- 
tuted the  contract :  or  whether  the  entry  in  the  broker's  book,  which  in 
this  case  differed  from  the  bought  and  sold  notes,  constituted  it.  I  have 
on  a  former  occasion  expressed  my  own  opinion  to  be,  that  in  point  of 
law  the  note  delivered  by  the  broker  to  the  party  is  the  real  contract ; 
that  is  still  my  opinion  :  but  it  has  been  thought  better  that  the  point 
should  be  submitted  to  you  simply  as  a  matter  of  fact;  that  you  may 
say  which,  according  to  the  usage  of  trade  in  this  city,  has  been  the 
binding  contract, —  the  broker's  book  or  the  bought  and  sold  notes.     If 

1  According  to  those  regulations  the  broker  is  directed  to  enter  all  contracts  on  the 
day  of  the  making  thereof,  &c,  and  deliver  a  contract  note  to  both  buyer  and  seller,  or 
either  of  them,  within  twenty-four  hours  after  request,  containing  therein  a  true  copy 
of  such  entry  :  and  shall,  upon  demand  being  made  by  buyer  or  seller,  show  such  entry 
to  them,  to  manifest  and  prove  the  truth  and  certainty  of  such  contract.  The  bond 
executed  by  brokers  has,  since  these  regulations,  been  conditioned  for  their  making 
their  entries.  &c,  in  the  manner  pointed  out  in  the  regulations  :  before  the  making  of 
these  regulations,  the  broker  was  only  required  to  enter  the  contract  iu  his  book  within 
three  days  after  it  was  made. 

These  regulations  were  made  in  consequence  of  the  report  of  a  committee  of  the 
corporation  of  London,  appointed  on  the  7th  of  March,  1815,  to  inquire  into  the  prac- 
tice and  general  conduct  of  the  brokers  of  the  city.  The  report  of  the  committee  will 
be  found  to  embrace  the  whole  history  of  the  brokers  of  London. 


890  JOHNSON   V.    DODGSON.  [CHAP.  VI. 

the  evidence  has  satisfied  you  that,  according  to  the  usage  of  trade,  the 
bought  and  sold  notes  are  the  contract  (and  the  evidence  adduced  before 
3011  to  show  that  they  are  so  considered  has  not  been  met  by  any  con- 
tradictory evidence  from  the  other  side),  then  you  will  find  your  verdict 
for  the  plaintiffs.  Verdict  for  the  plaintiffs. 


JOHNSON   and   Others   v.   DODGSON. 
In  the  Exchequer,  Trinity  Term,   1837. 

[Reported  in  2  Meeson  §*  Welsh ij,  653.] 

Assumpsit  for  goods  sold  and  delivered,  and  on  an  account  stated. 
Plea,  ?ion  assumpsit.  At  the  trial  before  Lord  Abinger,  C.  B.,  at  the 
London  sittings  after  last  Hilary  term,  it  appeared  that  the  action  was 
brought  to  recover  the  sum  of  £246  19s.  (3d.,  being  the  price  of  thirty- 
one  pockets  of  Sussex  hops  sold  by  the  plaintiffs,  hop  merchants  in 
London,  to  the  defendant,  a  hop  merchant  in  Leeds,  under  the  follow- 
ing circumstances  :  — 

The  plaintiffs'  traveller,  one  Morse,  called  on  the  defendant  at  Leeds 
with  some  samples  of  hops,  and  agreed  with  him  for  the  sale  of  the 
hops  in  question.  The  defendant  then  wrote  the  following  memoran- 
dum in  a  sample-book  of  his  own,  which  he  retained  in  his  own 
possession  :  — 

Leeds,  19th  October,  1836- 
Sold  John  Dodgson 

27  pockets  Playsted,  1836,  Sussex,  @  103s. 
The  bulk  to  answer  the  sample. 
4  pockets  Selme,  Beckley's,  @  95s. 
Samples  and  invoice  to  be  sent  per  Rockingham  coach. 
Payment  in  bankers'  at  two  months. 

Signed  for  Johnson,  Johnson,  &  Co. 

D.  Morse. 

The  signature  was  added  at  the  defendant's  request  by  Morse.  On 
the  same  evening  the  defendant  wrote  to  the  plaintiffs  the  following 
letter  :  — 

Leeds,  Wednesday  evening,  19th  October,  1836. 

Gentlemen,  —  Please  to  deliver  the  27  pockets  Playsted,  and  the  4 
pockets  Selmes,  1836,  Sussex,  to  Mr.  Robert  Pearson  or  bearer,  to  be 
carted  to  Stanton's  wharf:  20  pockets  of  Playsted  to  be  forwarded  per 
lirst  ship,  and  the  remaining  11  pockets  per  the  second  ship,  and  you 
will  oblige,  gentlemen, 

Your  most  obedient,  John  Dodgson. 

Bulk  s;nn|>lt's  wore  sent  pursuant  to  the  contract  by  the  Rockingham 
coach,  and  reached  Leeds  on  the  24th  of  October,  but  were  returned  by 


SECT.  VII.]  JOHNSON    V.    DODGSON.  891 

the  defendant  as  not  answering  the  samples  by  which  he  bought  from 
Morse.  There  was  much  conflicting  evidence  as  to  whether  there  had 
or  had  not  been  a  substitution  of  inferior  samples  in  lieu  of  the  genuine 
ones  :  thai  question  was  left  to  the  jury,  who  found  it  in  favor  of  the 
plaintiffs.  For  the  defendant  it  was  objected  that  there  was  no  suf- 
ficient  memorandum  of  the  contract  in  writing  to  satisfy  the  Statute  of 
Frauds;  the  entry  in  the  defendant's  book  not  being  signed  by  him, 
and  his  subsequent  letter  not  referring,  as  it  was  contended,  in  suf- 
Gciently  express  terms  to  that  entry  as  that  it  might  be  connected  with 
it.     This  point  was  reserved,  and  accordingly  in  Easter  term 

Cresswell  obtained  a  rule  nisi  for  entering  a  nonsuit ;  against  which 

Thesiger  (with  whom  were  Erie  and  Evans)  now  showed  cause. 

Cresswell  and  Wightman,  in  support  of  the  rule. 

Loud  AniNGEK,  C.  B.  1  think  this  is  a  very  clear  case.  If  it  rested 
upon  the  question  as  to  the  recognition  of  the  contract  by  the  letter 
there  might  have  been  some  doubt,  although  even  upon  that  I  should 
have  thought  the  reference  to  the  only  contract  proved  in  the  case 
sufficient.  But  on  the  other  point  it  really  seems  to  me  one  of  the 
strongest  cases  that  have  occurred.  The  Statute  of  Frauds  requires 
that  there  should  be  a  note  or  memorandum  of  the  contract  in  writing 
signed  by  tin.'  party  to  be  charged.  And  the  cases  have  decided  that, 
although  the  signature  be  in  the  beginning  or  middle  of  the  instru- 
ment, it  is  as  binding  as  if  at  the  foot  of  it ;  the  question  being  always 
open  to  the  jury  whether  the  party  not  having  signed  it  regularly  at 
the  foot  meant  to  be  bound  by  it  as  it  stood,  or  whether  it  was  left  so 
unsigned  because  he  refused  to  complete  it.  But  when  it  is  ascer- 
tained that  he  meant  to  be  bound  by  it  as  a  complete  contract,  the 
statute  is  satisfied,  there  being  a  note  in  writing  showing  the  terms  of 
the  contract  and  recognized  by  him.  I  think  in  this  case  the  requisi- 
tions of  the  statute  are  fully  complied  with.  The  written  memoran- 
dum contains  all  the  terms  of  the  contract:  it  is  in  the  defendant's  own 
handwriting,  containing  his  name  ;  and  it  is  signed  by  the  plaintiffs 
through  their  agent. 

Parke,  B.  I  am  of  the  same  opinion,  and  think  this  was  a  suffi- 
cient memorandum  in  writing.  The  defendant's  name  was  contained 
in  it  in  his  own  handwriting,  and  it  was  signed  by  the  plaintiffs.  The 
point  is  in  effect  decided  by  the  cases  of  Saunderson  v.  Jackson  and 
Schneider  v.  Norris.  There  the  bills  of  parcels  were  held  to  be  a  suffi- 
cienl  memorandum  in  writing,  it  being  proved  that  they  were  recog- 
nized by  being  handed  over  to  the  other  party.  Here  the  entry  was 
written  by  the  defendant  himself,  and  required  by  him  to  be  signed  by 
the  plaintiffs'  agent.  That  is  amply  sufficient  to  show  that  he  meant 
it  to  be  a  memorandum  of  contract  between  the  parties.  If  the 
question  turned  on  the  recognition  by  the  subsequent  letter.  I  own  I 
should  have  had  very  considerable  doubt  whether  it  referred  sulli- 
ciently  to  the  contract:  it  refers  to  the  subject-matter,  but  not  to  the 
specific  contract.      But  it  is  unnecessary  to  give  any  opinion  upon  that, 


892  STEAD   V.    DAWBER.  [CHAP.  VI. 

because  on  the  former  point  I  think  there   is   a   sufficient   note   in 
writing. 

Bollaxd,  B.  I  am  of  the  same  opinion,  —  that  the  entry  made  by 
the  defendant  was  a  sufficient  memorandum  in  writing  ;  and  if  it  were 
necessary  to  decide  the  other  point,  I  should  also  be  inclined  to  think 
the  letter  sufficiently  connected  with  the  contract. 

Hide  discharged. 


STEAD   v.  DAWBER  and  STEPHENSON. 
In  the  Queen's  Bench,   Mat  7,   1839. 

[Reported  in   10  Adolphus  $•  Ellis,  57.] 

Lord  Denman,  C.  J.,  in  this  term  (May  7th)  delivered  the  judgment 
of  the  court. 

This  was  an  action  to  recover  damages  for  the  non-delivery  of  a 
cargo  of  bones.  By  the  sold  note  they  were  to  be  shipped  on  the  20th 
to  the  22d  of  May,  and  to  be  paid  for  by  an  acceptance* at  three  months 
from  the  delivery.  The  22d  happened  to  be  on  a  Sunday  ;  and  a  con- 
versation taking  place  between  the  defendant  and  the  plaintiffs  agent 
respecting  this,  upon  the  suggestion  of  the  defendant  the  Monday  or 
Tuesday  immediately  following  were  substituted  as  the  days  of  deliv- 
ery. The  agent  who  proved  this  also  stated  that  the  time  for  giving 
the  acceptance  would  in  consequence  be  also  proportionably  enlarged. 
The  main  question  at  the  trial  and  before  us  was,  whether  this  enlarge- 
ment of  the  time  was  an  alteration  of  the  contract  or  only  a  dispensa- 
tion with  its  performance  as  to  time.  The  declaration  after  setting  out 
the  original  contract  stated  that  the  plaintiff,  at  the  special  instance  of 
the  defendants,  gave  them  time  for  the  delivery  to  the  24th  May,  and 
averred  a  demand  on  the  24th.  The  fourth  plea  alleged  that  this  giv- 
ing time  was  parcel  of  a  contract  within  the  Statute  of  Frauds  ;  that 
there  was  no  acceptance  wholly  or  in  part,  or  any  earnest  or  part  pay- 
ment ;  and  that  there  was  no  note  or  memorandum  in  writing  of  it ; 
and  the  replication  traversed  its  being  parcel  of  the  contract. 

The  principles  on  which  this  case  must  lie  decided  are  clear  and 
admitted.  The  contract  is  a  contract  within  the  Statute  of  Frauds,  and 
cannot  lie  proved,  as  to  any  essential  parcel  of  it,  by  merely  oral  testi- 
mony ;  for  to  allow  such  a  contract  to  be  proved  partly  by  writing  and 
partly  by  oral  testimony  would  let  in  all  the  mischiefs  which  it  was  the 
object  of  the  statute  to  exclude.  Many  cases  were  cited  in  the  argu- 
ment on  both  sides,  the  plaintiff's  counsel  relying  chiefly  on  Cuff  v. 
Penn,  1  M.  &  S.  21,  the  defendants  on  Goes  r.  Lord  Nugent,  5  B.  & 
Ad.  58,  the  decision  in  which  it  is  certainly  not  easy  to  reconcile  with 
that  in  the  former.  But  it  seems  to  us  that  we  arc  mainly  called  on  to 
decide  a  question  of  fact,  —  What,  namely,  was  the  intention  of  the 


SECT.  VII.]  STEAD   V.   DAWBEK.  893 

parties  in  the  arrangement  come  to  for  substituting  the  24th  for  the 
22d  as  the  day  of  delivery  :  did  they  intend  to  substitute-  a  new  con- 
tract for  the  old  one,  the  same  in  all  other  respects,  except  those  of 
the  day  of  delivery  and  date  of  the  accepted  bill,  with  the  old  one? 
Where  the  variation  is  so  slight  as  in  the  present  case,  and  the  conse- 
quences so  serious,  the  mind  conies  reluctantly  to  this  conclusion  ;  and 
this  reluctance  is  increased  by  considering  in  how  many  instances  of 
written  contracts  within  the  Statute  of  Frauds  slight  variations  are 
made  at  the  request  of  one  or  other  of  the  parties,  without  the  least 
idea  at  the  time  of  defeating  the  legal  remedy  or  the  original  contract. 
But  the  same  principle  must  be  applied  to  the  variation  of  a  day  and 
a  week  or  a  month  ;  and  it  seems  impossible  to  suppose  that,  when  the 
plain! ill'  had  agreed  to  substitute  the  24th  for  the  22d,  either  party 
imagined  that  an  action  could  be  brought  for  non-delivery  on  the  22d, 
or  that  the  delivery  on  the  24th  would  not  be  a  legal  performance  of 
the  contract  existing  between  them. 

It  was  urged  by  the  plaintiff's  counsel  that  the  defendant's  argu- 
ment reduced  him  to  an  inconsistency  ;  that  he  alleged  on  the  one 
hand  an  alteration  of  the  contract  by  parol,  and  yet  on  the  other 
asserted  that  such  alteration  by  parol  could  not  be  made.  But  this  is 
in  truth  to  confound  the  contract  with  the  remedy  upon  it.  Inde- 
pendently of  the  statute,  there  is  nothing  to  prevent  the  total  waiver 
or  the  partial  alteration  of  a  written  contract  not  under  seal  by  parol 
agreement,  and  in  contemplation  of  law  such  a  contract  so  altered 
subsists  between  these  parties  ;  but  the  statute  intervenes,  and  in  the 
case  of  such  a  contract  takes  away  the  remedy  by  action.  It  cannot 
be  said  that  the  time  of  delivery  was  not  originally  of  the  essence  of 
this  contract :  the  evidence  shows  that  the  value  of  this  article  was 
fluctuating  ;  and  the  time  of  payment  was  to  be  calculated  from  the 
time  of  delivery.  Where  these  circumstances  exist,  it  cannot  in  strict 
reasoning  be  argued,  as  was  said  by  Lord  Ellenborough  in  the  case  of 
Cuff  v.  Penn,  1  M.  &  S.  21,  that  the  contract  remained,  although  there 
was  an  agreed  substitution  of  other  days  than  those  originally  speci- 
fied for  its  performance.  Nor  does  any  difficulty  arise  from  the  want 
of  consideration  for  the  plaintiff's  agreement  to  consent  to  the  change 
of  days  ;  for  the  same  consideration  which  existed  for  the  old  agree- 
ment is  imported  into  the  new  agreement  which  is  substituted  for  it. 

Putting  therefore  that  construction  on  what  passed  between  these 
parties  which  best  effectuates  their  intention,  and  giving  also  full  effect, 
as  we  ought,  to  the  salutary  provisions  of  the  Statute  of  Frauds,  we 
think  that  this  giving  of  time  was  parcel  of  the  contract,  and  conse- 
quently that  the  verdict  on  the  fourth  plea  should  be  entered  for  the 
defendants.1  Hide  absolute  accordingly? 

1  At  the  trial  the  defendant's  counsel  contended  that  the  written  contract  having 
been  varied  there  was  no  complete  written  contract  under  the  statute  upon  which  the 
plaintiff  could  recover,  but  the  Judge  regarding  the  enlargement  of  time  as  only  dis- 
pensing with  prompt  performance  directed  a  verdict  for  the  plaintiff  giving  leave  to 
move  to  enter  a  verdict  for  the  defendants  on  the  issues  upon  the  first  (non  assumpsit) 
and  fourth  pleas.     A  rule  was  obtained  accordingly. 

2  Compare  Ogle  v.  Vane,  Law  Rep.  2  Q.  B.  275,'  3  Q.  B.  272. 


894  JACOB   V.    KIRK.  [CHAP.  VI. 


JACOB  v.  KIRK. 
At  Nisi  Prius,  coram  Parke,  B.,  June  5,  1839. 

[Reported  in  2  Mood'/  §r  Robinson,  221.] 

This  was  an  action  of  assumpsit  for  goods  bargained  and  sold. 
There  was  also  a  count  on  an  account  stated. 

First  plea,  non  assumpsit ;  second,  no  note  in  writing  to  satisfy  the 
Statute  of  Frauds  ;  and  issue  thereon. 

It  was  proved  that  the  plaintiff  travelled  over  the  country  selling 
cigars,  and  that  on  the  3d  July,  1838,  the  defendant  ordered  of  him 
about  fourteen  pounds  of  cigars  of  different  qualities.  It  was  also 
proved  that  at  the  time  of  the  order  being  given  the  plaintiff  had  not 
the  cigars  in  his  possession,  but  that  it  was  his  habit,  after  having 
obtained  the  orders,  to  send  them  from  a  wholesale  dealer  in  London. 

In  order  to  satisfy  the  Statute  of  Frauds,  the  plaintiff  produced  a  mem- 
orandum book,  containing  amongst  other  notes  and  orders  the  following 
pencil  entry  :  '»  Mr.  Kirk,  6  doz.  King's,  6  doz.  Queen's,  at  25s.  per  lb. ; 
2  doz.  others,  at  20s.  per  lb.  ;  to  Russell  Street,  Manchester.  Signed 
R.  K. ;"  which  signature  was  proved  to  be  in  the  defendant's  handwriting. 

The  plaintiff's  name  nowhere  appeared  in  the  book,  nor  was  there 
any  other  evidence  to  connect  the  plaintiff  with  the  order  so  entered, 
save  a  letter  from  the  defendant  in  the  month  of  August  following, 
addressed  to  the  plaintiff,  stating  that  he  had  received  a  letter  from  the 
plaintiff;  "that  he  was  surprised  at  the  plaintiff's  expecting  him  to 
accept  the  cigars,  which,  instead  of  having  been  sent  in  nine  or  ten 
days,  had  not  arrived  in  Manchester  till  the  10th  of  August;"  that  he 
therefore  should  not  think  of  accepting  them,  and  referred  him  to  his 
solicitor.  But  the  letter  did  not  refer  to  the  entry  in  the  above  book. 
This  being  the  plaintiff's  case, 

Erie,  for  the  defendant,  submitted  that  the  plaintiff  must  be  nonsuited. 

Piatt  and  Martin^  contra. 

Parke,  B.  My  opinion  is  that  the  first  count  is  not  made  out,  as 
there  was  not  here  a  bargain  for  any  specific  ascertained  chattels;  but 
with  respect  to  the  application  for  an  amendment,  I  must  sa}T  I  am 
disposed  to  open  the  door  for  amendments  as  wide  as  possible.  By 
allowing  the  amendment  here,  and  so  giving  the  plaintiff  an  opportunity 
of  bringing  forward  his  real  cause  of  action,  I  consider  I  shall  be  meet- 
ing the  justice  of  the  case  ;  but  of  course  the  defendant  must  have  time 
for  pleading  de  novo,  and  the  plaintiff  must  pay  the  costs  of  the  day 
and  of  the  amendment.  I  should  greatly  doubt,  however,  whether  it 
will  be  worth  while*  for  the  plaintiff  to  avail  himself  of  these  terms;  for 
1  am  of  opinion  that  he  cannot  get  over  the  objection  under  the  Statute 
of  Frauds.  My  opinion  is  that  the  letter  ought  clearly  to  refer  to 
the  pencil  memorandum  ;  and  that  the  whole  mischief  intended  to  be 
guarded  against  by  the  statute  would  be  incurred,  if  verbal  evidence 


SECT.  VII.]  MARSHALL   V.    LYNX.  895 

were  admitted  to  show  that  the  documents  must  necessarily  be  presumed 
to  refer  to  each  other. 

The  plaintiffs  counsel,  notwithstanding  this  intimation  of  the  learned 
Baron's  opinion,  requested  to  have  the  amendment  made;  and  Erie, 
for  the  defendant,  thereupon  elected  to  plead  forthwith  ;  which  being 
done,  the  defendant  obtained  a  verdict  on  the  ground  that  the  cigars 
had  not  been  sent  within  a  reasonable  time,  as  averred  in  the  amended 
count ;  and  under  the  direction  of  the  learned  Baron  the  defendant 
took  a  verdict  also  on  the  plea  of  the  Statute  of  Frauds. 

Verdict  for  the  defendant. 


MARSHALL  v.  LYNN. 
In  ttie  Exchequer,  Hilary  Term,  1840. 

[Reported  in  6  Meeson  Sf  Welsby,  109.] 

Assumpsit  to  recover  damages  for  the  non-performance  of  a  contract 
to  purchase  of  the  plaintiff  a  quantity  of  potatoes.1 

At  the  trial  before  Vaughan,  J.,  at  the  last  summer  assizes  for  Cam- 
bridge, it  appeared  that  on  the  15th  of  December,  1838,  the  plaintiff 
and  defendant  entered  into  a  written  contract,  of  which  the  following 

is  a  copy  :  — 

"Wisbech,  15th  December,  1838. 

Bought  of  Mr.  Thomas  Marshall  as  man}-  potatoes  as  will  load  his 
brig,  the  "  Kitty,"  Captain  William  Scott,  say  from  sixty  to  seventy 
lasts,  to  be  shipped  on  board  the  above  vessel  on  her  arrival  here  the 
next  time  —  say  what  pink  kidneys  he  has  at  45.  Gd.  per  sack,  and  the 
round,  white  and  blue  ones  at  4s.  3c?.  per  sack,  of  fifteen  ounces  net 
merchants'  ware,  free  on  board  the  said  ship.  Payment,  cash  on 
delivery.  (For  William  Lynn.)  Robert  Ltxn. 

Witness :     T.  Marshall. 

On  the  25th  of  December  the  "Kitty"  arrived  at  Wisbech,  that 
being  the  next  arrival  after  the  making  of  the  contract,  and  on  the  fol- 
lowing day  the  plaintiff's  son  informed  the  defendant  that  the  tl  Kitty" 
would  be  read}- to  take  in  the  potatoes  on  the  28th,  when  the  defendant 
requested  that  the  plaintiff  would  let  the  vessel  go  to  Lynn  and  load 
a  cargo  of  potatoes  which  he  had  purchased  there,  and  for  which  he 
could  not  obtain  a  vessel,  and  take  them  to  London  ;  and  he  then 
promised  the  plaintiff  to  take  the  plaintiff's  potatoes  the  next  time  the 
"  Kitty"  came  to  the  port  of  Wisbech.  This  proposal  was  agreed  to, 
on  the  understanding  that  the  plaintiff's  potatoes  should  be  taken 
the  next  time  the  "  Kitty  "  came.  In  pursuance  of  this  arrangement 
the  "  Kitty  "  sailed  to  Lynn  ;  and  after  proceeding  to  London,  and 
there  discharging  her   cargo,   she  returned   to  Wisbech,  and    arrived 

1  In  the  original  report  the  pleadings  are  stated  at  considerable  length ;  but  as 
no  question  arose  upon  them,  they  are  here  omitted. 


896  MARSHALL    V.    LYNX.  [CHAP.  VI. 

there  on  the  7th  of  February.  On  the  8th  of  February  the  vessel  was 
ready  to  receive  the  potatoes,  of  which  the  defendant  had  full  notice, 
and  was  requested  to  take  them  ;  but  the  defendant  said  he  could  not 
take  them  then,  nor  did  he  know  when  he  could;  and  he  ultimately 
declined  taking  them.  They  were  afterwards  shipped  to  London,  and 
there  sold  by  the  plaintiff,  who  brought  this  action  to  recover  the  loss 
sustained  by  the  defendant's  non-performance  of  the  contract.  It  was 
contended  at  the  trial,  on  the  part  of  the  defendant,  that  the  alteration  in 
the  time  fixed  by  the  terms  of  the  original  contract  for  shipping  the  pota- 
toes was  a  variation  of  it  in  a  material  part,  and  ought  to  have  been  in 
writing.  The  learned  judge  directed  the  jury  to  find  a  verdict  for  the  plain- 
tiff, giving  the  defendant  leave  to  move  to  enter  a  nonsuit.  Storks, 
Serjt.,  in  Michaelmas  term  obtained  a  rule  accordingly,  against  which 

Kelhj  and  Gunning  now  showed  cause. 

Storks,  Serjt.,  contra. 

Parke,  B.  I  am  of  opinion  that  this  rule  ought  to  be  made  absolute. 
If  it  had  not  been  for  the  decision  in  the  case  of  Stead  v.  Dawber  I 
should  have  wished  to  hear  the  argument  on  the  other  side,  and  prob- 
ably to  have  taken  time  to  consider ;  but  as  the  case  of  Cuff  v.  Penn, 
which  had  before  been  very  much  doubted,  appears  to  have  been  over- 
ruled by  Stead  v.  Dawber,  we  do  not  think  it  necessary  to  do  so. 
Here  there  was  an  original  contract  in  writing  to  send  these  goods  by 
the  first  vessel ;  an  alteration  as  to  the  time  of  their  deliver}'  was 
subsequentby  made  by  parol ;  and  the  point  to  be  decided  is,  whether 
such  an  alteration  by  parol  of  the  written  contract  can  be  binding.  It 
appears  to  me  that  it  cannot,  and  that  the  same  rule  must  prevail  as  to 
the  construction  of  the  17th  section  of  the  Statute  of  Frauds  which  has 
alreadj'  prevailed  as  to  the  construction  of  the  4th  section.  The 
decision  in  Goss  v.  Lord  Nugent,  the  principle  of  which  I  have  no 
doubt  is  perfectly  correct,  has  clearly  established,  with  respect  to  the 
case  of  a  contract  relating  to  the  sale  of  an  interest  in  lands,  that  if  the 
original  contract  be  varied,  and  a  new  contract  as  to  any  of  its  terms 
substituted  in  the  place  of  it,  that  new  contract  cannot  be  enforced  in 
law  unless  it  also  be  in  writing.  The  question  is,  whether  the  same 
reasoning  does  not  appl}T  to  a  contract  for  the  sale  of  goods  under  the 
17th  section.  [His  Lordship  read  that  section.]  It  appears  to  me  that 
no  distinction  can  be  made  ;  and  I  must  also  observe  that  it  seems  to 
me  to  be  unnecessary  to  inquire  what  are  the  essential  parts  of  the 
contract  and  what  not,  and  that  every  part  of  the  contract  in  regard  to 
which  the  parties  are  stipulating  must  be  taken  to  be  material ;  and 
perhaps  therefore  the  latter  part  of  the  judgment  in  Stead  v.  Dawber 
may  be  considered  as  laying  down  too  limited  a  rule.  Everything  for 
which  the  parties  stipulate  as  forming  part  of  the  contract  must  be 
deemed  to  be  material.  Now  in  this  case,  b}'  the  original  contract  the 
defendant  was  to  accept  the  goods,  provided  they  were  sent  by  the  first 
ship  :  the  parties  afterwards  agreed  b}-  parol  that  the  defendant  would 
accept  the  goods  if  they  were  sent  by  the  second  ship  on  a  subsequent 
voyage  ;  that  appears  to  me  to  be  a  different  contract  from  what  is 


SECT.  VII.]  THORNTON    V.    CHARLES.  897 

stated  before.  Such  was  my  strong  impression,  independently  of  any 
decision  on  the  point;  hut  the  case  of  Stead  v.  Dawber  is  precisely  in 
point  with  the  present;  and  on  looking  at  the  judgment  it  does  not 
appear  to  proceed  altogether  upon  the  time  being  an  essential  part  of 
the  contract,  but  on  the  ground  that  the  contract  itself,  whatever  be  its 
terms,  if  it  be  such  as  the  law  recognizes  as  a  contract,  cannot  be 
varied  by  parol.  It  has  been  said  that  the  adoption  of  this  rule  will 
produce  a  great  deal  of  inconvenience.  I  am  not,  however,  aware  of 
much  practical  inconvenience  that  can  result  from  it,  and  none  that 
furnishes  any  reason  for  altering  the  rule  of  law  in  respect  of  these 
mercantile  contracts.  The}'  frequently  vary  in  terms,  and  admit  of 
some  latitude  of  construction  ;  but  the  expressions  used  in  them  gene- 
rally indicate  the  intention  of  the  parties  sufficiently  well :  there  is  a 
sort  of  mercantile  short-hand,  made  up  of  few  and  short  expressions, 
which  generally  expresses  the  full  meaning  and  intention  of  the  parties. 
On  the  whole,  it  appears  to  me  that  no  reasonable  distinction  can  be 
made  between  tins  case  and  that  of  Goss  v.  Lord  Nugent.  This  is 
a  new  contract,  incorporating  new  terms  ;  and  I  think  it  cannot  be 
enforced  by  action  unless  there  is  a  note  in  writing  expressing  those 
new  terms  distinctly,  or  in  the  mercantile  phraseology  which,  as  I  have 
alread}'  said,  admits  of  some  latitude  of  interpretation.  This  action, 
therefore,  cannot  be  maintained,  and  a  nonsuit  must  be  entered. 

Hide  absolute} 


THORNTON  and  Another  v.  CHARLES. 
In  the  Exchequer,  April  29,  1842. 

[Reported  in  9  Meeson  §■   Welsby,  803.] 

'   Assumpsit  for  goods  sold  and  delivered,  and  on  an  account  stated. 

Plea,  non  assumpsit. 

At  the  trial  before  Lord  Abinger,  C.  B.,  at  the  London  sittings  after 
last  Michaelmas  term,  it  appeared  that  the  action  was  brought  for  the 
price  of  50  casks  of  tallow  alleged  to  have  been  sold  and  delivered  by 
the  plaintiffs  to  the  defendant.  On  the  20th  of  February,  1841,  the 
plaintiffs  instructed  their  brokers,  Messrs.  Smith  &  Marshall,  to  sell  for 
them  200  casks  of  tallow,  to  be  delivered  between  the  1st  of  September 
and  the  31st  of  December  following,  and  on  the  same  day  received 
from  the  brokers  a  sold  note  in  the  following  terms:  "  London,  20th 
February,  1841.  Sold,  for  Messrs.  B.  &  R.  Thornton  &  West,  to  our 
principals  200  casks  of  St.  Petersburg  first  sort  of  yellow  candle  tal- 
low," &c.  The  bought  note  was  in  the  same  terms,  except  that  it 
stated  the  purchase  to  be  of  50  casks  "  for  our  principals."  The  entry 
in  the  brokers'  book  was  as  follows:   "  London,  20th  February,  1841. 

1  Alderson  and  Gcrney.BB,  delivered  brief  concurring  opinions.  Kolfe,  B.,also 
concurred. 

57 


398  THORNTON    V.    CHARLES.  [CHAP.  VI. 

Sold  for  Messrs.  R.  Thorton  &  West  (Messrs.  Paton  &  Charles,  50  ; 
Mr.  John  Smith,  50  ;  Messrs.  Cattley  &  Stephenson,  100)  200  of  St. 
Petersburg  first  sort  of  yellow  candle  tallow,"  &c.  All  the  above  docu- 
ments were  put  in  evidence  at  the  trial.  The  names  of  the  principals 
on  either  side  were  not  disclosed.  .   .   . 

At  the  trial  it  was  objected  tor  the  defendant  that  the  plaintiffs  ought 
to  be  nonsuited  on  the  ground  that,  there  being  a  variance  between  the 
bought  and  sold  notes,  and  the  entry  in  the  brokers'  book  not  being 
admissible,  no  valid  contract  had  been  proved.  The  learned  judge 
being  of  that  opinion  nonsuited  the  plaintiffs,  giving  them  leave  to 
move  to  enter  a  verdict  if  the  court  should  be  of  a  contrary  opinion. 

Croioder  and  C.  A.  Wood  now  showed  cause. 

R.  V.  Richards  and  Martin,  contra. 

Parke,  B.  .  .  .  1  apprehend  it  has  never  been  decided  that  the  note 
entered  by  the  broker  in  his  book  and  signed  by  him,  would  not  be 
good  evidence  of  the  contract  so  as  to  satisfy  the  Statute  of  Frauds, 
there  being  no  other.  The  case  of  Hawes  v.  Forster  underwent  much 
discussion  in  the  Court  of  King's  Bench  when  I  was  a  member  of  that 
court,  and  there  was  some  difference  of  opinion  amongst  the  judges  ;  but 
ultimately  it  went  down  to  a  new  trial,  in  order  to  ascertain  whether 
there  was  any  usage  or  custom  of  trade  which  makes  the  broker's  note 
evidence  of  the  contract.  In  that  case  there  was  a  signed  entry  in  the 
book,  which  incorporated  the  terms  of  making  the  contract  void  in  the 
event  of  the  non-arrival  of  the  goods  within  a  certain  time.  The  bought 
and  sold  notes  which  were  delivered  to  the  parties  omitted  that  clause. 
Certainlv  it  was  the  impression  of  part  of  the  court  that  the  contract 
entered  in  the  book  was  the  original  contract,  and  that  the  bought  and 
sold  notes  did  not  constitute  the  contract.  The  jury  found  that  the 
bought  and  sold  notes  were  evidence  of  the  contract,  but  on  the  ground 
that  those  documents,  having  been  delivered  to  each  of  the  parties  after 
signing  the  entry  in  the  book,  constituted  evidence  of  a  new  contract 
made  between  the  parties  on  the  footing  of  those  notes.  That  case 
may  be  perfectly  correct ,  but  it  does  not  decide  that,  if  the  bought 
and  sold  notes  disagree,  or  there  be  a  memorandum  in  the  book  made 
according  to  the  intention  of  the  parties,  that  memorandum  signed 
by  the  broker  would  not  be  good  evidence  to  satisfy  the  Statute  of 
Frauds.   .  .  . 

Lord  Abixgeu,  C.  B.  I  have  purposely  avoided  giving  any  opinion 
about  the  question  of  the  bought  and  sold  notes,  but  I  desire  it  to  be 
understood  that  I  adhere  to  the  opinion  given  by  me,  that  when  the 
bought  and  sold  notes  differ  materially  from  each  other  there  is  no  con- 
tract, unless  it  be  shown  that  the  broker's  book  was  known  to  the 
parties.  .  .  .  Ride  absolute.1 

1  I.  <>.,  for  a  new  trial,  upon  the  ground  that  there  was  some  evidence  that  the  tal- 
low  had  been  delivered  to  the  defendant  and  the  statute  satisfied  in  that  mode.  As 
that  question  turned  entirely  upon  special  facts,  raising  no  point  of  law  and  possessing 
m>  general  interest,  so  much  of  the  case  as  relates  to  it  has  heen  omitted. 


SECT.  VII.]  6IEVEWEIGHT   V.    ARCHIBALD.  899 


SIEVEWRIGHT  v.  ARCHIBALD. 
In  the  Queen's  Bench,  June  17,  1851. 

[Reported  in  17  Queen's  Bench  Reports,  103.] 

In  this  term  (June  17th),  the  court  being  divided  in  opinion,  the 
learned  judges  delivered  separate  judgments. 

Erle,  J.  In  this  case  it  appeared  by  the  evidence  of  the  broker  at 
the  trial  that  he  agreed  with  the  defendant  to  sell  to  him  500  tons  of 
Dnnlop's  iron  ;  that  Dunlop's  iron  was  Scotch  ;  that  he  delivered  to  the 
defendant  a  bought  note  in  which  the  thing  bought  was  named  Scotch 
iron,  and  to  the  plaintiff  a  sold  note  in  which  the  thing  sold  was  named 
Dunlop's  iron  :  and  it  further  appeared  that  the  defendant  had  repeat- 
edly admitted  the  existence  of  some  contract  by  requesting  the  plaintiff 
to  release  him  therefrom  upon  terms. 

The  plaintiff  had  declared  for  not  accepting  Dunlop's  iron  ;  but  on  the 
defendant  producing  the  bought  note  so  that  it  was  in  evidence,  and 
objecting  that  there  was  no  contract  because  the  bought  and  sold  notes 
varied,  the  plaintiff  then  contended  that  the  defendant  had  ratified  the 
contract  expressed  in  the  bought  note  sent  to  the  defendant.  The  de- 
claration was  then  amended  to  agree  with  the  bought  note  ;  and  the  jury 
found  their  verdict  for  the  plaintiff,  and  that  the  defendant  had  ratified 
the  contract  alleged  in  the  amended  declaration.  I  take  this  to  be  the 
substance  of  the  evidence,  as  stated  more  fully  in  the  judgment  of  the 
Lord  Chief  Justice.  The  defendant  obtained  a  rule  to  set  aside  this  ver- 
dict for  the  plaintiff,  and  enter  it  for  the  defendant,  on  two  grounds: 
First,  he  contended  that,  in  cases  where  a  contract  has  been  made  by  a 
broker  and  bought  and  sold  notes  have  been  delivered,  they  alone  con- 
stitute the  contract ;  that  all  other  evidence  of  the  contract  is  excluded  ; 
and  that  if  they  vary  a  contract  is  disproved  ;  and  that  the  notes  now 
in  question  did  vary  :  and.  secondly,  he  contended  that,  if  evidence  was 
in  such  cases  admissible,  there  was  no  evidence  here  to  go  to  the  jury 
to  prove  the  ratification  of  the  contract  alleged  in  the  amended  declara- 
tion. But  after  considering  the  argument,  it  appears  to  me  that  he  has 
failed  to  establish  either  ground. 

With  respect  to  the  first  ground.  T  would  observe  that  the  question  of 
the  effect  either  of  an  entry  in  a  broker's  book  signed  by  him,  or  of  the 
acceptance  of  bought  and  sold  notes  which  agree,  is  not  touched  by  the 
present  case.  I  assume  that  sufficient  parol  evidence  of  a  contract  in 
the  terms  of  the  bought  note  delivered  to  the  defendant  has  been  ten- 
dered, and  that  the  point  is,  Whether  such  evidence  is  inadmissible  be- 
cause a  sold  note  was  delivered  to  the  plaintiff?  in  other  words.  Whether 
bought  and  sold  notes,  without  other  evidence  of  intention,  are  by  pre- 
sumption of  law  a  contract  in  writing?  I  think  they  are  not.  If  bought 
and  sold  notes  which  agree  are  delivered  and  accepted  without  objection, 
such  acceptance  without  objection   is  evidence  for  the  jury  of  mutual 


900  SIEVEWRIGHT   V.    ARCHIBALD.  [CHAP.  VI. 

i 

assent  to  the  terms  of  the  notes  ;  bnt  the  assent  is  to  be  inferred  by  the 
jury  from  their  acceptance  of  the  notes  without  objection,  not  from  the 
signature  to  the  writing,  which  would  be  the  proof  if  they  constituted  a 
contract  in  writing.  This  seems  to  me  to  be  the  effect  of  the  evidence 
of  mercantile  usage  relating  to  bought  and  sold  notes  given  in  Hawes  v. 
Forster,  1  Moo.  &  Rob.  368,  372,  mentioned  below;  and  this  is  the 
ground  on  which  the  verdict  in  that  case  is  to  be  sustained,  according 
to  the  opinion  of  Parke,  B.,  expressed  in  Thornton  v.  Charles,  9  M.  & 
"VV.  802.  The  form  of  the  instruments  is  strong  to  show  that  they  are 
not  intended  to  constitute  a  contract  in  writing,  but  to  give  information 
from  the  agent  to  the  principal  of  that  which  has  been  done  on  his  be- 
half: the  buyer  is  informed  of  his  purchase,  the  seller  of  his  sale  ;  and 
experience  shows  that  they  are  varied  as  mercantile  convenience  may 
dictate.  Both  may  be  sent,  or  one,  or  neither  ;  they  may  both  be  signed 
by  the  broker,  or  one  by  him  and  the  other  by  the  party  :  the  names  of 
both  contractors  may  be  mentioned,  or  one  may  be  named  and  the  other 
described  ;  they  may  be  sent  at  the  time  of  the  contract  or  after,  or  one 
at  an  interval  after  the  other.  No  person  acquainted  with  legal  conse- 
quences would  intend  to  make  a  written  contract  depend  on  separate 
instruments,  sent  at  separate  times  in  various  forms,  neither  party  hav- 
ing seen  both  instruments  :  such  a  process  is  contrary  to  the  nature  of 
contracting,  of  which  the  essence  is  interchange  of  consent  at  a  certain 
time.  The  governing  principle  in  respect  of  contracts  is  to  give  effect 
to  the  intention  of  the  parties  ;  and  where  the  intention  to  contract  is 
clear,  it  seems  contrary  to  that  principle  to  defeat  it  because  bought  and 
sold  notes  have  been  delivered  which  disagree.  They  are  then  held  to 
constitute  the  contract  only  for  the  purpose  of  annulling  it. 

It  seems  to  me  therefore  that,  upon  principle,  the  mere  delivery  of 
bought  and  sold  notes  does  not  prove  an  intention  to  contract  in  wi-iting, 
and  does  not  exclude  other  evidence  of  the  contract,  in  case  they  disagree. 
Before  examining  the  authorities  on  which  this  proposition  is  supposed 
to  be  founded,  I  would  draw  attention  to  the  distinction  between  evi- 
dence of  a  contract  and  evidence  of  a  compliance  with  the  Statute  of 
Frauds.  The  question  of  compliance  with  the  statute  does  not  arise 
until  the  contract  is  in  proof.  In  case  of  a  written  contract  the  statute 
has  no  application.  In  case  of  other  contracts  the  compliance  may  be 
proved  by  part  payment,  or  part  delivery,  or  memorandum  in  willing 
of  the  bargain.  Where  a  memorandum  in  writing  is  to  be  proved  as  a 
compliance  with  the  statute,  it  differs  from  a  contract  in  writing  in  that 
it  may  be  made  at  any  time  after  the  contract,  if  before  the  action  com- 
menced ;  and  any  number  of  memoranda  may  be  made,  all  being  equally 
originals  ;  and  it  is  sufficient  if  signed  by  one  of  the  parties  only  or  his 
agent,  and  if  the  terms  of  the  bargain  can  lie  collected  from  it,  although 
it  be  no1  expressed  in  the  usual  form  of  an  agreement.  Egerton  v. 
Mathews,  0  East,  307. 

I  now  advert  to  the  authorities  usually  cited  on  this  point.  In  Thorn- 
ton v.  Kempster,  5  Taunt.  786,  the  bought  and  sold  notes  could  not  be 


SECT.  VII.]  SIEVEWRJGHT    V.    ARCHIBALD.  901 

reconciled,  and  no  oilier  evidence  appears  to  have  been  offered  of  the 
contract,  and  the  plaintiff  did  not  adopt  the  note  delivered  to  the  de- 
fendant;  and  he  was  nonsuited.  As  the  case  stands  in  the  reports, 
there  was  no  evidence  of  mutual  assent  to  the  contract  alleged  by  the 
plaintiff.  The  point  was  not  raised  whether  other  evidence  of  the  con- 
tract was  admissible.  In  Gumming  v.  Roebuck,  Holt,  N.  P.  C.  172,  the 
statement  is  that  the  bought  and  sold  notes  varied;  and  Gibbs,  C.  J., 
is  reported  to  have  ruled  that,  if  the  broker  delivers  a  different  note  of 
the  contract  to  each  party  contracting,  there  is  no  valid  contract ;  and 
he  nonsuited  the  plaintiff.  In  this  case  also  it  does  not  appear  that  any 
other  evidence  of  the  contract  besides  the  notes  was  offered  ;  and  if  not, 
this  ruling  is  in  the  same  way  irrelevant  to  the  present  question.  The 
learned  judge  is  reported  to  have  added  that  a  case  which  states  the 
entry  in  the  broker's  book  to  be  the  original  contract  has  been  since 
contradicted.  The  facts  in  relation  to  which  this  opinion  was  expressed 
are  not  given:  if  it  was  intended  to  be  unqualified,  there  is  authority 
and  principle  against  it.  In  Heymnn  /•.  Neale,  2  Campb.  337,  an  entry 
was  made  in  the  broker's  book,  and  bought  and  sold  notes  were  deliv- 
ered ;  and  the  defendant  returned  the  bought  note,  and  contended  that 
there  was  no  contract  till  the  note  delivered  was  assented  to.  Lord 
Ellenborough  held  that  neither  party  could  recede  from  a  contract  after 
it  was  entered  in  the  book,  that  the  bought  and  sold  note  is  not  sent  on 
approbation,  nor  does  it  constitute  the  contract :  it  is  only  a  copy  of 
the  entry,  which  would  be  valid  although  no  bought  or  sold  note  was 
sent.  In  Grant  v.  Fletcher,  5  B.  &  C.  436,  the  plaintiff  proved  a  verbal 
contract  of  purchase  by  the  broker,  and  to  comply  with  the  statute  gave 
in  evidence  an  unsigned  entry  in  the  broker's  book  and  imperfect  bought 
and  sold  notes  ;  and  a  nonsuit  was  supported,  because  these  imperfect 
instruments  did  not  constitute  a  sufficient  memorandum  in  writing  of  the 
bargain.  In  the  judgment  it  is  stated  that  the  entry  in  the  broker's  book  is 
the  original,  and  the  bought  and  sold  notes  ought  to  be  copies  of  it,  and 
that  a  valid  contract  may  probably  be  made  by  perfect  notes  signed  by 
the  broker  and  delivered  to  the  parties,  although  the  book  be  not  signed  : 
the  court  therefore  was  far  from  holding  the  notes,  if  delivered,  to  be  the 
sole  evidence  of  the  contract.  In  Goom  v.  Aflalo,  6  B.  &  C.  117,  the 
broker  had  made  an  unsigned  entry  in  his  book,  and  had  delivered  to 
the  parties  signed  bought  and  sold  notes  :  it  was  objected  that  the  entry 
in  the  book  was  the  original,  and  that  therefore  the  notes  were  inadmis- 
sible ;  and  this  objection  was  only  overruled  after  argument  on  a  special 
case.  The  court  therefore  was  still  far  from  recognizing  the  doctrine 
that  bought  and  sold  notes  are  the  contract  itself.  In  Thornton  y. 
Meux,  M.  &  M.  43,  Abbott,  C.  J.,  states  that  he  used  to  think  the  bro- 
ker's book  the  proper  evidence  of  the  contract ;  but  he  afterwards  changed 
his  opinion,  and  held,  conformably  with  the  rest  of  the  court,  that  the 
copies  delivered  to  the  parties  were  the  evidence  of  the  contract  they 
had  entered  into.  It  is  obvious  that  this  ruling  does  not  follow  from 
the  judgments  that  had  lately  preceded  it:  it  avows  a  late  change  of 


902  SIEVEWRIGIIT   V.    ARCHIBALD.  [CHAP.  VI. 

opinion  ;  it  was  not  acted  on  in  the  case  so  as  to  nonsuit  the  plaintiffs 
thereon,  but  the  trial  proceeded,  and  the  plaintiffs  were  nonsuited  on 
another  ground  ;  and  therefore  there  was  no  opportunity  to  review  the 
ruling  in  banc  ;  and  both  the  last  cases  are  expressed  as  if  a  contract 
in  writing  was  necessary  for  a  contract  of  sale  of  chattels.  In  Hawes  v. 
Forster,  supra,  the  contract  as  stated  in  the  bought  and  sold  notes  va- 
ried from  the  contract  as  stated  in  the  broker's  book.  On  the  first  trial 
the  plaintiff's  note  only  was  in  evidence,  and  the  broker's  book  was  ex- 
cluded. On  the  second  trial  the  plaintiffs  relied  on  both  the  notes,  with 
the  evidence  of  some  merchants  stating  that  they  always  looked  to  the 
bought  and  sold  notes  as  the  contract,  and  that  if  the  note  was  not  con- 
sonant to  their  direction  to  the  broker  they  returned  it ;  the  defendants 
relied  on  the  entry  in  the  broker's  book  :  the  jury  were  directed  to  find 
for  the  plaintiffs  if  the  bought  and  sold  notes  in  their  opinion  constituted 
the  contract ;  and  they  found  for  the  plaintiffs.  This  case  ought  not  to 
be  taken  to  establish  the  general  proposition  of  law,  that  the  notes  in 
all  cases  constitute  the  contract.  The  verdict  may  well  be  supported 
upon  the  facts  of  the  case,  as  the  acceptance  of  the  notes  without  objec- 
tion was  evidence  for  the  jury  of  mutual  assent  to  a  contract  upon  the 
terms  expressed  in  those  writings,  which  agreed.  This  view  is  explained 
by  Parke,  B.,  in  Thornton  v.  Charles,  9  M.  &  W.  804,  807,  where  he  says, 
speaking  of  Hawes  y.  Forster  :  "  The  jury  found  that  the  bought  and  sold 
notes  were  evidence  of  the  contract,  but  on  the  ground  that  those  docu- 
ments, having  been  delivered  to  each  of  the  parties  after  signing  the 
entry  in  the  book,  constituted  evidence  of  a  new  contract  made  between 
the  parties  on  the  footing  of  those  notes.  That  case  may  be  perfectly  cor- 
rect ;  but  it  does  not  decide  that,  if  the  bought  and  sold  notes  disagree, 
or  there  be  a  memorandum  in  the  book  made  according  to  the  intention 
of  the  parties,  that  memorandum  signed  by  the  broker  would  not  be  good 
evidence  to  satisfy  the  Statute  of  Frauds."  The  same  learned  judge  ex- 
presses himself  to  the  same  effect  in  Pitts  v.  Beckett,  13  M.  &  W.  743. 
It  is  clear  also  that,  if  according  to  the  opinion  of  the  witnesses  there  is 
a  right  to  return  the  note  if  contrary  to  instructions,  the  keeping  of  the 
note  makes  it  binding,  and  not  the  signature. 

These  are  the  principal  authorities  cited  by  Mr.  Smith  on  Mercantile 
Law  (Smith,  Merc.  L.  452,  4th  ed.)  in  support  of  the  principle  now  dis- 
cussed ;  and  from  this  review  I  gather  that  in  the  greater  number  of  the 
cases  the  doctrine  that  bought  and  sold  notes  are  the  sole  evidence  of 
the  contract  is  not  recognized,  nor  was  the  point  decided  that  other  evi- 
dence of  the  contract  and  of  a  compliance  with  the  statute  is  inadmissi- 
ble if  bought  and  sold  notes  have  been  delivered  which  disagree.  And 
if  the  principle  is  not  established  by  direct  authority,  the  manifest  evil 
resulting  from  it  is  a  strong  ground  for  believing  that  it  is  not  founded 
on  law. 

Then,  if  other  evidence  of  the  contract  and  of  a  compliance  with  the 
statute  was  admissible,  the  second  question  raised  by  the  defendanl  re- 
mains to  be  considered,  namely,  whether  there  was  sufficient  evidence 


SECT.  VII.]  SIEVEWRIGHT   V.    ARCHIBALD.  903 

to  sustain  the  verdict  for  the  plaintiff.  Upon  this  point  I  think  the  jurv 
were  warranted  in  inferring  that  the  substance  of  the  contract  was  as 
alleged  in  the  amended  declaration  and  as  stated  in  the  defendant's  note. 
The  broker  who  made  the  contract  appears  to  have  so  understood  it.  as 
he  m>  expressed  it  at  the  time:  the  defendant  with  whom  he  made  it 
probably  so  understood  it,  as  he  kept  the  note  in  that  form  without  ob- 
jection, and  treated  for  a  compromise  on  the  assumption  that  he  was 
hound  thereby,  and  produced  it  at  the  trial  as  the  contract.  The  plain- 
till'  might  well  so  understand  it ;  for  as  Dunlop's  iron  was  a  Scotch  iron, 
the  article  which  he  intended  to  deliver  was  the  article  which  the  defend- 
ant intended  to  buy.  There  is  no  evidence  that  Scotch  iron  made  by 
Dunlop  was  better  than  any  other  Scotch  iron  ;  on  the  contrary,  it  is 
probable  from  the  conduct  of  the  parties  that  the  mention  of  Dunlop's 
name  was  an  immaterial  accident,  not  affecting  the  substance  of  the  bar- 
gain. As  in  the  case  of  the  purchase  of  wheat  or  other  article  of  usual 
supply  by  its  known  denomination,  if  the  dock  where  it  was  stored  or 
the  ship  in  which  it  was  brought  was  mentioned  in  one  note  and  omitted 
in  another,  the  omission  of  the  place  would,  I  presume,  be  held  immate- 
rial ;  so  the  omission  of  the  manufacturer  of  Scotch  iron  in  the  defend- 
ant's note  ought  to  be  held  immaterial  if  the  subject  of  his  purchase  was 
intended  to  be  Scotch  iron  ;  and  his  conduct  is  good  evidence  of  such 
intention.  If  the  evidence  was  that  the  defendant  had  proposed  to  buy 
Scotch  iron,  and  that  the  plaintiff  had  proposed  to  sell  him  the  article 
he  wanted,  namely.  Dunlop's,  and  the  defendant  had  described  his  con- 
tract to  be  a  purchase  of  Scotch  iron  in  a  memorandum  made  at  the 
time,  the  jury  would  infer  that  Scotch  iron  was  of  the  substance  of  the 
contract.  The  evidence  now  in  the  case  appears  to  me  to  warrant 
the  same  conclusion.  If  the  substance  of  the  contract  was  as  alleged 
in  the  defendant's  note,  that  note  alone  would  be  a  sufficient  memoran- 
dum of  the  bargain  signed  by  an  agent  within  the  statute.  The  note 
delivered  to  the  defendant  was  held  sufficient  by  Lord  Kenvon  in  Rucker 
r.  Cammeyer,  1  Esp.  N.  P.  C  105:  one  note  only  was  offered  in  evi- 
dence by  the  plaintiffs  in  Powell  v.  Divett,  15  Past.  2!).  and  no  objection 
was  made  on  that  account;  one  note  alone  was  held  by  Lord  Denman 
to  be  sufficient  in  Hawes  v.  Forster,  supra;  one  note  signed  by  the  de- 
fendant was  held  sufficient  in  Rowe  r.  Osborne,  1  Stark.  X.  P.  C.  140, 
though  it  varied  from  the  note  signed  by  the  plaintiff's  broker  which  had 
been  sent  to  the  defendant.  Rut  it  is  not  necessary  to  discuss  whether 
one  note  alone  would  be  a  sufficient  memorandum  :  for,  if  the  substance 
of  the  contract  was  as  is  alleged,  the  notes  did  not  substantially  varv. 
As  it  was  held  in  Bold  v.  Rayner,  1  M.  &  W.  343  ;  s.  c.  Tyr.  &  G.  820, 
that  several  apparent  differences  in  the  terms  of  bought  and  sold  notes 
might  be  reconciled  by  evidence  of  mercantile  usage  in  respect  to  those 
terms,  so  where  two  descriptions  are  used  in  those  instruments,  of  that 
which  in  the  intention  of  the  parties  may  be  the  same  article.  I  think 
the  apparent  discrepancy  may  be  removed  by  evidence  of  such  intention  ; 
and  that  if  both  notes  were  essential  to  the  plaintiff's  case,  both  may  be 


904  SIEVEWRIGHT  V.   ARCHIBALD.  [CHAP.  VI. 

reconciled  upon  this  evidence  and  held  valid,  the}T  not  being  inconsistent, 
as  was  the  case  in  Thornton  v.  Kempster,  supra. 

If  it  is  further  objected  for  the  defendant  that  the  question  of  ratifica- 
tion was  left  to  the  jury  instead  of  asking  them  what  was  the  substance 
of  the  contract,  it  appears  to  me  that  the  jury  intended  to  find  that  the 
contract  was  as  alleged  in  the  declaration  and  expressed  in  the  bought 
note  ;  but  if  not,  this  objection  would  not  warrant  the  entry  of  a  verdict 
for  the  defendant,  which  is  the  present  rule  :  if  the  point  can  be  resorted 
to  at  all,  it  goes  to  a  new  trial  only.  For  these  reasons  my  opinion  is 
against  the  defendant  on  this  second  ground  also ;  and  I  think  his  rule 
ought  to  be  discharged. 

Fatteson,  J.,  after  stating  that  it  was  unnecessaiy  to  recapitulate 
the  facts,  as  he  adopted  the  full  statement  in  the  judgment  of  Lord 
Campbell,  C.  J.,  proceeded  as  follows  :  — 

The  Statute  of  Frauds  requires  that  some  note  or  memorandum  in 
writing  of  the  bargain  be  made  and  signed  by  the  parties  to  be  charged 
by  such  contract,  or  their  agents  thereunto  lawfully  authorized.  The 
question  is,  Whether  in  this  case  there  was  any  such  note  or  memoran- 
dum in  writing  signed  by  the  defendant  or  his  agent?  If  there  was,  I 
take  it  to  be  clearly  immaterial  whether  there  was  any  such  note  or  mem- 
orandum signed  by  the  plaintiff  (see  Egerton  v.  Mathews,  supra,  where 
the  memorandum  was  signed  by  the  defendants  themselves,  not  by  a 
broker  or  agent,  and  none  was  signed  by  the  plaintiff,-  yet  it  was  held 
that  the  statute  was  satisfied)  ;  for  I  consider  that  the  memorandum 
need  not  be  the  contract  itself,  but  that  a  contract  may  be  made  without 
writing  ;  and  if  a  memorandum  in  writing  be  afterwards  made,  embody- 
ing that  contract,  and  be  signed  by  one  of  the  parties  or  his  agent,  he 
being  the  party  to  be  charged  thereb}',  the  statute  is  satisfied.  Still  it 
is  plain  that,  if  the  original  contract  was  itself  in  writing  signed  by  both 
parties,  that  would  be  the  binding  instrument,  and  no  subsequent  mem- 
orandum signed  b}T  one  party  could  have  any  effect.  In  this  case  the 
contract  was  made  by  a  broker  acting  for  both  parties  ;  but  such  con- 
tract was  not  in  writing  signed  by  him  or  them.  If  there  be  any  writ- 
ing to  satisfy  the  statute  it  must  be  some  subsequent  memorandum  in 
writing  signed  by  the  defendant  or  his  agent.  There  are  subsequent 
memoranda  in  writing  signed  b}r  the  broker,  namely,  the  bought  and 
sold  notes.  Which  of  these,  if  either,  is  the  memorandum  in  writing 
signed  by  the  defendant  or  his  agent?  The  bought  note  is  delivered  to 
the  buyer,  the  defendant ;  the  sold  note  to  the  seller,  the  plaintiff  ;  each 
of  them  in  the  language  used  purports  to  be  a  representation  by  the 
broker  to  the  person  to  whom  it  is  delivered  of  what  he,  tin;  broker,  has 
done  as  agent  for  that  person.  Surely  the  bought  note  delivered  to  the 
buyer  cannot  be  said  to  be  the  memorandum  of  the  contract  signed  by 
the  buyer's  agent  in  order  that  he  may  be  bound  thereby  ;  for  then  it 
would  have  been  delivered  to  the  seller,  and  not  to  the  buyer;  and  vice 
rersa,  as  to  the  sold  note.  Can  then  the  sold  note  delivered  to  the  seller 
be  treated  as  the  memorandum  signed  by  the  agent  of  the  buyer,  and 


SECT.  VII.]  SIEVEWKIGHT   V.    ARCHIBALD.  905 

binding  him,  the  buyer,  thereby  ?  The  very  language  of  it  shows  that  it 
cannot.  In  the  city  of  London,  where  this  contract  was  made,  the  bro- 
ker is  bound  to  enter  in  his  book  and  sign  all  contracts  made  by  him  ; 
and  if  the  broker  had  made  such  signed  entry  I  cannot  doubt,  notwith- 
standing the  cases  and  dicta  apparently  to  the  contrary,  that  such  mem- 
orandum would  be  the  binding  contract  on  both  parties.  In  the  case  of 
Ilawes  v.  Forster,  supra,  there  was  such  a  memorandum  signed  in  the 
broker's  book  :  there  were  also  bought  and  sold  notes  tallying  with  each 
other,  but  varying  from  the  book.  On  the  first  trial  of  that  case  Lord 
Denman  held  that  the  bought  note  produced  by  the  buyer  (the  plaintiff) 
was  sufficient,  and  was  the  proper  evidence  of  the  contract  and  not  the 
book,  and  that  no  notice  to  produce  the  sold  note  need  be  given  to  the 
defendant.  The  court  on  motion  granted  a  new  trial,  holding  that  this 
evidence  was  not  the  proper  evidence  of  the  contract,  unless  there  was 
a  custom  of  trade  in  London  that  the  bought  and  sold  notes,  and  not  the 
signed  broker's  book,  were  the  contract,  and  considering  that  such  cus- 
tom had  not  been  sufficiently  inquired  into.  The  case  is  so  explained 
by  Parke,  B.,  in  Thornton  v.  Charles,  supra,  and  again  in  Pitts  v.  Beckett, 
13  M.  &  W.  74G  ;  and  my  own  note  of  the  case  (I  having  been  a  member 
of  the  court  which  granted  the  new  trial)  is  in  entire  conformity  with 
that  explanation.  On  the  new  trial  the  jury  found  the  custom  that  the 
bought  and  sold  notes  constituted  the  contract,  and  not  the  broker's 
book  :  a  bill  of  exceptions  was  tendered  ;  but  the  defendant  did  not 
persist,  and  submitted  to  the  verdict.  Possibly,  if  he  had,  it  might  have 
been  held  that  the  bought  and  sold  notes  acquiesced  in  constituted  a 
new  contract ;  but  that  they  could  ever  be  treated  under  such  circum- 
stances as  the  original  contract  seems  to  me  impossible. 

However,  in  the  present  case  there  was  no  signed  memorandum  in 
the  broker's  book  :  therefore  the  bought  and  sold  notes  together,  or  one 
of  them  separately,  must  be  the  memorandum  in  writing  signed  by  the 
defendant's  agent,  or  there  is  none  at  all,  and  the  statute  will  not  be 
satisfied. 

If  the  bought  and  sold  notes  together  be  the  memorandum,  and  they 
differ  materially,  it  is  plain  that  there  is  no  memorandum  :  the  court 
cannot  possibly  say,  nor  can  a  jury  say,  which  of  them  is  to  prevail  over 
the  other  ;  read  together  they  are  inconsistent,  assuming  the  variance 
between  them  to  be  material ;  and  if  one  prevails  over  the  other,  that 
one  will  be  the  memorandum,  and  not  the  two  together. 

If  on  the  other  hand  one  only  of  these  notes  is  to  be  considered  as  the 
memorandum  in  writing  signed  by  the  defendant's  agent  and  binding 
the  defendant,  which  of  them  is  to  be  so  considered,  the  bought  note 
delivered  to  the  defendant  himself,  or  the  sold  note  delivered  to  the 
plaintiff?  I  have  already  stated  that  I  cannot  think  that  either  of  them 
by  itself  can  be  so  treated.  In  no  one  of  the  cases  has  the  court  or  a 
judge  at  nisi  prizes  held  that  it  could:  all  that  Lord  Denman  held  in 
Ilawes  v.  Forster,  supra,  on  the  first  trial,  was  that  proof  of  one  was 
sufficient  without  notice  to  produce  the  other,  thereby  holding  only  that 


906  SIEVEWRIGHT   V.    ARCHIBALD.  [CHAP.  VI. 

the  other  must  be  taken  to  correspond  with  that  produced  until  the  op- 
posite party  produced  the  other  and  showed  the  variance.  But  or  the 
second  trial  notice  to  produce  the  other  was  given,  and  it  was  produced, 
and  the  two  corresponded.  In  Goom  v.  Atlalo,  supra,  there  was  no 
variance  at  all ;  and  the  only  question  was,  whether,  as  there  was  an 
unsigned  memorandum  in  the  broker's  book,  the  bought  and  sold  notes 
could  be  treated  as  a  memorandum  ;  and  the  court  held  that  they  could. 
Ali  three  corresponded  in  that  case. 

If  this  were  res  Integra  I  am  strongly  disposed  to  say  that  I  should 
hold  the  bought  and  sold  notes  together  not  to  be  a  memorandum  to 
satisfy  the  Statute  of  Frauds  ;  but  I  consider  that  point  to  be  too  well 
settled  to  admit  of  discussion  ;  yet  there  is  no  case  in  which  they  have 
varied  in  which  the  court  has  upheld  the  contract ;  plainly  showing  that 
the  two  together  have  been  considered  to  be  the  memorandum  binding 
both  parties  :  the  reason  of  which  is  to  my  mind,  I  confess,  quite  unsat- 
isfactory ;  but  I  yield  to  authority. 

I  do  not  go  through  and  examine  all  the  cases  on  this  subject:  they 
are  collected  in  the  last  edition  of  Smith's  Mercantile  Law  by  Mr. 
Dowdeswell ;  and  they  show  that  it  has  invariably  been  held  that,  where 
the  bought  and  sold  notes  are  resorted  to  as  the  contract  or  as  the  mem- 
orandum of  the  contract,  and  they  vary  in  any  material  point,  there  is 
no  writing  to  satisfy  the  statute. 

It  seems  to  me  therefore  that  the  only  question  to  be  determined  in 
this  case  is,  Do  the  bought  and  sold  notes  differ  in  any  material  point? 
Now  the  one  is  "Dunlop's  Scotch  iron,"  the  other  "Scotch  iron"  gen- 
erally :  the  one  would  be  complied  with  by  delivery  of  Scotch  iron  of 
any  person's  manufacture,  possibly  greatly  inferior  to  that  of  Messrs. 
Dunlop  ;  the  other  ties  the  parties  down  to  Dunlop's  ;  possibly  again 
that  may  be  inferior  to  some  other  Scotch  iron.  How  is  it  possible  to 
read  the  two  notes  together  and  say  that  they  mean  the  same  thing,  or 
to  say  that  if  you  incorporate  the  one  note  with  the  other  that  which 
specifies  Dunlop's  iron  will  not  immediately  prevail  over  that  which 
does  not?  I  cannot  but  think  that  the}'  are  as  much  at  variance  as  the 
bought  and  sold  notes  in  Thornton  v.  Kempstcr,  supra,  where  the  one 
was  ••  Riga"  and  the  other  "Petersburg"  hemp,  and  where  the  Court  of 
Common  Pleas  held  there  was  no  contract,  independent  even  of  the 
Statute  of  Frauds.  The  broker  indeed  stated  in  his  evidence  that  he 
made  the  original  contract  verbally  for  Dunlop's  Scotch  iron  ;  but  how 
can  that  evidence  make  the  bought  note,  delivered  to  the  defendant  for 
Scotch  iron  generally,  to  be  a  memorandum  signed  by  the  defendant's 
agent  binding  the  defendant?  The  question  is,  not  whether  either  of 
the  notes  corresponds  with  the  contract  originally  made  by  word  of 
mouth,  but  whether  either  of  the  notes  separately,  per  se,  be  a  signed 
memorandum  binding  upon  either  party.  Upon  the  whole  therefore, 
however  much  I  ma}'  regret  that  such  an  objection  should  prevail,  I 
feel  bound  to  say  that  in  my  opinion  there  was  no  evidence  in  this  case 
of  anv  contract  binding  on  the  defendant. 


SECT.  VII.]  SIEVEWBIGHT   V.    ARCHIBALD.  907 

Lord  Campbell,  C.  J.  I  regret  to  say  that  the  view  which  I  take 
of  the  law  in  this  case  compels  me  to  come  to  the  conclusion  that  the 
defendant  is  entitled  to  our  judgment,  although  the  merits  are  entirely 
against  him;  although,  believing  that  he  had  broken  his  contract,  he 
could  only  have  defended  the  action  in  the  hope  ot  mitigating  the  dam- 
ages ;  and  although  he  was  not  aware  of  the  objection  on  which  he  now 
relies  till  within  a  few  days  before  the  trial.  But  it  appeal's  to  me  that 
we  cannot  refuse  giving  effect  to  this  objection  without  disregarding  the 
Statute  of  Frauds,  without  overturning  decided  cases,  and  without  dan- 
ger of  introducing  uncertainty  ami  confusion  into  the  rules  for  enforcing 
mercantile  contracts  of  buying  and  selling. 

The  plaintiff  in  his  declaration  set  out  the  following  written  document, 
stated  to  be  a  "  sold  note  "  of  certain  goods  agreed  to  be  purchased  from 
him  by  the  defendant:  — 

26  Lombard  Street,  London,  February  26,  1849 

Sold  Charles  Dickson  Archibald,  Esq.,  48  Upper  Harley  Street,  for 
Messrs.  Sieve wright,  Watson,  &  Co.,  Glasgow,  500  tons  Messrs.  Dunlop, 
Wilson,  &  Co.'s  pig-iron,  three-fifths  No.  1  and  two-fifths  No.  3,  at  52s. 
per  ton,  free  on  board  at  Troon.  Payment,  cash  within  one  month  from 
this  date  against  orders  of  delivery. 

This  professed  to  be  signed  by  "Win.  Richardson,  broker." 
The  declaration  in  the  usual  form  averred  that  the  iron  was  duly  ten- 
dered to  the  defendant,  but  that  he  refused  to  accept  or  to  pay  for  it.  The 
onlv  material  plea  was  non  assumpsit.  William  Miller  being  called  as 
a  witness  swore  as  follows  :  "  I  am  a  metal  broker  in  the  city  :  plaintiff 
carries  on  business  at  Glasgow  under  the  firm  of  Sievewright,  Watson, 
&  Co.  I  received  instructions  from  him  to  sell  500  tons  of  Dunlop, 
Wilson,  &  Co.'s  pig-iron.  I  sold  it  to  the  defendant.  I  saw  the  defend- 
ant in  London  :  he  gave  me  a  verbal  authority  to  make  the  purchase  for 
him.  I  agreed  with  him  that  he  was  to  be  the  purchaser  of  500  tons  of 
Dunlop,  Wilson,  &  Co.'s  iron.  The  name  of  Sievewright,  Watson.  & 
Co.  was  mentioned  as  the  sellers.  On  the  2Gth  of  February  I  wrote  a 
contract,  and  sent  it  to  the  defendant  in  a  letter."  (The  bought  note 
being  called  for,  it  was  produced  by  the  defendant ;  and  it  corresponded 
with  the  sold  note  set  out  in  the  declaration,  except  that,  instead  of 
"500  tons  Messrs.  Dunlop,  Wilson,  &  Co.'s  pig-iron."  it  stated  -500 
tons  of  Scotch  pig-iron."  The  bought  note  being  read,  the  witness  con- 
tinued.) "This  was  enclosed  in  a  letter  of  26th  February,  and  sent  to 
the  defendant  in  Upper  Harley  Street.  I  sent  to  the  plaintiff  the  same 
day  a  sold  note"  (a  copy  of  it  was  admitted  and  road  as  set  out  in  the 
declaration).  " Dunlop,  Wilson,  &  Co.  are  manufacturers  of  iron  in 
Scotland  ;  and   their  iron   is  Scotch  iron." 

The  defendant's  counsel  insisted  that  there  was  no  binding  contract 
between  the  parties,  there  being  a  material  variance  between  the  bought 
and  sold  notes;  for  according  to  the  bought  note  the  seller  would  per- 
form his  obligation  by  tendering  500  tons  of  pig-iron  made  by  any  man- 


908  SIEVEWRIGHT    V.    ARCHIBALD.  [CHAP.  VI. 

nfaeturer  in  any  part  of  Scotland,  whereas  by  the  sold  note  the  buyer 
might  demand  500  tons  of  pig-iron  made  by  Dunlop,  Wilson,  &  Co., 
which  might  be  of  a  peculiarly  good  quality  and  of  superior  reputation 
in  the  market.  1  intimated  an  opinion  that  the  variance  was  material, 
and  that  as  there  was  no  entry  in  the  broker's  book  signed  by  him,  and 
the  plaintiff  had  proposed  to  prove  the  contract  by  the  bought  and  sold 
notes,  the  variance  was  fatal.  The  plaintiff's  counsel  then  said  that  he 
had  clear  evidence  to  prove  that  the  defendant  had  subsequently  ratified 
the  contract ;  and  objection  being  made  that  he  could  not  have  ratified 
the  contract  as  set  out  in  the  declaration,  I  permitted  the  declaration  to 
be  amended  according  to  the  terms  of  the  bought  note. 

Miller  the  broker  being  recalled,  after  stating  that  he  had  the  delivery 
orders  for  the  500  tons  of  iron  ready  to  be  handed  over  to  the  defend- 
ant on  the  26th  of  March,  said  :  "I  saw  the  defendant  about  the  end  of 
March.  On  the  4th  of  April  he  agreed  that  1  should  propose  to  the 
plaintiff  to  take  a  bill  at  four  months,  and  the  delivery  orders  to  be 
lodged  as  a  security  at  the  Union  Hank.  The  price  of  iron  had  then 
fallen  hs.  a  ton.  Before  the  29th  of  March  the  defendant  had  given  me 
unlimited  authority  to  get  the  transaction  settled  as  I  thought  fit." 

There  were  read  a  letter  from  the  defendant  to  Richardson  of  5th 
April,  saying,  "You  must  manage  the  iron  speculation  as  you  think 
fit ; "  a  letter  written  by  Richardson  to  the  plaintiff,  saying  that  "  Mr. 
Archibald  agreed  to  give  a  bill  at  four  months  ;  "  the  plaintiff's  answer, 
refusing  to  take  a  bill  at  four  months,  but  offering  to  take  one  at  three 
months  ;  another  letter  written  about  the  same  time  by  the  defendant  to 
Richardson,  saying,  "  I  hope  you  will  conduct  it  to  a  successful  issue  ;  " 
and  further  letters  between  the  parties,  continuing  the  negotiation  till 
27th  October,  1849,  when  the  defendant  denied  his  liability.  I  left  the 
question  to  the  jury,  Whether  the  defendant  had  ratified  the  contract 
sent  to  him,  contained  in  the  bought  note  ?  The  jury  found  that  he  had  ; 
whereupon  a  verdict  was  entered  for  the  plaintiff  for  £125  damages, 
with  liberty  for  the  defendant  to  move  to  enter  the  verdict  for  him  if 
the  court  should  be  of  opinion  that  there  was  not  evidence  to  prove  the 
declaration  as  amended. 

Having  heard  the  rule  obtained  for  this  purpose  learnedly  argued,  I 
do  not  think  that  there  was  any  sufficient  evidence  of  ratification.  Noth- 
ing having  such  a  tendency  was  done  by  the  defendant  before  the  26th 
of  March,  the  day  on  which  he  ought  to  have  performed  the  contract 
and  on  which  he  broke  it.  What  constituted  the  ratification?  And 
what  date  is  to  be  given  to  it?  There  never  was  any  reference  by  the 
defendant  to  the  terms  of  the  bought  note  more  than  of  the  sold  note. 
The  variance  between  them  was  not  known  to  him  till  after  the  action 
was  brought.  Nor  was  there  ever  any  assent  by  the  plaintiff  to  accede 
\<>  the  terms  of  the  bought  note,  whereby  he  would  have  become  bound 
to  deliver  Dunlop.  Wilson,  &  Co.'s  pig-iron.  The  sold  note  containing 
differenl  terms,  instead  of  being  discarded  by  the  plaintiff,  was  actually 
declared  on  bj  him,  and  was  set  up  by  him  as  the  true  contract  till  the 


SECT.  VII.]  BIEVEWKIGHT   V.    ARCHIBALD.  909 

declaration  was  amended.  The  plaintiff  likewise  sought  to  recover  under 
a  count  for  goods  bargained  and  sold  :  but  this  could  not  avail  him  ;  for 
the  defendant  never  accepted  the  goods;  and  the  contract  was  not  for 
the  sale  of  any  specific  goods,  the  property  in  which  could  be  considered 
as  transferred  to  him.  Recurring  to  the  special  count,  the  plaintiff  at- 
tempted to  support  it  by  the  parol  agreement  alleged  to  have  been  entered 
into  between  the  broker  and  the  defendant,  using  the  bought  note  as  a 
memorandum  of  the  agreement  to  satisfy  the  Statute  of  Frauds. 

In  the  first  place  there  seems  a  difficulty  in  setting  up  any  parol  agree- 
ment whore  the  parties  intended  that  there  should  be  and  understood 
that  there  was  a  written  agreement :  what  passed  between  the  defendant 
and  the  broker  previous  to  the  26th  of  February  seems  to  me  only  to 
amount  to  an  authority  from  the  defendant  to  the  broker  to  enter  into 
the  contract;  and  Miller  himself  says:  "On  the  2Gth  of  February  I 
wrote  a  contract  and  sent  it  to  the  defendant.  I  sent  a  sold  note  the 
same  day  to  the  plaintiff."  Again,  the  memorandum  under  the  17th 
section  of  the  Statute  of  Frauds  must  be  signed  by  the  party  to  be 
charged  or  his  agent.  But  assuming  that  the  parol  agreement  was  the 
contract,  and  that  when  Miller  wrote  the  bought  note  it  was  only  to  tell 
his  principal  what  he  had  done,  there  is  a  difficulty  in  saying  that,  being 
functus  officio  as  far  as  making  the  bargain  was  concerned,  he  had  any 
authority  to  sign  the  memorandum  as  the  defendant's  agent,  and  thereby 
to  charge  him.  But  if  he  had,  can  this  be  said  to  be  a  true  memoran- 
dum of  the  agreement?  We  are  here  again  met  by  the  objection  of  the 
variance,  which  is  as  strong  between  the  parol  agreement  and  the  bought 
note  as  between  the  bought  note  and  the  sold  note.  If  the  bought  note 
can  be  considered  a  memorandum  of  the  parol  agreement,  so  may  the 
sold  note;  and  which  of  them  is  to  prevail?  It  seems  to  me  therefore 
that  we  get  back  to  the  same  point  at  which  we  were  when  the  variance 
was  first  objected  and  the  declaration  was  amended.  I  by  no  means  sav 
that  where  there  are  bought  and  sold  notes  they  must  necessarily  be  the 
only  evidence  of  the  contract:  circumstances  may  be  imagined  in  which 
they  might  be  used  as  a  memorandum  of  a  parol  agreement.  Where 
there  has  been  an  entry  of  the  contract  by  the  broker  in  his  book  signed 
by  him,  I  should  hold  without  hesitation,  notwithstanding  some  dicta 
and  a  supposed  ruling  of  Lord  Tenterden  in  Thornton  v.  Meux,  supra, 
to  the  contrary,  that  this  entry  is  the  binding  contract  between  the  par- 
ties, and  that  a  mistake  made  by  him,  when  sending  them  a  copy  of  it 
in  the  shape  of  a  bought  or  sold  note,  would  not  affect  its  validity. 
Being  authorized  by  the  one  to  sell  and  the  other  to  buy  in  the  terms  of 
the  contract,  when  he  has  reduced  it  into  writing  and  signed  it  as  their 
common  agent,  it  binds  them  both  according  to  the  Statute  of  Fraud-, 
as  if  both  had  signed  it  with  their  own  hands:  the  duty  of  the  broker 
requires  him  to  do  so;  and  till  recent  times  this  duty  was  scrupulously 
performed  by  every  broker.  What  are  called  the  bought  and  sold  notes 
were  sent  by  him  to  his  principals  by  way  of  information  that  he  had 
acted  upon  their  instructions,  but  not  as  the  actual  contract  which  was 


010  SIEVEWRIGHT   V.    ARCHIBALD.  [CHAP.  VI. 

to  be  binding  upon  them.  This  clearly  appears  from  the  practice  still 
followed  of  sending  the  bought  note  to  the  buyer  and  the  sold  note  to 
the  seller ;  whereas,  if  these  notes  had  been  meant  to  constitute  the 
contract,  the  bought  note  would  be  put  into  the  hands  of  the  seller,  and 
the  sold  note  into  the  hands  of  the  buyer,  that  each  might  have  the  en- 
gagement  of  the  other  party  and  not  his  own.  But  the  broker  to  save 
himself  trouble  now  omits  to  enter  and  sign  any  contract  in  his  book, 
and  still  sends  the  bought  and  sold  notes  as  before.  If  these  agree, 
they  are  held  to  constitute  a  binding  contract;  if  there  be  any  material 
variance  between  them,  they  are  both  nullities,  and  there  is  no  binding 
contract.  This  last  proposition,  though  combated  by  the  plaintiff's 
counsel,  has  been  laid  down  and  acted  upon  in  such  a  long  series  of  cases 
that  I  could  not  venture  to  contravene  it,  if  I  did  not  assent  to  it ;  bot 
where  there  is  no  evidence  of  the  contract  unless  by  the  bought  and  sold 
notes  sent  by  the  broker  to  the  parties,  I  do  not  see  how  there  can  be  a 
binding  contract  unless  they  substantially  agree  ;  for  contracting  parties 
must  consent  to  the  same  terms  ;  and  where  the  terms  in  the  two  notes 
differ  there  can  be  no  reason  why  faith  should  be  given  to  the  one  more 
than  the  other.  This  is  certainly  a  most  inconvenient  mode  of  carrying 
on  commercial  transactions  :  from  the  carelessness  of  brokers  and  their 
clerks  mistakes  not  un frequently  arise,  of  which  unconscientious  men 
take  advantage  ;  and  no  buyer  or  seller  can  be  safe  unless  he  sees  the 
sold  or  bought  note  as  well  as  his  own  ;  a  precaution  which  the  course 
of  business  does  not  permit  to  be  taken.  But  these  inconveniences  can 
only  he  remedied  by  the  Legislature  enforcing  upon  the  broker  the  faith- 
ful performance  of  his  duty  in  entering  and  signing  the  contract  in  his 
book. 

In  the  present  case,  there  being  a  material  variance  between  the 
bought  and  sold  note,  they  do  not  constitute  a  binding  contract :  there 
is  no  entry  in  the  broker's  book  signed  by  him  ;  and  if  there  were  a  parol 
agreement,  there  being  no  sufficient  memorandum  of  it  in  writing,  nor 
any  part  acceptance  or  part  pa3-ment,  the  Statute  of  Frauds  has  not 
been  complied  witli  ;  and  I  agree  with  my  brother  Patteson  in  thinking 
that  the  defendant  is  entitled  to  the  verdict. 

My  brothei-  Wightman,  who  heard  the  argument  but  is  now  engaged 
elsewhere  in  the  discharge  of  a  public  duty,  has  authorized  me  to  say 
that  he  has  read  this  judgment  and  that  he  entirely  concurs  in  it.  But 
the  court  being  divided,  instead  of  making  the  rule  absolute  to  enter  the 
verdict  for  the  defendant,  we  think  that  a  nonsoit  should  be  entered,  so 
that  the  plaintiff  may  have  the  opportunity  to  firing  a  fresh  action,  and 
by  a  special  verdict  or  a  bill  of  exceptions  to  take  the  opinion  of  a  court 
of  error  on  his  rights.  Rule  absolute  to  enter  a  nonsuit. 


SECT.  VII.]  BAILEY   V.    SWEETING.  911 


BAILEY   and    Another  v.  SWEETING. 
In  the  Common  Pleas,  January  12  and  17,  1861. 

[Reported  in  30  Law  Journal  Reports,  Common  Pleas,  150.1 

This  was  an  action  brought  to  recover  £76  14s.  3d.  for  goods  bar- 
gained and  sold.  The  defendant  paid  into  court  £38  3s.  9d.,  and 
pleaded  never  indebted  to  the  rest  of  the  claim.  The  cause  was  tried 
before  Erie,  C.  J.,  at  the  London  sittings  after  Easter  term,  1860. 
The  defendant,  a  furniture  dealer  at  Cheltenham,  being  at  the  plaintiffs' 
manufactory  in  London  in  July,  185'J,  bought  of  the  plaintiffs  four  old 
gilt  chimney-glasses  at  £28  10s.,  and  a  walnut  chimney-glass  at  £6  6s., 
to  be  paid  for  by  a  cheek  on  delivery  ;  and  also  on  the  same  occasion 
bought  of  the  plaintiffs  various  other  articles  (some  of  which  were  not 
then  ready,  but  had  to  be  made)  on  certain  credit  terms.  The  chimney- 
glasses  formed  the  first  parcel  of  such  goods  which  were  sent  to  the 
defendant  at  Cheltenham.  The  carrier,  however,  to  whom  this  parcel 
was  delivered  so  damaged  it  during  its  carriage  that  the  defendant 
refused  to  receive  it  when  it  arrived,  and  the  plaintiffs  were  at  once 
informed  of  such  refusal.  The  other  goods  winch  had  been  bought 
were  afterwards  sent  in  different  parcels  to  the  defendant,  and  were 
duly  received  by  him  ;  and  it  was  admitted  at  the  trial  that  the  value 
of  these  was  covered  by  the  amount  which  had  been  paid  into  court, 
and  the  only  question  was  as  to  the  defendant's  liability  in  respect  of 
the  first  parcel,  the  price  of  which,  with  the  cases  in  which  it  was 
packed,  amounted  to  £38  lO.s.  6d.  With  reference  to  the  Statute  of 
Frauds,  the  plaintiffs  contended  that  the  sale  of  all  the  articles  had  been 
under  one  contract,  and  that  there  had  been  therefore  a  part  accept- 
ance ;  and  they  also  relied  on  the  following  letter  from  the  defendant, 
written  in  answrer  to  one  from  the  plaintiffs  applying  for  payment,  as  a 
memorandum  satisfying  the  statute  :  — 

Cheltenham,  December  3,  1S59. 

Gentlemen,  —  In  reply  to  your  letter  of  the  1st  instant,  I  beg  to 
say  that  the  onh'  parcel  of  goods  selected  for  read}-  money  was  the 
chimney-glasses,  amounting  to  £38  10.5.  6d.,  which  goods  I  have  never 
received,  and  have  long  since  declined  to  have  for  reasons  made  known 
to  you  at  the  time;  with  regard  to  the  other  items,  viz..  ill  4s.  (Jd., 
£14  13s.,  and  £13  13s.,  for  goods  had  subsequently  (less  cases  re- 
turned), those  goods  are,  I  believe,  subject  to  the  usual  discount  of  i.'."> 
per  cent,  and  I  am  quite  ready  to  remit  you  cash  for  these  parcels  al 
once,  and  on  receipt  of  your  reply  to  this  letter  will  instruct  a  friend  to 
call  on  3-ou  and  settle  accordingly.  I  am  yours,  &c., 

Geo.  Sweeting. 

The  jury,  being  of  opinion  that  the  chimney-glasses  were  sold  under 
a  separate  contract  from  that  under  which  the  other  articles  were  sold, 


012  BAILEY   V.    SWEETING.  [CHAP.  YI. 

found  a  verdict  for  the  defendant;  leave  being  reserved  to  the  plain- 
tills  to  move  to  set  the  same  aside,  and  to  enter  a  verdict  for  them  for 
£38  10s.  <>(/.,  if  the  court  should  be  of  opinion  that  the  defendant's 
letter  of  the  3d  of  December  was  sufficient  to  satisfy  the  Statute  of 
Frauds. 

In  Trinity  term  last  Hawkins  obtained  a  rule  nisi  accordingly  to  set 
the  verdict  aside,  and  to  enter  it  for  the  plaintiffs  for  £38  10s.  6d.  pur- 
suant to  the  leave  reserved,  or  for  a  new  trial  on  the  ground  of  the 
verdict  being  against  evidence. 

Henry  James  and  T.  E.  Chitty  now  showed  cause. 

Hawkins  and  Kemplay,  in  support  of  the  rule. 

Erle,  C.  J.  This  was  an  action  for  goods  bargained  and  sold,  and 
the  question  was  whether  there  had  been  a  sale.  The  defendant  relies 
on  the  Statute  of  Frauds,  and  says  that  there  was  no  note  or  memoran- 
dum to  satisfy  the  statute.  There  was  a  letter,  however,  written  by 
the  defendant,  which  in  effect  says  this  to  the  plaintiffs  :  "  I  made  a 
bargain  with  you  for  the  purchase  of  chimney-glasses  at  the  sum  of 
£38  10s.  (V.,  but  I  declined  to  have  them  because  the  carrier  broke 
them."  Now,  the  first  part  of  that  letter  is  unquestionably  a  note  or 
memorandum  of  the  bargain  :  it  contains  the  price  and  all  the  substance 
of  the  contract ;  and  there  could  be  no  dispute  that,  if  it  had  stopped 
there,  it  would  have  been  a  good  memorandum  of  the  contract  within 
the  meaning  of  the  statute.  I  think  that  what  had  passed  in  the  first 
instance  orally  between  the  parties  on  the  subject  of  the  purchase  was 
in  the  nature  of  an  inchoate  contract,  and  which,  when  construed  with 
the  letter  afterwards  written,  is  a  good  and  binding  contract.  Then 
the  latter  part  of  the  letter  in  effect  says  that  "  the  goods  to  which  the 
contract  I  had  made  relates  were  refused  by  me  because  the  carrier 
broke  them  ;  "  and  it  has  been  contended  by  the  defendant  that  the 
letter  is  not  a  memorandum  of  the  contract  within  the  statute,  because 
it  repudiates  the  bargain  ;  and  the  defendant  has  relied  on  the  passage 
cited  from  Mr.  Justice  Blackburn's  book  on  Contracts,  in  support 
of  the  proposition  that  the  acknowledgment  of  the  bargain  is  not 
within  the  statute  if  it  is  accompanied  by  a  repudiation  of  it ;  and  ref- 
erence has  been  made  to  the  case  of  Rondeau  v.  Wyatt  where  there 
was  a  bill  of  discovery,  and  it  was  held  that  the  answer  thereto  in 
chancery  was  not  a  sufficient  memorandum  within  the  Statute  of 
Frauds.  Although  I  have  thus  adverted  to  these  authorities,  there  is  in 
fact  no  decided  authority  on  the  point,  and  we  are,  therefore,  referred 
back  to  the  original  Statute  of  Frauds;  and  I,  for  one,  am  of  opinion 
that  the  letter  of  the  defendant  is  a  good  memorandum  of  the  bargain 
within  the  meaning  of  that  statute.  The  object  of  the  act  was  to  pre- 
vent fraud  Miid  perjury.  That  is  sufficiently  obviated  by  the  letter  in 
question,  because  the  defendant  says  therein,  "  I  made  the  contract  for 
the  goods."  The  goods  and  the  price  are  both  referred  to,  and  the 
defendant  does  not  in  such  letter  rely  on  the  Statute  of  Frauds  as 
making  the  contract  invalid,  but  lie  rests  his  repudiation  on  the  ground 


SECT.  VII.]  BAILEY    V.    SWEETING.  913 

of  the  goods  having  boon  broken.  That  may,  I  think,  distinguish  the 
present  ease  from  cases  where  the  party  admitting  the  contract  has 
relied  on  the  statute  as  a  defence.  But  if  there  be  no  such  distinction, 
then,  with  every  respect  for  that  clear-headed  and  learned  judge,  ray 
brother  Blackburn,  I  cannot  assent  to  the  proposition  contained  in  his 
work  on  Contracts  to  the  extent  contended  for. 

Williams,  J.  I  am  of  the  same  opinion.  It  cannot  be  contro- 
verted that  in  point  of  fact  there  was  a  good  and  lawful  contract  for 
the  sale  of  the  goods,  the  price  of  which  is  sought  to  lie  recovered.  It 
is  clear,  however,  that  as  the  price  is  greater  than  £10  the  contract, 
though  good,  would  not  he  actionable  unless  the  requisites  of  the  Stat- 
ute of  Frauds  have  been  complied  with.  [His  Lordship  here  read  the 
17th  section  of  that  statute.]  The  effect  of  that  section  is  that,  though 
there  is  a  valid  verbal  contract,  it  is  not  actionable  unless  something  of 
several  things  has  happened,  one  of  which  is  the  existence  of  a  note 
or  memorandum  in  writing  of  the  bargain  signed  by  the  party  to  lie 
charged.  As  soon  as  that  occurs,  the  contract,  though  not  previously 
actionable,  becomes  actionable;  and  the  question  therefore  is,  whether 
in  the  present  case  there  exists  such  a  memorandum  as  the  statute 
refers  to.  It  appears  to  me  that  there  does.  The  letter  of  the  defend- 
ant refers  to  all  the  essential  terms  of  the  bargain  ;  and  the  only 
question  is.  whether  it  is  less  sufficient  because  it  is  accompanied  by  a 
statement  that  the  defendant  does  not  consider  himself  liable  for  the 
loss  arising  from  the  default  of  the  carrier.  I  do  not  consider  that  it  is 
so.  It  is  said  that  there  is  a  difficulty  in  maintaining  such  a  doctrine 
from  the  inconvenience  which  may  arise  from  the  property  not  passing 
until  the  contract  becomes  an  actionable  contract.  That  may  be  so  ; 
but  the  same  objection  would  apply  to  the  case  of  part  payment  or 
part  acceptance,  and  no  one  doubts  that  the  verbal  contract  might  In- 
set up  where  these  have  afterwards  occurred.  I  agree  with  my  Lord 
in  thinking  that  the  reasons  given  in  my  brother  Blackburn's  book  are 
not  sufficient.  I  do  not  think  that  the  question  whether  the  party 
writing  the  letter  had  a  right  to  put  an  end  to  the  contract  could  affect 
the  question  whether  there  was  or  was  not  a  good  contract.  The  inten- 
tion of  such  party  to  abandon  or  not  the  contract  can  have  nothing  to 
do  with  the  question  whether  there  is  a  sufficient  memorandum  or  not 
of  the  contract. 

Willes,  J.  I  am  of  the  same  opinion.  Assuming  there  to  be  a 
valid  contract,  the  defendant  would  be  bound  to  pay  for  these  goods  : 
and  not  having  done  so,  there  would  be  good  cause  of  action.  Now. 
at  common  law  it  is  clear  there  would  exist  in  this  ease  a  good  cause  of 
action  ;  but  it  is  said  that  the  defendant  is  not  liable  by  reason  of  the 
Statute  of  Frauds.  I  think,  however,  that  the  defendant  is  liable,  and 
I  found  my  opinion  on  the  17th  section  of  that  statute.  It  appears 
that  there  is  no  authority  on  the  subject  in  favor  of  either  party,  with 
the  exception  of  the  dictum  of  my  brother  Blackburn,  and  that  must 
be  taken  in  connection  with  the  statute  itself.     Now.  it  is  necessarj'  to 

58 


914  DURRELL    V.    EVANS.  [CHAP.  VI. 

look  at  the  words  of  the  statute  ;  the\-  are,  that  the  contract  shall  not 
be  good  unless,  amongst  other  things,  "  some  note  or  memorandum  in 
writing  of  the  said  bargain  be  made  and  signed  by  the  parties  to  be 
charged  by  such  contract."  It  follows,  therefore,  from  these  words 
that,  if  there  be  any  note  or  memorandum  in  writing  of  the  bargain 
signed  by  the  party  to  be  charged,  the  contract  is  to  be  allowed  as  at  com- 
mon law.  Then  is  there  in  the  present  case  a  memorandum  in  writing 
containing  the  terms  of  the  bargain?  I  think  that  on  the  true  construc- 
tion of  the  defendant's  letter  of  the  3d  of  December  there  is  such  a 
memorandum  within  the  meaning  of  the  statute.  It  has  been  argued 
that  there  is  not,  because  the  statement  in  the  letter  is  accompanied 
by  a  repudiation  of  the  bargain  ;  but  I  think  that  to  hold  that  such 
letter  is  not  on  that  account  a  note  or  memorandum  of  the  bargain 
would  be  to  disregard  the  word  "  some  "  in  the  statute.  There  is  here 
a  note  in  writing  of  the  bargain  ;  and  the  statute  does  not  say  that 
where  there  is  such,  the  statute  is  not  to  be  satisfied  if  there  exist  also 
other  circumstances. 

Keating,  J.  There  is  no  doubt  a  valid  contract  for  the  goods  in 
question  if  it  be  sufficiently  evidenced  by  some  writing  in  order  to  sat- 
isfy the  statute.  There  is  such  evidence  here  of  the  contract  in  the 
defendant's  letter  up  to  a  particular  portion  of  it.  Then  does  it  cease 
to  be  evidence  because  the  defendant  goes  on  afterwards  in  the  letter 
to  say  that  he  ought  not  to  be  bound  by  it?  I  think  it  does  not,  and  I 
should  have  had  no  doubt  about  it  but  for  the  opinion  of  my  brother 
Blackburn  in  his  work  on  Contracts. 

Rule  absolute  to  enter  verdict  for  the  plaintiff s  for  £38  10s.  6d. 


DURRELL   v.    EVANS   and  Others. 
In  the  Exchequer  Chamber,  May  19,  1862. 

[Reported  in  31  Law  Journal  Reports,  Exchequer,  337.] 

Appeal  from  the  Court  of  Exchequer. 

First  count,  for  not  accepting  pursuant  to  agreement  thirty-three 
pockets  of  hops,  at  the  price  of  £16  16s.  per  cwt.,  to  be  paid  on  the 
3d  of  November,  1860;  second  count,  for  goods  bargained  and  sold, 
and   interest. 

Plea :  to  the  first  count,  a  traverse  of  the  agreement ;  and  never 
indebted,  to  the  residue  of  the  declaration. 

At  the  trial  before  Pollock,  C.  B.,  at  the  sittings  in  London  after 
Michaelmas  term,  1860,  a  verdict  was  found  for  the  plaintiff  on  all  the 
issues,  with  £20  damages,  leave  being  reserved  to  move  to  enter  a  ver- 
dict for  the  defendants  or  a  nonsuit. 


SECT.  VII.]  DURRELL    V.    EVANS.  915 

A  rule  nisi  was  obtained  accordingly,  on  the  ground  that  there  was 
no  contract  in  writing  nor  part  delivery  of  goods  sufficienl  to  satisfy 
the  Statute  of  Frauds. 

The;  Court  of  Exchequer  (April  30,  1861)  made  the  rule  absolute  to 
enter  a  nonsuit.1 

The  following  is  the  statement  of  the  case  on  appeal :  — 

The  plaintiff  is  a  hop  grower  in  Kent ;  the  defendants  Messrs.  Evans 
are  hop  merchants,  carrying  on  husiness  in  Southwark.  Previous  to 
the  19th  of  October,  1860,  the  plaintiff  had  sent  samples  of  the  hops 
forming  the  subject  of  this  action  to  Messrs.  J.  T.  &  VY.  Noakes,  who 
carry  on  business  as  hop  factors  in  Southwark,  with  instructions  to  sell 
the  same  for  the  plaintiff,  but  not  under  £18  per  cwt.  On  Friday, 
October  19,  the  defendant  J.  C.  Evans  called  on  Messrs.  Noakes  and 
asked  to  see  samples  of  the  plaintiff's  hops,  which  wore  shown  to  him. 
Upon  asking  the  price,  Mr.  J.  T.  Noakes  replied  that  he  was  instructed 
by  the  plaintiff  not  to  sell  under  £18  per  cwt.  The  defendant  J.  C. 
Evans  said  that  was  too  high  a  price  for  them,  and  he  should  not  give 
so  high  a  price  for  them.  He  then  left  Messrs.  Noakes's  premises. 
On  the  afternoon  of  the  same  day,  Friday,  October  19,  the  plaintiff 
happened  to  be  in  the  borough,  and  met  the  defendant  J.  C.  Evans  :  a 
conversation  took  place  between  them  with  reference  to  the  plaintiff's 
hops.  Mr.  J.  C.  Evans  offered  the  plaintiff  £16  16s.  per  cwt..  which 
the  plaintiff  refused,  but  ultimately  both  parties  went  to  Messrs. 
Noakes's  counting-house,  and  saw  Mr.  J.  T.  Noakes  upon  the  subject. 
Some  further  conversation  took  place  as  to  the  purchase  of  the  hops, 
which  ended  in  Mr.  J.  C.  Evans  refusing  to  give  more  than  £16  16.s. 
per  cwt.  The  plaintiff  in  the  presence  and  hearing  of  Mr.  Evans 
asked  Mr.  J.  T.  Noakes  whether  he  would  recommend  him  (the  plain- 
tiff) to  accept  Mr.  Evans's  offer.  Mr.  Noakes  advised  him  to  do  so, 
and  the  plaintiff  agreed  to  sell  the  hops  at  that  price.  Mr.  Noakes 
then  drew  out  a  sale  note  in  duplicate. 

By  the  custom  of  the  hop  trade  the  purchase-money  for  hops  is 
payable  on  the  Saturday  week  following  the  day  of  the  sale.  This 
transaction  took  place  on  Friday  the  19th  of  October:  and  the  money 
would  consequently  have  become  payable  in  due  course  on  Saturday, 
October  the  27th.  Mr.  Noakes  therefore  drew  out  the  following 
memorandum,  and  dated  it  the  ftUh  of  October,  whereupon  Mr.  Evans 
requested  him  to  alter  the  date  to  the  20th.  in  order  that  he  might 
have  another  week's  time  for  payment.  The  plaintiff  and  Mr.  Noakes 
consented  to  this,  and  the  alteration  was  accordingly  made  by  Mr. 
Noakes,  who  then  gave  the  memorandum  so  altered  to  Mr.  J.  C  Evans, 
who  took  the  same  away  with  him,  and  he  has  never  yet  returned  it. 
The  memorandum  was  torn  from  a  book  which  contained  a  counterfoil, 
and  which  was  filled  up  and  retained  by  Messrs.  Noakes. 

The  following  is  a  copy  of  the  memorandum  first  referred  to:  — 

1  30  L.  J.  Exch.  254. 


916  DURRELL   V.    EVANS.  [CHAP.  VI. 

Messrs.  Evans 

Bought  of  J.  T.  &  W.  Noakes 
Bags.     Pockets.  T.  Durrell,  )  £    s. 

33  Ryarsh  and  Aldington  J  16  16 

20th, 
Oct.  19th,  1860. 

The  following  is  a  copy  of  the  counterfoil  above  referred  to  :  — 
Sold  to  Messrs.  Evans 
Bags.     Pockets.  T.  Durrell,  .  \£     s. 

33  Ryarsh  and  Addington  /  16  16 

20th, 
Oct.  19th,  1860. 

[In  both  documents  19th  was  struck  through  with  the  pen,  and  20th 
inserted  above.] 

No  memorandum  (except  as  aforesaid)  was  signed  or  given  by  the 
defendants  or  any  person  on  their  behalf,  nor  was  there  any  writing 
relating  to  the  contract  except  as  above  set  out  and  the  invoice  after 
mentioned.  A  sample  of  each  of  the  pockets  of  hops  was  sent  by 
Messrs.  Noakes  to  the  defendants  the  same  evening  ;  and  the  defend- 
ants have  ever  since  retained  them,  and  still  keep  them. 

In  the  usual  course  of  business,  after  the  purchase  is  completed  by 
the  factor  an  appointment  is  made  between  the  vendor  and  the  pur- 
chaser for  the  hops  to  be  weighed  ;  for  which  purpose  they  are  sent 
by  the  vendor  to  his  factor's  warehouse.  In  this  instance  the  appoint- 
ment was  made  for  the  following  Tuesday,  October  23  ;  and  on  that 
morning  the  hops  were  sent  to  Messrs.  Noakes' s  warehouse.  The 
warehouseman  of  the  factor  generally  weighs  in  behalf  of  the  vendor, 
and  the  purchaser  either  comes  himself  or  sends  some  one  to  see  the 
hops  weighed  on  his  behalf.  In  this  case  the  plaintiff  came  up  to  see 
his  hops  weighed,  and  the  defendants  sent  one  of  their  men  (James 
Wenn)  to  see  them  weighed  for  them.  Each  weigher  has  a  book  in 
which  he  records  the  weight  of  each  pocket,  and  also  the  excise  weight, 
with  the  number  or  figure  with  which  each  pocket  is  marked  or  dis- 
tinguished. On  this  occasion  the  weighing  proceeded  in  the  usual 
course  until  five  pockets  had  been  weighed,  when  a  dispute  took  place 
between  the  weighers,  and  ultimately  the  defendants'  weigher  refused 
to  weigh  any  more.  The  defendant  R.  P.  Evans  came  into  the  ware- 
house at  this  time,  and  went  to  the  scale  and  saw  weighed  the  pocket 
that  was  therein.  Having  done  so,  he  cut  it  open  and  took  out  a  por- 
i  ion  of  the  hops  and  said  they  were  damp.  The  plaintiff  denied  that 
they  were  damp;  but  .the  defendant  persisted  in  his  statement,  and, 
finally  said  he  should  not  take  the  hops  at  all,  and  left  the  warehouse 
with  his  man. 

After  the  defendant  and  his  weigher  left  the  warehouse  and  after 
such  refusal,  the  plaintiff's  weigher  completed  the  weighing,  and  the 
weight  amounted  in  the  whole  to  50  cwt.  13  lb. 


SECT.  VII.]  DURRELL   V.    EVANS.  917 

On  the  9th  of  November,  18G0,  Messrs.  Noakes  sent  to  the  defend- 
ants an  invoice,  of  which  the  following  is  a  copy  :  — 

Messrs.  Evans  &  Co.  Borough. 

To  J.  T.  &  W.  Noakes. 
1860. 

cwt.  lb.       £  8.      £    s. 
Oct.  20,  Durrell  bt.  33  po.  50  13  @  16  16,  841  19. 

It  was  stated  by  Mr.  Noakes  at  the  trial  that,  a  day  or  two  after  the 
difference  relative  to  the  weighing,  he  had  an  interview  with  the  de- 
fendant R.  M.  Evans,  at  which  he  requested  R.  M.  Evans  to  send  and 
have  the  weighing  completed,  when  R.  M.  Evans  promised  Noakes  that 
he  would  do  so  and  accept  the  hops  and  complete  the  purchase  ;  but 
the  defendants  subsequently  refused  to  do  so,  and  thereupon  the  plain- 
tiff instructed  his  attorneys  to  write  and  send  a  letter  to  the  defend- 
ants, which  was  done. 

Copy  letter  from  plaintiff's  attorne3S  :  — 

37  King  William  Street,  London  Bridge, 
Nov.  9,  1860. 

Sirs,  — We  have  been  consulted  by  Mr.  Durrell  of  Banstead  with 
reference  to  your  refusal  to  complete  your  contract  for  the  purchase  of 
33  pockets  of  hops,  sold  to  you  by  Messrs.  Noakes  on  behalf  of  our 
client  on  the  20th  of  October  last. 

We  beg  to  enclose  you  the  delivery  order,  and  are  instructed  to  in- 
form you  that  the  goods  remain  in  Messrs.  Noakes's  warehouse,  await- 
ing your  order  or  disposal,  and  at  30111-  risk  and  costs ;  and  further 
that  unless  the  sum  of  £841  19s..  being  the  amount  of  the  invoice  al- 
ready sent  you  for  these  hops,  be  paid  to  us  by  11  o'clock  on  Monday 
morning,  we  shall  take  immediate  proceedings  against  you  for  its 
recovery. 

In  the  event  of  your  deciding  to  resist  this  claim,  we  have  to  request 
a  reference  to  }our  solicitors.  We  are,  etc., 

Ingle  &  Gooddy. 
Messrs.  R.  M.  Evans  &  Co.,  George  Yard,  Borough. 

The  invoice  above  referred  to  has  ever  since  been  retained  by  the 
defendants. 

On  the  9th  of  November  the  plaintiffs  attorneys  sent  to  the  defend- 
ants in  the  first-mentioned  letter  a  delivery  order,  of  which  the  follow- 
ing is  a  copy  :  — 

Messrs.  Noakes's  Hop  Warehoi  se, 

Sparrick  Row,  WestOD  Street. 

Groombridge,  —  Weigh  and  deliver  to  Messrs.  R.  M.  Evans  &  Co. 
33  po.  hops  —  T.  I.  Durrell  —  Ryarsh  and  Addington. 

For  J.  T.  &  W.  Noakes,  P.  N.  Norris 


918  DURBELL   V.    EVAN'S.  [CHAP.  VI. 

This  delivery  order  the  defendants  refused  to  receive  ;  and  it  was 
taken  back  by  the  clerk  who  brought  it,  and  on  the  same  day  returned 
with  a  letter  as  follows  :  — 

37  King  William  Street,  London  Bridge, 
Nov.  9,  1860. 

Gentlemen,  —  Our  clerk  has  taken  back  the  enclosed  in  error:  we 
therefore  return  it  to  you.  Ingle  &  Gooddy. 

Messrs.  Evans  &  Co. 

The  defendants  returned  it  with  the  following  letter:  — 

Messrs.  Evans  &  Co.  present  their  compliments  to  Messrs.  Ingle  & 
Gooddy,  and  beg  to  say  the  enclosed  was  taken  back  by  their  clerk  at 
Messrs.  Evans  &  Co.'s  request. 

Soi  TinvAHK,  London,  Nov.  9,  1860. 

The  action  was  then  commenced  on  the  15th  of  November,  1860. 

No  part  of  the  said  hops  (except  the  samples)  has  ever  been  delivered 
to  the  defendants. 

T.  Jones,  for  the  plaintiff. 

Lush,  for  the  defendants. 

Crompton,  J.  In  this  case  a  verdict  for  the  plaintiff  was  consented 
to,  leave  being  reserved  to  enter  a  nonsuit ;  and  if  there  was  any  evi- 
dence to  go  to  the  jury  on  which  they  might  have  found  for  the  plain- 
till',  the  verdict  must  stand,-  and  the  rule  for  entering  a  nonsuit  be 
discharged.  I  certainly  was  at  first  struck  at  the  way  in  which  the 
case  was  put  by  my  brother  Wilde  in  the  court  below,  and  which  was 
adopted  by  the  rest  of  that  court,  —  that  what  the  defendant  did  was 
simply  taking  an  invoice  and  asking  to  have  it  altered  ;  and  if  the  jury 
had  found  that,  a  nonsuit  would  have  been  right.  But  I  cannot  agree 
with  my  brother  Wilde  and  Mr.  Lush  that  the  document  in  question 
was  merely  an  invoice  :  on  the  contrary  I  think  there  was  plenty  of 
evidence  to  go  to  the  jury  on  the  question  whether  Noakes  the  agent 
was  to  make  a  record  of  a  binding  contract  between  the  parties,  and 
that  there  was  at  least  some  evidence  from  which  the  jury  might  have 
found  in  the  affirmative.  One  of  the  defendants  having  seen  Noakes 
on  the  subject  of  the  purchase  of  the  hops,  afterwards  the  plaintiff  and 
the  defendant  meet  at  Noakes's,  and  Noakes  in  their  presence  writes  a 
memorandum  in  duplicate,  except  that  the  one  copy  has  "  bought"  and 
the  other  "sold,"  and  hands  that  which  has  "Messrs.  Evans  bought" 
on  it  to  the  defendant ;  he  reads  it,  and  takes  it,  and  adopts  it  with 
the  alteration  ol  the  date  which  he  had  wished  to  be  made,  and  which 
had  been  made  in  his  presence.  This  was  evidence  that  the  parties 
did  intend  a  binding  record  of  the  contract  should  be  made  and  that 
Noakes  was  the  agent  of  both  parties  to  make  such  a  binding  contract. 
Thai  being  so,  did  Noakes  do  this?  If  this  were  the  first  case  on  the 
Statute  of  Frauds  I  should  have  doubted  whether,  if  the  vendee  put 
his  name  at  the  top  of  the  document,  this  would  have  been   a  signing 


SECT.  VII.]  DURHELL   V.    EVANS.  919 

within  the  statute.     But  it  has  been  decided  that  it  does  not  signify 
where  the  name  is  put,  if  it  be  put  somewhere  on  the  document  by  the 
parties   themselves   who  are  to  be  bound  by  the  signature,  or  by  the 
person  having  authority  from  them  to  make  a  eontract  on  their  behalf. 
Thus  in  Schneider  v.  Norris  the  defendant's  name  was   printed  at  the 
commencement  of  an  invoice  to  which  he  had   added   the    plaintiff's 
name,  and  which  he  handed  to  the  plaintiff,  and  it  was  held  sufficient; 
and  it  seems  to  me  that,  when  it  is  once  established  that,  if  the  putting 
of  the  name  be  the  act  of  the  party,  that  is  sufficient  in  whatever  part 
of  the  document  the  name  may  be,  a  similar  act  of  an  agent  must  have 
the  same  effect.     This  case  comes  nearer  to  Johnson  v.  Dodgson  than 
Graham  v.  Musson.     In  the  former  case  the  defendant  wrote,  "Sold  J. 
Dodgson  "    (his  own  name)   so  and  so,   and   requested  the  plaintiffs 
agent  to  sign  ;  and  the  court  held  the  defendant  bound  by  a  signature  of 
this  nature  ;   and  Parke,  B.,  says:   "I  think  this  was  a  sufficient  memo- 
randum in  writing.    The  defendant's  name  was  contained  in  it  in  his  own 
handwriting,  and  it  was  signed  bj-  the  plaintiffs.     The  point  is  in  effect 
decided  by  the  cases  of  Saunderson  v.  Jackson  and  Schneider  v.  Norris. 
There  the  hills  of  parcels  were  held  to  be  a  sufficient  memorandum  in 
writing,  it  being  proved  that  they  were  recognized  by  being  handed  over 
to  the  other  party.     Mere  the  entry  was  written  by  the  defendant  him- 
self, and  required  by  him  to  be  signed  by  the  plaintiff's  agent.     That  is 
amply  sufficient  to  show  that  he  meant  it  to  be  a  memorandum  of  con- 
tract between  the  parties."     In  the   present  case  the  writing  was  by 
another  in  the  presence  of  the  defendant,  but  in  every  other  point  it  is 
the  same  as  Johnson  v.   Dodgson.     In  that  case  the  defendant  never 
meant  when  he  put  his  name  that  the  signature  should  be  a  signature 
within  the  Statute  of  Frauds,  but  he  did  intend  to  make  a  memorandum 
of  the  contract.     So  here  it  was  clearly  meant  that  there  should  be  a 
memorandum  of  the  contract  between  the  parties.    Lord  Abinger,  C.  B., 
in  the  same  case,  Johnson  v.  Dodgson,  says:  "The  Statute  of  Frauds 
requires  that  there  should  be  a  note  or  memorandum  of  the  contract  in 
writing  signed  by  the  party  to  be  charged.     And  the  cases  have  de- 
cided that,  although  the  signature  be  in  the  beginning  or  middle  of 
the  instrument,  it  is  as  binding  as  if  at  the  foot  of  it;  the  question 
being  always  open  to  the  jury,  whether  the  party  not  having  signed  it 
regularly  at  the  foot  meant  to  be  bound  by  it  as  it  stood,  or  whether 
it  was  left  so  unsigned  because  he  refused  to  complete  it.     But,  -when  it 
is  ascertained  that  he  meant  to  be  bound  by  it  as  a  complete  contract, 
the  statute  is  satisfied,  there  being  a  note  in  writing  showing  the  terms 
of    the  contract,    and    recognized    by   him.      I    think   in   this   case   the 
requisitions  of  the  statute  are  fully  complied  with."     That  seems  to  me 
directly  to  apply  to  the  present  case.      It  is  true  the   words   "  Messrs. 
Evans"  were  not  written  by  the  defendant  himself,  but  he  takes  the 
document   and  sees    the   name    written    on    it,    and    then   returns    it  to 
Noakes  to  make  a  slight  but  important  alteration,  and  so  recognizes  it 
as  the  record  of  the  contract.     The  case  therefore  is  not  really  different 


920  DURRELL   V.    EVANS.  [CHAP.  VI. 

in  principle  from  Johnson  v.  Dodgson  ;  for  supposing  the  person  sign- 
ing the  name  was  the  person  intended  by  him  whose  name  is  signed  to 
make  a  binding  contract  on  his  behalf,  it  follows  that  the  person  sign- 
ing would  have  sufficient  authority  to  put  the  signature  ;  and  there  is 
nothing  in  any  of  the  cases  to  show  that  it  must  be  proved  that  the 
person  signing  it  was  expressly  authorized  to  put  the  name,  or  that 
it  was  intended  to  put  the  name  as  a  binding  signature  within  the 
Statute  of  Frauds :  the  mere  writing  of  the  name  is  sufficient.  If 
Noakes  had  formally  signed  the  names  of  Evans  and  Durrell,  he  would 
clearly  have  had  authority  to  do  it ;  and  if  the  person  signing  is  the 
party  authorized  to  make  a  binding  contract,  that  is  sufficient,  although 
there  was  no  express  idea  at  the  time  that  he  should  sign.  Graham  v. 
Musson  had  some  weight  with  me  at  first ;  but  on  examination  it  is  not 
so  near  the  present  case  as  Johnson  v.  Dodgson.  Graham  v.  Musson 
turned  on  the  nature  of  the  signature  by  the  clerk  when  he  signed  his 
own  name:  he  did  not  sign  the  name  of  the  defendant  Musson,  and  in 
signing  his  own  name  he  meant  to  sign  as  his  employer's,  the  plaintiff's 
agent,  and  not  as  the  defendant's.  If  he  had  signed  Musson's  name, 
the  case  would  have  been  within  the  authority  of  Bird  v.  Boulter,  and 
it  may  be  that,  even  as  it  was,  there  was  evidence  to  go  to  the  jury. 
Bird  v.  Boulter  is  strongly  in  the  plaintiff's  favor.  In  that  case  the 
auctioneer's  clerk  was  held  to  be  the  party  intended  and  impliedly 
authorized  to  act  as  agent  of  both  parties  merely  from  the  surrounding 
circumstances  of  the  case  ;  and  the  writing  by  him  of  the  name  of  the 
purchaser  was  held  sufficient,  although  it  was  never  intended  by  the 
purchaser  to  give  him  distinct  authority  to  make  a  signature  binding 
under  the  Statute  of  Frauds.  The  cases  of  a  broker  and  auctioneer, 
when  properly  considered,  show  the  nature  of  the  thing ;  when  it  is 
shown  from  the  course  of  trade  or  the  surrounding  circumstances  that 
the  persons  signing  are  the  persons  authorized  to  contract,  then  they 
are  the  persons  to  make  a  signature  binding  within  the  statute  ;  and 
this  may  also  be  shown  by  evidence  that  the  person  sought  to  be 
charged  afterwards  assumed  the  memorandum  to  be  a  binding  contract. 

It  may  be  that  if  the  jury  had  found  that  this  document  was  merely 
an  invoice,  and  was  treated  by  the  defendants  as  such,  the  defendants 
would  have  been  entitled  to  a  nonsuit ;  but  if  there  was  any  evidence  to 
go  to  the  jury  of  the  contrary,  then  the  plaintiff  is  entitled  to  keep  his 
verdict.  We  think  that  there  was  evidence  (and  that  is  the  only  point 
on  which  we  differ  from  the  court  below)  that  Noakes  was  intended 
by  the  defendant  as  well  as  the  plaintiff  to  make  a  record  of  a  contract 
which  was  to  be  binding  upon  both. 

I  am  to  add  that  my  brother  Willes  entertains  a  strong  view  the 
same  way;  and  indeed  I  believe  he  is  of  opinion,  not  only  that  there 
was  evidence  to  go  to  the  jury,  but  that  the  verdict  ought  to  have  been 
for  the  plaintiff. 

Btles,  d.  I  am  of  the  same  opinion.  I  do  not  wish  to  go  through 
the  cases  on  the  subject,  but  1  cannot  help  stating  my  short  view  of  the 


SECT.  VII.]  DURRELL   V.    EVANS.  921 

effect  of  the  facts.  It  seems  to  me  that  there  was  evidence  sufficient 
to  sanction  a  verdict  for  the  plaintiff.  It  is  plain  that  the  signature, 
though  not  at  the  foot  of  the  document  but  at  the  beginning,  is  abun- 
dantly sufficient.  Then  in  the  first  place  was  the  plaintiff  bound  by 
what  Noakes  did?  The  Messrs.  Noakes  were  employed  by  him  as 
factors  ;  there  was  therefore  no  doubt  more  evidence  against  him  than 
against  the  defendants.  But  the  defendant  and  the  plaintiff  knew 
what  Noakes  was  doing.  What  does  the  defendant  do?  First  of  all 
he  sees  a  duplicate  written  by  the  hand  of  the  agent,  and  he  knows  it 
a  counterpart  of  that  which  was  binding  on  the  plaintiff :  he  knew  what 
was  delivered  out  to  him  was  a  sale  note  in  duplicate,  and  accepts  and 
keeps  it.  The  evidence  of  what  the  defendant  did,  both  before  and 
after  Noakes  had  written  the  memorandum,  shows  that  Noakes  was 
authorized  by  the  defendant ;  and  the  case  comes  directly  within  the 
terms  of  Lord  Abinger's  judgment  in  Johnson  v.  Dodgson. 

Blackburn,  J.  I  also  am  of  opinion  that  there  was  evidence  on 
which  the  jury  might  have  found  that  the  memorandum  was  signed  on 
behalf  of  the  defendants  Messrs.  Evans  in  such  a  way  as  to  bind  them. 
Noakes  no  doubt  was  not  acting  as  broker  as  between  the  parties,  nor 
did  he  purport  to  deliver  bought  and  sold  notes  :  in  which  case,  if 
there  had  been  a  variance  between  them,  there  would  have  been  no 
contract.  Thornton  v.  Kempster,  5  Taunt.  786.  Nevertheless  there 
wras  evidence  from  which  the  jury  might  have  inferred  that  that  was  a 
memorandum  according  to  the  decided  cases,  so  as  to  be  binding  within 
the  Statute  of  Frauds.  In  order  to  do  this  it  is  essential  that  there 
should  be  a  signature  made  by  an  agent  authorized  to  make  it.  Now 
"  Messrs.  Evans"  was  written  by  Noakes  at  the  top  of  the  document. 
If  the  matter  were  res  Integra  I  should  very  much  doubt  whether  the 
name  so  written  would  be  a  sufficient  signature  ;  but  in  Saunderson  v. 
Jackson,  Lord  Eldon,  C.  J.,  recognized  as  law  that  the  name,  though 
at  the  beginning,  might  be  a  sufficient  signature,  and  it  is  now  too  late 
to  question  such  a  doctrine.  If  the  name  appears  on  the  contract,  and 
be  written  by  the  party  to  be  bound  or  by  his  authority,  and  issued  or 
accepted  by  him,  or  intended  by  him  as  the  memorandum  of  a  contract, 
that  is  sufficient.  In  Schneider  v.  Norris  and  Saunderson  v.  Jackson 
the  name  of  the  vendor,  the  person  sought  to  be  charged,  was  printed 
at  the  head  of  a  bill  of  parcels  ;  and  in  Johnson  v.  Dodgson  the  docu- 
ment was  retained  in  the  defendant's  own  possession,  but  there  was 
evidence  that  the  defendant  intended  that  it  should  be  the  memoran- 
dum of  the  contract,  and  it  was  held  binding  on  him,  though  there  was 
strong  evidence  that  the  document  was  retained  by  the  defendant  in 
order  to  bind  the  other  side,  and  that  the  document  was  not  meant  by 
him  as  binding  himself,  and  as  a  voucher  to  the  other  side  ;  and  that 
circumstance  it  is  important  to  observe  as  bearing  on  the  present  case, 
because  what  was  handed  to  the  defendant  Evans  was  not  meant  as  a 
voucher  to  the  other  side.  The  case  in  the  court  below  proceeded  on 
what  was  thrown  out  by  my  brother  Wilde  ;  and  I  agree  with  the  de- 


922  PARTOX    V.    CROFTS.  [CHAP.  VL 

cisiou  of  that  court,  if  this  document  were  a  bill  of  parcels  01  an  invoice 
in  the  strict  sense,  viz.,  a  document  which  the  vendor  writes  out,  not  as 
the  account  of  both  parties,  but  as  being  the  account  of  the  vendor,  and 
not  a  mutual  account.  But  in  the  present  instance  I  cannot  as  a  matter 
of  course  look  at  this  instrument  as  an  invoice  or  bill  of  parcels,  as  in- 
tended only  as  the  vendor's  account.  Perhaps  I  should  draw  the  infer- 
ence that  it  was  ;  but  it  is  impossible  to  deny  that  there  was  plenty  of 
evidence  that  the  instrument  was  written  out  as  the  memorandum  by 
which,  and  by  nothing  else,  both  parties  were  to  be  bound.  [The 
learned  judge  then  read  the  evidence  as  to  what  took  place  at  Noakes's 
office.]  There  certainly  was  evidence,  I  may  say  a  good  deal  of  evi- 
dence, that  Noakes  was  to  alter  this  writing,  not  merely  as  the  seller's 
account,  but  as  a  document  binding  on  both  sides.  When  therefore 
we  oet  the  name  of  Evans  on  a  document  intended  to  be  a  memoran- 
dum  of  a  contract,  the  case  is  identical  with  Johnson  v.  Dodgson, 
except  only  that  the  defendant  did  not  write  the  name  himself:  that 
circumstance  however  affords  no  solid  distinction,  except  as  to  the 
weight  of  evidence ;  and  I  do  not  see  anj'  reason  why  Johnson  v. 
Dodgson  should  be  overruled.  In  that  case  we  have  the  authority  of 
two  great  judges ;  and  what  they  say  is  that,  when  a  document  is 
drawn  up  under  circumstances  like  the  present,  it  is  a  question  for  the 
jury  whether  the  party  sought  to  be  charged  intended  to  be  bound  by 
the  document.  Graham  v.  Musson  is  not  at  all  inconsistent  with 
Johnson  v.  Dodgson.  In  Graham  v.  Musson  the  name  of  the  defend- 
ant, the  buyer,  did  not  appear  on  the  document ;  the  signature  was 
that  of  Dyson  the  agent  of  the  seller,  put  there  at  the  request  of 
Musson  the  buyer,  in  order  to  bind  the  seller;  and  unless  the  name  of 
Dyson  was  equivalent  to  that  of  Musson,  there  was  no  signature  by 
the  defendant;  but  in  point  of  fact  "J.  Dyson"  was  equivalent  to 
''for"  or  "  per  pro.  North  &  Co.,  J.  Dyson." 

Judgment  reversed ;  ride  discharged} 


PARTON,  Appellant,  v.  CROFTS,  Respondent. 
In  the  Common  Pleas,  February  3,  1864. 

[Reported  in  33  Law  Journal  Ilrporfs,  Common  Pleas,  189.] 

Appeal  from  the  decision  of  the  judge  of  the  County  Court  of  Lan- 
cashire, bolden  at  Liverpool. 

The  action  was  brought  by  the  plaintiff  (the  respondent  on  this 
appeal)  to  recover  £f»0  for  loss  and  damage  sustained  in  consequence 
of  the  non-performance  by  the  defendant  (the  appellant  on  this  appeal) 

1  Keatisg  and  MELLOB,  JJ.,  delivered  brief  concurring  opinions. 


SECT.  VII.]  PAUTOX    V.    CEOFTS.  923 

of  a  contract  for  the  purchase  of  500  tons  of  Scotch  pig-iron,  and  was 
tried  at  the  said  County  Court  without  a  jury  on  9th  of  July,  18G3, 
when  the  following  evidence  was  given  on  the  part  of  the  plaintiff:  — 

On  the  25th  of  August,  18G2,  the  defendant  called  on  Messrs.  Bentley, 
Blain,  &  Co.  of  Liverpool,  brokers  (introduced  and  accompanied  by  a 
Mr.  M'Monnies),  and  stated  that  he  wished  to  make  a  purchase  through 
them  of  Scotch  pig-iron  to  the  extent  of  2000  tons.  Mr.  Bentley  (Mr. 
Blain  his  partner  being  present  at  the  interview)  told  the  defendant 
that  he  thought  they  could  buy  the  quantity  he  wished;  but  that  they 
would  make  inquiries.  The  defendant  then  asked  and  was  told  the 
day's  prices,  namely,  58s.  a  ton  ;  and  lie  was  also  told  that  there  would 
be  an  immediate  deposit  payable  of  os.  a  ton  :  in  answer  to  which  last 
remark  he  said  that  he  was  aware  of  the  fact.  Mr.  Bentley  added  that 
the  market  that  day  was  strong,  and  that  the  defendant  before  giving 
instructions  to  purchase  had  belter  make  his  own  inquiries  elsewhere, 
and  return  to  their  office  after  he  had  done  so.  The  defendant  said 
that  it  was  not  necessary  for  him  to  make  other  inquiries,  as  he  was 
satisfied  to  leave  the  matter  in  the  hands  of  Bentley,  Blain.  &  Co.  ;  and 
he  instructed  Mr.  Bentley  to  buy  (and  acting  on  these  instructions  Mr. 
Bentley  did  buy)  for  him  2000  tons  of  Scotch  pig-iron  on  the  terms 
which  are  embodied  in  the  contract  notes  hereinafter  referred  to. 

At  the  date  of  this  conversation  Messrs.  Bentley,  Blain,  &  Co.  had 
instructions  from  the  plaintiff  to  sell  as  his  brokers  500  tons  of  Scotch 
pig-iron,  his  property,  then  lying  in  Glasgow.  They  had  similar  in- 
structions from  other  principals  with  regard  to  further  quantities  of  the 
same  description  of  iron  ;  their  instructions  extending  to  more  than 
2000  tons.  Mr.  Bentley  explained  that  to  a  certain  extent  his  firm 
knew  what  they  could  do  as  to  the  sale  ;  and  that  wdiat  he  meant  when 
he  told  the  defendant  they  would  inquire  was,  that  they  would  inquire 
from  their  principals  whether  they  would  accept  the  price  named  ;  and 
this  reference,  Mr.  Bentley  added,  applied  to  the  whole  quantity  as  to 
which  they  had  instructions  for  sale.  No  question  was  asked  at  the 
trial  as  to  how  and  when  this  reference  was  had.  The  plaintiff  lived  in 
Liverpool. 

In  the  course  of  the  afternoon  of  the  same  day  Messrs.  Bentley, 
Blain,  &  Co.  sent  the  defendant  a  letter  enclosing  two  contract  notes 
for  (in  the  whole)  2000  tons,  one  of  such  notes  being  for  1500  tons, 
and  the  other  for  the  plaintiff's  500  tons,  the  subject-matter  of  this 
action. 

The  above  letter  and  the  contract  note  in  question  were  produced 
by  the  defendant,  and  put  in  evidence  by  the  plaintiff.  The  letter  was 
in  these  terms  :  — 

S.  Partox,  Esq. 

Dear  Sir, —  Enclosed  please  find  contract  notes  for  2000  tons 
Scotch  pig-iron,  purchased  this  day  on  your  account. 

Bentley,  Blain.   &   Co. 


924  PARTON  V.    CEOFTS.  [CHAP.  VI. 

The  contract  note  was  in  these  terms :  — 

5  Yokk  Buildings,  Liverpool,  25th  of  August,  1862. 
Sold  to  S.  Parton,  Esq.,  on  account  of  principals,  500  tons  Scotch 
pio--iron  of  good  merchantable  brands,  three-fifths  No.  1,  and  two-fifths 
No.  3,  at  57s.  dd.  per  ton,  delivered  in  Glasgow;  payment  by  5s.  per 
ton  deposit  at  once,  and  the  balance  of  52s.  9(7.  per  ton  net  cash  in 
Glasgow  on  or  before  21st  November  next,  in  buyer's  option,  on  giving 
seven  clays'  notice,  against  storekeepers'  warrants  for  the  delivery  of 
the  iron.  Bentley,  Blain,  &  Co. 

It  was  stated  by  Mr.  Bentley  that  a  contract  note  of  the  same  date 
as  the  above,  and  relating  to  the  same  500  tons  of  iron,  was  sent  by  the 
firm  to  the  plaintiff,  for  whom  as  well  as  for  the  defendant  Messrs. 
Bentley,  Blain,  &  Co.  acted  as  brokers  in  the  transaction.  That  con- 
tract note  was  not  tendered  in  evidence  by  the  plaintiff;  nor  had  any 
notice  to  produce  it  been  given  by  the  defendant. 

There  was  no  further  evidence  of  any  entry  or  memorandum  of  the 
transaction.  The  defendant  did  not  pay  the  deposit  according  to  the 
terms  of  the  contract  note,  but  promised  payment  in  a  few  days. 
Ultimately  however  he  refused  to  pay  such  deposit  or  to  accept  the 
iron,  delivery  of  which  it  was  admitted  on  the  trial  had  been  duly 
offered.  In  the  mean  time  the  market  was,  and  continued  to  be,  a  fall- 
ing market.  It  was  also  admitted  that,  if  the  plaintiff  were  entitled  to 
recover,  he  was  entitled  to  a  verdict  for  the  amount  claimed. 

For  the  defence  the  defendant  was  examined  ;  and  he  denied  that 
any  such  conversation,  on  the  25th  of  August  or  at  any  time,  as  that 
spoken  to  by  Mr.  Bentley  and  Mr.  Blain,  so  far  as  related  to  himself, 
had  occurred,  or  that  he  had  given  any  instructions  for  the  purchase  of 
iron  ;  and  he  added  that  the  instructions  given  were  by  Mr.  M'Mon- 
nies,  and  on  his  sole  and  separate  account. 

M'Monnies  was  not  called. 

It  was  objected  on  the  part  of  the  defendant  that  the  documents 
above  set  out  did  not  constitute  a  sufficient  note  or  memorandum  of 
the  bargain  to  satisfy  the  17th  section  of  the  Statute  of  Frauds;  and 
on  the  evidence  it  was  contended  on  his  behalf  that  Messrs.  Bentley, 
Blain,  &  Co.,  even  if  their  version  of  the  facts  was  accepted  as  true, 
were  and  acted  as  factors,  not  brokers,  in  the  transaction. 

The  judge  found  as  a  fact  on  the  evidence  that  Bentley,  Blain,  &  Co. 
were  and  acted  as  brokers  in  the  transaction,  and  that  they  were 
authorized  as  the  defendant's  agents  to  make  the  contract  referred  to ; 
and  he  held  as  matter  of  law  that  the  documents  set  out  were  suffi- 
cient to  satisfy  the  17th  section  of  the  Statute  of  Frauds.  A  verdict 
was  thereupon  entered  for  the  plaintiff  for  £50. 

The  question  for  the  opinion  of  the  Court  of  Common  Pleas  was, 
whether  upon  the  facts  found  by  the  judge  he  was  right  in  point  of  law 
in  his  determination. 


SECT.  VII.]  PARTON   V.    CROFTS.  925 

Quain,  for  the  appellant. 

C.  Russell,  for  the  respondent. 

Eele,  C.  J.  I  am  of  opinion  that  the  judgment  of  the  Count}'  Court 
judge  was  right.  The  action  was  for  not  accepting  goods  sold  by  the 
plaintiff  to  the  defendant.  It  is  clear  from  the  facts  found  by  the 
County  Court  judge  that  Bentley  &  Co.  the  brokers  were  employed 
as  such  by  both  the  buyer  and  the  seller.  The  buyer  proposed  to  take 
the  iron,  the  subject  of  the  action,  at  a  certain  price,  and  that  price 
was  accepted  by  the  seller ;  and  in  my  opinion  the  broker  was  the 
common  agent  of  both  parties,  and  had  authority  to  make  and  so 
made  the  contract  between  them.  The  question  which  we  have  to 
determine  is,  whether  the  requisites  of  the  Statute  of  Frauds  have 
been  complied  with ;  that  is  to  say,  whether  there  has  been,  as  required 
by  that  statute,  a  memorandum  in  writing  of  the  contract.  I  am 
careful  in  drawing  the  distinction  between  making  a  contract  and  a 
memorandum  showing  that  the  contract  has  been  made,  and  which 
maj'  be  made  much  later  than  the  contract.  In  the  present  case  the 
memorandum  of  the  contract  which  was  produced  was  signed  by  the 
brokers,  who  were  agents  for  both  parties ;  and  it  stated  that  the  iron 
was  sold  to  the  defendant,  and  specifies  the  price.  Mr.  Quain  says 
that  the  usual  form  of  handing  the  bought  note  to  the  purchaser  and 
the  sold  note  to  the  seller  was  not  complied  with  here  by  the  brokers, 
and  that  the  only  one  of  the  two  instruments  which  was  produced 
was  not  sufficient  to  satisfy  the  statute.  I  am  of  opinion  that  the  note 
produced  contained  a  memorandum  of  the  contract  between  the  parties, 
signed  by  their  agents  lawfully  authorized  as  required  by  the  statute. 
It  is  said  that  the  note  has  only  the  term  "  sold,"  and  has  not  the  term 
"purchased,"  but  the  relation  of  buyer  and  seller  cannot  come  into 
existence  without  there  has  been  a  purchase  as  well  as  a  sale  ;  and 
when  therefore  the  memorandum  says  "  sold,"  it  in  effect  says  also 
bought.  In  Sievewright  v.  Archibald,  17  Q.  B.  Rep.  103  ;  S.  C.  20  Law 
J.  Rep.  (n.  s.)  Q.  B.  529.  the  bought  and  sold  notes  differed,  and  so 
the  sufficiency  of  the  memorandum  of  the  contract  was  defeated  ;  but 
here  only  one  of  the  notes  was  produced,  which  therefore  distinguishes 
this  case  from  that  of  Sievewright  v.  Archibald.  I  am  of  opinion  that 
it  is  enough  for  the  plaintiff  to  produce  in  evidence  one  of  the  notes 
signed  by  a  person  acting  as  agent  for  both  parties,  and  I  think  that 
the  County  Court  judge  came  to  a  right  conclusion. 

"Williams,  J.  I  am  of  the  same  opinion.  It  appears  that  Bentley 
&  Co.  were  constituted  by  the  defendant  as  his  agents  to  purchase  the 
iron  for  him  on  certain  terms  ;  and  I  think  if  the  Statute  of  Frauds 
had  never  been  passed  there  was  clearly  evidence  of  a  sale  to  the 
defendant  of  the  iron  on  the  terms  stated  in  the  sold  note.  Then  is 
there  anything  in  that  statute  which  makes  it  invalid?  I  think  not, 
for  I  think  the  sold  note  is  a  memorandum  in  writing  of  the  contract, 
and  that  it  was  signed  by  the  authorized  agents  of  the  defendant.  My 
brother  Keating  has  gone  to  chambers,  but  he  desired  me  to  state  that 
he  concurs  in  this  judgment. 


926  GIBSON   V.   HOLLAND.  [CHAP.  VI. 

Willes,  J.  I  think  also  that  everything  has  been  done  which  the 
Statute  of  Frauds  requires.  If  in  ordinary  practice  the  bought  and 
sold  notes  were  different  things,  there  might  be  some  ground  for 
Mr.  Quain's  argument ;  but  it  is  well  known  that  in  ordinary  practice 
they  arc  identical,  the  one  being  a  copy  of  the  other,  and  therefore  it 
would  be  a  violent  assumption  to  assume  in  favor  of  the  defendant 
that  the  bought  note  was  a  very  different  one  from  the  sold  note, 
which  had  been  delivered  to  the  defendant  and  produced  by  him  at 
the  trial.  For  these  reasons  I  agree  with  what  was  held  by  Lord 
Denman  on  the  first  trial  of  Hawes  v.  Forster,  and  that  the  one  note 
put  in  evidence  is  to  be  presumed,  until  the  contrary  be  shown,  to 
represent  the  contract  between  the  parties. 

Judgment  for  the  respondent. 


GIBSON   and   Another  y.  HOLLAND. 
In  the  Common  Pleas,  November  9,  1865. 

[Reported  in  Law  Reports,  1  Common  Pleas,  1.] 

This  was  an  action  to  recover  the  price  of  a  horse  bargained  and 
sold  by  the  plaintiffs  to  the  defendant. 

Plea,  never  indebted. 

The  cause  was  tried  before  Willes,  J.,  at  the  Devonshire  summer 
assizes.  The  plaintiffs,  Gibson  and  Luke,  are  horse  dealers  at  Exeter. 
The  defendant  is  a  gentleman  who  occasionally  deals  in  horses. 
Having  heard  from  one  Rookes,  a  horse  dealer  of  Exeter,  that  the 
plaintiffs  had  a  mare  which  was  likely  to  suit  him,  and  having  seen  and 
approved  of  her,  the  defendant  authorized  Rookes  to  buy  her  for  him, 
if  he  could,  for  forty  guineas.  Rookes  accordingly  made  the  purchase 
at  that  price,  and  communicated  that  fact  to  the  defendant  in  a  letter, 
as  follows  :  — 

15th  May,  1865. 

I  have  heard  from  Mr.  Gibson  and  seen  Tom  Luke  this  morning 
respecting  the  bay  mare,  and  have  bought  her  for  forty  guineas.  Will 
you  therefore  forward  me  your  cheque,  with  instructions  how  she  is  to 
be  sent?  Wm.  Rookes. 

Receiving  no  reply,  Rookes  addressed  the  following  letters  on  the 
20th  and  2:3d  of  May,  1865,  respectively,  to  the  defendant:  — 

I  wrote  you  on  Monday  last  to  say  I  had,  in  accordance  with 
your  request,  purchased  Mr.  Gibson's  bay  mare  for  you  at  forty 
guineas,  requesting  you  would  send  me  a  cheque,  with  instructions  how 
to  forward  her.  Not  having  received  any  reply,  I  fear  you  must  have 
been  absent.  Please  send  me  cheque  at  once,  with  necessary  instruc- 
tions. Wm.  Rookes. 


SECT.  VII.]  GIBSON   V.    HOLLAND.  927 

I  cannot  but  express  my  surprise  at  not  having  received  any  reply  to 
my  letters  of  the  loth  and  20th.  In  the  first  I  informed  you  that  I  had 
purchased  Mr.  Gibson's  bay  mare;  and  in  the  second  I  asked  you  to 
send  a  cheque  for  the  same,  viz.,  £42,  in  order  that  I  may  settle  with 
him.  Mr.  Luke  has  called  again  this  morning;  and  it  makes  me  look 
very  foolish,  as  of  course  they  look  to  me  to  fulfil  my  contract ;  and  I 
hope  that  you  will  on  the  receipt  of  this  send  me  the  cheque,  with  the 
necessary  instructions  how  the  mare  is  to  be  forwarded. 

Wm.  Rookes. 

On  the  25th  of  Ma}',  1865,  the  defendant  wrote  to  Rookes,  as 
follows  :  — 

I  only  returned  home  yesterday  evening,  or  I  should  have  at  once 
answered  your  first  letter,  and  sent  you  a  cheque  for  the  marc  which 
you  were  kind  enough  to  buy  for  me.  I  am  glad  to  say  I  have  sold  her 
to  Mr.  Toynbee.  When  I  told  him  of  her,  he  said  he  knew  her  well, 
and  would  buy  her  from  me,  which  he  did  ;  and  3011  will  receive  a 
cheque  for  her  from  me  by  this  evening's  post. 

C.  Holland. 

On  the  2Gth  of  May,  Rookes  wrote  in  reply  to  the  last  letter :  — 

Mr.  Toynbee  has  never  seen  the  mare  that  you  have  purchased.  The 
one  he  alludes  to  I  sold  Mr.  Gibson  for  Sir  L.  P.,  and  she  is  not  for 
sale  at  an}*  price.  You  will  therefor  please  to  rectify  this  mistake,  and 
send  me  your  cheque,  as  it  is  a  fortnight  to-morrow  since  I  bought  her 
for  you,  and  she  has  been  standing  at  livery  ever  since. 

Wm.  Rookes. 

On  the  10th  of  June,  Rookes  wrote  again  to  the  defendant :  — 

Mr.  Gibson  and  Mr.  Luke  called  here  this  afternoon  ;  and  as  the}' 
have  both  failed  in  seeing  you  in  London,  they  now  call  upon  me  to 
complete  my  contract  for  the  sale  of  the  mare.  You  are  fully  aware 
that  you  commissioned  me  to  buy  the  mare  for  you  ;  and  had  I  thought 
there  would  have  been  any  trouble  or  annoyance,  I  should  have  had 
nothing  to  do  with  it ;  but,  simply  acting  as  your  agent,  I  must  request 
that  you  will  at  once  remit  me  your  cheque  for  £42,  cost  price,  together 
with  half  the  keep,  two  guineas,  as  it  is  a  month  ago  next  Monday  that 
I  bought  her  for  you,  and  she  has  been  standing  at  livery  ever  since, 
and  they  have  a  perfect  right  to  claim  the  whole  of  the  keep. 

Wm.  Rookes. 

On  the  16th  of  June,  Rookes  again  wrote  to  the  defendant :  — 

Messrs.  Gibson  &  Luke  have  been  and  seen  me  again  to-day  respect- 
ing the  bay  mare  which  you  told  me  to  purchase  from  them  for  you  ; 
and  they  have  threatened  me  with  an  action,  &c. 

Rookes,  having  on  the  17th  of  June  received  a  letter  from  the  plain- 
tiffs' attorneys,  demanding  payment  from  him  of  £46  alleged  to  be  due 


928  GIBSON    V.    HOLLAND.  [CHAP.  VI. 

from  him  for  a  brown  mare  sold  by  them  to  him,  and  her  keep,  sent  it 
to  the  defendant,  writing,  — 

This  morning's  post  brought  me  the  enclosed  from  Messrs.  Gibson  & 
Luke's  solicitors  ;  I  really  do  hope  that  you  will  not  allow  me  to  be  put 
to  any  further  trouble  or  annoyance  in  this  most  unpleasant  matter, 
but  at  once  remit  your  cheque  either  to  me.  [a&'c]  If  they  sue  me,  I 
have  no  alternative  but  to  sue  them  or  you. 

On  the  part  of  the  defendant  it  was  objected  that  there  was  no  con- 
tract in  writing  to  satisfy  the  17th  section  of  the  Statute  of  Frauds. 
For  the  plaintiffs  it  was  insisted  that  the  correspondence  amounted  to  a 
contract,  or  at  all  events  to  a  sufficient  memorandum  of  a  contract  to 
charge  the  defendant. 

Under  the  direction  of  the  learned  judge  a  verdict  was  found  for 
the  plaintiffs  for  the  sum  claimed,  reserving  to  the  defendant  leave  to 
move. 

Karslake,  Q.  C,  moved  to  enter  a  nonsuit. 

Erle,  C.  J.  I  am  of  opinion  that  there  should  be  no  rule.  The 
contract  for  the  purchase  of  the  mare  in  question  was  made  by  Rookes. 
If  Rookes  was  the  agent  of  both  parties,  there  was  nothing  to  reserve  ; 
therefore  I  place  no  reliance  on  that.  But  I  am  of  opinion  that  the 
letters  put  in,  taken  together,  do  amount  to  a  sufficient  note  or  memo- 
randum of  the  contract  within  the  17th  section  of  the  Statute  of 
Frauds.  Apart  from  the  statute,  it  is  beyond  doubt  that  Rookes  made 
a  contract  on  behalf  of  the  defendant  to  buy  the  plaintiffs'  mare. 
The  defendant  relies  upon  the  17th  section,  which  enacts  that  no  con- 
tract for  the  sale  of  any  goods,  &c,  for  the  price  of  £10  or  upwards, 
shall  be  allowed  to  be  good,  except  the  buyer  shall  accept  part  of  the 
goods  so  sold  and  actually  receive  the  same,  or  give  something  in 
earnest  or  part  payment,  or  unless  "  some  note  or  memorandum  in 
writing  of  the  said  bargain  be  made  and  signed  b}-  the  parties  to  be 
charged  by  such  contract  or  their  agents  thereunto  lawfully  author- 
ized." The  defendant's  letters  amount  to  a  clear  admission  that 
Rookes  did  make  on  his  behalf  the  contract  which  is  described  in  that 
correspondence.  But  the  objection  relied  on  is  that  the  note  or  mem- 
orandum of  that  contract  was  a  note  passing  between  the  defendant, 
the  party  sought  to  be  charged,  and  his  own  agent,  and  not  between 
the  one  contracting  party  and  the  other.  The  object  of  the  Statute 
of  Frauds  was  the  prevention  of  perjury  in  the  setting  up  of  contracts 
by  parol  evidence,  which  is  easily  fabricated.  With  this  view  it 
requires  the  contract  to  be  proved  by  the  production  of  some  note  or 
memorandum  in  writing.  Now  a  note  or  memorandum  is  equally 
corroborative,  whether  it  passes  between  the  parties  to  the  contract 
themselves  or  between  one  of  them  and  his  own  agent.  Indeed  one 
would  incline  to  think  that  a  statement  made  by  the  party  to  his  own 
agent  would  be  the  more  satisfactory  evidence  of  the  two.  Then 
how  stand  the   authorities  on   the  subject?     In   Leroux  v.  Brown,  12 


SECT.  VII.]  GIBSON    V.    HOLLAND.  929 

C.  B.  818,  22  L.  J.  (C.  P.)  1,  in  support  of  the  position  that  a  letter 
addressed  by  the  defendant  to  a  third  person,  containing  an  admission 
of  a  contract  with  t lie  plaintiff,  will  be  enough  to  charge  the  former, 
Sir  (1.  Ilonyman  refers  to  Sugden's  V.  &  P.  (11th  ed.)  122,  where  it  is 
said  that  "  a  note  or  letter  written  by  the  vendor  to  any  third  person, 
containing  directions  to  cany  the  agreement  into  execution,  will  be  a 
sufficient  agreement  to  take  a  case  out  of  the  statute  ;  "  and  for  this  the 
learned  author  vouches  Lord  Ilardwieke,  who  in  Welford  v.  Beazery,  3 
Atk.  503,  says  :  "  The  meaning  of  the  statute  is  to  reduce  contracts  to 
a  certainty,  in  order  to  avoid  perjury  on  the  one  hand  and  fraud  on  the 
other;  and  therefore,  both  in  this  court  and  the  courts  of  common  law, 
where  an  agreement  has  been  reduced  to  such  a  certainty,  and  the  sub- 
stance of  the  statute  has  been  complied  with  in  the  material  part,  the 
forms  have  never  been  insisted  on.  Hawkins  v.  Holmes,  1  P.  Wins. 
770.  There  have  been  cases  where  a  letter  written  to  a  man's  own 
agent,  and  setting  forth  the  terms  of  an  agreement  as  concluded  by 
him,  has  been  deemed  to  be  a  signing  within  the  statute,  and  agreeable 
to  the  provisions  of  it."  See  Clerk  v.  Wright,  1  Atk.  12.  Sir  E.  Sug- 
den  goes  on  to  say  that  "  the  point  was  expressly  determined  in  the 
year  1719  in  the  Court  of  Exchequer.  Upon  an  agreement  for  an 
assignment  of  a  lease,  the  owner  sent  a  letter  specifying  the  agreement 
to  a  scrivener,  with  directions  to  draw  an  assignment  pursuant  to  the 
agreement ;  and  Chief  Baron  Bur}',  Baron  Price,  and  Baron  Page  were 
of  opinion  that  the  letter  was  a  writing  within  the  Statute  of  Frauds." 
Smith  v.  Watson,  Bunb.  55.  These  cases,  it  is  true,  arose  upon  the 
4th  section  of  the  statute,  but  the  analog}'  holds  equally  good  as  to  the 
17th  section.  In  the  case  referred  to  b}*  my  brother  Willes,  of  Bailey 
v.  Sweeting,  9  C.  B.  (n.  s.)  843,  30  L.  J.  (C.  P.)  150,  this  court  went 
very  fully  into  the  general  doctrine,  and  came  to  the  conclusion  that  a 
letter  which  contained  an  admission  of  the  bargain,  and  of  all  the  sub- 
stantial terms  of  it,  was  a  sufficient  note  or  memorandum  of  the  contract 
to  satisfy  the  17th  section,  notwithstanding  the  writer  repudiated  his 
liability.  To  satisfy  the  statute,  you  must  have  the  oral  statement  of 
the  contract  corroborated  by  an  acceptance  of  part  of  the  goods  or  a 
part  payment  of  the  price,  or  you  must  have  some  note  or  memorandum 
in  writing  of  the  bargain.  Tf  so,  the  danger  of  perjury,  which  the 
statute  was  designed  to  exclude,  is  abundantly  guarded  against  if  there 
be  a  written  statement  of  the  terms  of  the  contract,  signed  by  the  party 
to  be  charged,  made  to  an  agent.  For  these  reasons  I  feel  bound  to 
hold  that  the  requirements  of  the  statute  have  been  complied  with  in 
this  case,  and  consequently  that  there  should  be  no  rule. 

Willes,  J.  I  agree.  The  statute  in  §  17  imposes  it  as  a  condi- 
tion to  the  validity  of  a  contract  for  the  sale  of  goods  for  the  price 
of  £10  and  upwards,  either  that  there  shall  be  an  acceptance  of  part 
of  them,  or  that  something  shall  be  given  as  earnest  or  in  part  pay- 
ment of  the  price,  or  that  there  shall  be  some  note  or  memorandum 
in  writing  of  the  bargain,  signed  by  the  party  to  be  charged  or  by  his 

69 


930  GIBSON    V.    HOLLAND.  [CHAP.  VI. 

lawfully  authorized  agent.  Whether  Rookes  was  the  agent  of  the 
plaintiffs  as  well  as  of  the  defendant,  I  do  not  stop  to  inquire.  But  I 
think  the  series  of  letters,  read  together,  contains  a  statement  of  the 
bargain,  and  an  admission  by  the  defendant  that  Rookes  bought  the 
mare  of  the  plaintiffs  on  behalf  of  the  defendant  and  for  the  price 
mentioned  therein.  The  parties  are  named  in  a  writing  signed  by  the 
person  who  is  sought  to  be  charged  ;  and  the  subject-matter  of  the 
contract  and  the  price  are  both  mentioned.  Nothing  is  wanting  to 
make  a  complete  memorandum  of  the  bargain,  unless  it  be  necessary 
that  the  document  should  be  addressed  to  the  person  who  is  to  take 
advantage  of  it.  I  apprehend  the  17th  section  imposes  no  such  con- 
dition. Both  the  4th  and  the  17th  sections  seem  to  be  framed  for  the 
purpose  of  absolving  contracting  parties  from  liability,  unless  under 
§  4  the  agreement  upon  which  the  action  is  brought,  or  some  mem- 
orandum or  note  thereof,  shall  be  in  writing  and  signed,  &c,  or  under 
§  17  unless  there  be  acceptance  or  part  payment,  or  some  note  or  mem- 
orandum in  writing  of  the  bargain  made  and  signed  by  the  party  to  be 
charged  thereby,  —  the  words  of  the  latter  clause  not  bearing  quite  so 
comprehensive  a  meaning  as  those  of  the  former.  Taking  the  17th 
section,  which  stands  upon  a  different  footing  from  the  4th  in  the  par- 
ticulars which  called  for  the  interference  of  the  Legislature  in  the  recent 
Mercantile  Law  Amendment  Act,  19  &  20  Vict.  c.  97,  and  on  which 
our  judgment  must  proceed,  there  is  a  total  absence  of  an}'  indication 
of  intention  that  the  note  or  memorandum  must  be  addressed  or  de- 
livered to  the  person  who  is  to  have  a  remedy  upon  it :  all  the  section 
requires  is  that  there  shall  be  written  evidence  of  the  contract.  Pro- 
vided you  have  in  writing  an  admission  by  the  party  to  be  charged  of 
the  bargain  having  been  made,  the  requirement  of  the  statute  is  satis- 
fied, though  the  memorandum  does  not  show  a  contract  in  the  sense  of 
its  being  a  complete  agreement,  and  intended  to  be  the  exclusive  evi- 
dence of  the  right  on  one  side  and  of  the  liability  on  the  other,  as  the 
final  written  agreement  between  the  parties  would  be.  This  section 
uses  a  word  which  seems  to  afford  a  key  to  its  construction  ;  it  requires 
that  there  shall  be,  not  an}'  particular  kind  of  memorandum,  but  "  some 
note  or  memorandum  of  the  bargain."  There  is  a  note  or  memorandum 
of  the  bargain  in  this  case.  I  cannot  help  thinking  that  Bailey  v. 
Sweeting,  9  C.  B.  (n.  s.)  843,  30  L.  J.  (C.  P.)  150,  disposes  of  this  case, 
because,  though  the  memorandum  there  did  not  show  a  contract  in  the 
sense  of  an  agreement,  inasmuch  as  the  defendant  in  terms  repudiated 
his  liability,  yet  as  the  letter  contained  evidence  of  the  terms  upon  which 
he  had  once  contracted  to  be  bound  it  was  properly  held  to  be  a  suffi- 
cient memorandum  to  satisfy  the  statute.  Great  difficulty  has  arisen  as 
to  the  construction  of  this  section,  as  being  applied  to  evidence  only  ; 
and  I  have  on  former  occasions  expressed  the  inability  I  felt  to  under- 
stand the  case  of  Leroux  v.  Brown,  12  C.  B.  801,  22  L.  J.  (C.  P.)  1, 
though  of  course  we  arc;  bound  by  it.  It  affords  however  a  remarkable 
confirmation  of  the  correctness  of  the  construction  we  now  put  upon  the 


SECT.  VII.]  NOBLE   V.   WARD.  931 

statute,  however  questionable  some  persons  may  have  thought  the 
decision  to  he.  There  is  another  difficulty.  It  has  been  held  that 
the  memorandum  must  exist  before  the  action  is  brought.  Bill  v. 
Bament,  9  M.  &  W.  30.  This  would  seem  to  show  that  the  memoran- 
dum is  in  some  way  to  stand  in  the  place  of  a  contract.  But  I  cannot 
help  thinking  that  the  courts  in  deciding  cases  of  that  description  con- 
sidered the  intention  of  the  Legislature  to  he  of  a  mixed  character, — 
that  it  was  intended  to  protect  persons  from  actions  being  brought 
against  them  to  enforce  contracts  of  which  there  was  no  evidence  in 
writing,  and  that  the  written  evidence  should  be  existing  at  the  time 
when  the  action  is  instituted,  it  is  too  late  however  now  to  object  to 
those  cases.  I  come  round  to  the  section  itself.  There  is  no  authority 
which  compels  us  to  accede  to  the  construction  which,  Mr.  Karslake  asks 
us  to  put  upon  it.  There  is  no  reason  for  it;  and  I  think  it  would  be 
doing  violence  to  the  language  used.  I  think  the  letters  in  question  do 
constitute  a  sufficient  memorandum  of  the  contract  to  answer  all  the 
requirements  of  the  statute. 

Byles,  J.,  who  had  not  heard  the  whole  of  the  argument,  expressed 
no  opinion. 

Keating,  J.,  concurred.  Rule  refused. 


NOBLE  v.   WARD   and  Others. 
In  the  Exchequer,  January  12,  1866. 

[Reported  in  Law  Reports,  1  Exchequer,  117.] 

In  the  Exchequer  Chamber,  February  8,  1867. 

[Reported  in  Law  Reports,  2  Exchequer,  155.] 

Action  for  non-acceptance  of  goods.  The  first  count  of  the  declara- 
tion stated  that  it  was  agreed  between  the  plaintiff  and  the  defendants 
that  the  plaintiff  should  sell  and  deliver  to  them,  and  that  they  should 
accept  from  him  within  a  certain  agreed  period,  which  had  elapsed 
before  action,  a  quantity  of  cloth  at  certain  prices  therefor  to  be  paid 
by  the  defendants,  and  then  agreed  upon  between  the  plaintiff  and  the 
defendants  ;  yet  the  defendants  refused  to  accept  or  pay  for  the  cloth, 
although  all  things  were  done,  &c.,  whereby  the  plaintiff  lost  the 
difference  between  the  agreed  price  and  the  iower  price  to  which 
the  goods  sold  fell.  The  second  count  was  for  money  payable  for 
goods  bargained  and  sold,  goods  sold  and  delivered,  and  for  money 
due  on  accounts  stated. 

The  defendants,  as  to  the  first  count,  pleaded:  (\)  Nbn  assumpsit; 
(2)  Traverse  that  the  plaintiff  was  ready  and  willing  to  deliver  the 
cloth  within  the  agreed  period;  (3)  That  it  was  one  of  the  terms  of 
the  alleged  agreement  that  the  cloth  agreed  to  be  sold  and  delivered 
should  be  of  the  same  material  and  as  well  made  as  a  sample  piece 


932  NOBLE   V.    WARD.  [CHAP.  VI. 

then  shown  and  delivered  by  the  plaintiff  to  the  defendants  ;  and  that 
the  plaintiff  was  not  ready  and  willing  to  deliver  cloth  of  the  same 
material  and  as  well  made  as  the  sample  piece  ;  (4)  Rescission  of  the 
alleged  agreement ;  (5)  To  the  second  count,  never  indebted.  Issues 
thereon. 

The  cause  was  tried  before  Bramwell,  B.,  at  the  Manchester  summer 
assizes,  1865,  when  the  following  facts  were  proved  :  — 

The  plaintiff  is  a  manufacturer,  and  the  defendants  are  merchants 
at  Manchester.  On  the  12th  August,  1864,  the  defendants  gave  to  the 
plaintiff's  agent  an  order  for  500  pieces  of  32-inch  gray  cloth  at  38s. 
9(7.,  and  1000  pieces  of  35-inch  gray  cloth  at  42s.  l^d.,  the  deliveries  to 
commence  in  three  weeks,  and  to  be  completed  in  eight  to  nine  weeks. 
On  the  18th  of  the  same  month  a  second  order  was  given  by  the 
defendants  for  500  pieces  of  32-inch  gray  cloth  at  39s.,  and  100  pieces 
of  35-inch  gray  cloth  at  42s.  3cL,  to  be  delivered  "  to  follow  on  after 
order  given  12th  instant,  and  complete  in  ten  to  twelve  weeks."  The 
plaintiff  on  the  10th  and  19th  September  made  a  first  and  second 
delivery  on  account  of  the  first  order.  Considerable  discussion  ensued 
both  as  to  the  time  of  delivery  and  as  to  the  quality  of  the  goods 
delivered  ;  and  eventually,  on  the  27th  September,  the  plaintiff  had  an 
interview  with  the  defendants,  at  which  it  was  agreed  that  the  goods 
delivered  under  the  first  order  should  be  taken  back,  that  that  order 
should  be  cancelled,  and  that  the  time  for  delivering  the  goods  under 
the  second  order  should  be  extended  for  a  fortnight.  Goods  were 
tendered  to  the  defendants  by  the  plaintiff  in  time  either  for  the  ful- 
filment of  the  agreement  of  the  18th  August  or  of  that  of  the  27th 
September ;  but  the  defendants  refused  to  accept  them  on  various 
grounds,  —  amongst  others,  on  the  ground  that  they  were  not  of  the 
stipulated  quality.  The  plaintiff  thereupon  brought  this  action.  The 
declaration  was  framed  so  as  to  fit  either  the  agreement  of  the  18th 
August  or  that  of  the  27th  September.  The  learned  judge  directed  a 
nonsuit  to  be  entered,  being  of  opinion  that  the  contract  of  the  18th 
August  was  no  longer  in  existence,  the  parol  agreement  of  the  27th 
September  having  rescinded  it ;  and  that  the  latter  agreement  could 
not  be  resorted  to,  not  being  in  writing  in  accordance  witli  §  17  of  the 
Statute  of  Frauds,  29  Car.  2,  c.  3.  That  section  provides  that  "  no 
contract  for  the  sale  of  any  goods,  wares,  or  merchandises,  for  the 
price  of  £10  sterling  or  upwards,  shall  be  allowed  to  be  good  .  .  . 
unless  some  memorandum  or  note  in  writing  of  the  said  bargain  be 
made  and  signed  by  the  parties  to  be  charged  with  such  contract  or 
their  agents  thereuntoTawfully  authorized." 

Holker  and  Baylis  showed  cause. 

Mellish,  Q.  C,  in  support  of  the  rule.  Our.  adv.  vult. 

The  judgment  of  the  court  (Pollock,  C.  B.,  Bramwell,  Channell, 
and  I'h. dir,  BB.)  was  delivered  by 

Bramwell,   1!.     This  case  was  tried  before  me  at  Manchester,  and 


SECT.  VII.]  NOBLE    V.   WARD.  933 

the   plaintiff  was  nonsuited.     The  case  comes  before  us  on  a  rule  to 

set  aside  the  nonsuit.  1  think  it  was  wrong,  at  least  on  the  ground  on 
which  it  proceeded.  The  action  was  for  not  accepting  goods  on  a  sale 
by  the  plaintiff  to  the  defendants.  The  defendants  pleaded  among 
oilier  tilings  that  the  contract  had  been  rescinded,  and  that  the  plain- 
tiff was  not  ready  and  willing  to  deliver.  The  facts  were  that  a 
contract  for  the  sale  and  delivery  of  goods  from  the  plaintiff  to  the 
defendants,  at  a  future  day,  was  entered  into  on  the  12th  of  August, 
which  may  be  called  contract  A  ;  that  another  contract  for  sale  and 
delivery  was  entered  into  on  the  18th  of  August,  say  contract  B;  that 
before  any  of  the  days  of  delivery  had  arrived  the  plaintiff  and  defend- 
ants agreed  verbally  to  rescind  or  do  away  with  contract  A,  and  to 
extend  for  a  fortnight  the  time  for  the  performance  of  contract  B  ; 
that  is  to  say,  the  plaintiff  had  a  fortnight  longer  to  deliver,  and  the 
defendants  a  fortnight  longer  to  take  and  pay  for  those  goods.  This 
on  principle  and  authority  was  a  third  contract,  call  it  C.  It  was  a 
contract  in  which  all  that  was  to  be  done  and  permitted  on  one  side 
was  the  consideration  for  all  that  was  to  be  done  and  permitted  on 
the  other.  (See  jirr  Parke,  B.,  in  Marshall  v.  Lynn,  G  M.  &  W. 
117.)  It  remains  to  add  that  the  declaration  would  fit  either  con- 
tract B  or  contract  C,  and  that  goods  were  tendered  by  the  plaintiff 
to  the  defendants  in  time  for  either  of  those  contracts.  My  notes 
and  my  recollection  of  my  ruling  are  that  contract  B  was  rescinded, 
and  contract  C  not  enforceable,  not  being  in  writing.  I  think  that 
was  wrong.  Either  contract  C  was  within  the  Statute  of  Frauds,  or 
not.  If  not,  there  was  no  need  for  a  writing;  if  yes,  it  was  because 
it  was  a  contract  for  the  sale  of  goods,  and  so  within  the  17th  section 
of  the  statute.  That  says  that  no  contract  for  the  sale  of  goods  for 
the  price  of  £10  or  upwards  shall  be  allowed  to  be  good,  except 
there  is  an  acceptance,  payment,  or  writing.  The  expression  "allowed 
to  be  good  "  is  not  a  very  happy  one  ;  but  whatever  its  meaning  may 
be,  it  includes  this  at  least,  that  it  shall  not  be  held  valid  or  enforced. 
But  this  is  what  the  defendant  was  attempting  to  do.  He  was  setting 
up  this  contract  C  as  a  valid  contract.  He  was  asking  that  it  should 
be  allowed  to  be  good  to  rescind  contract  B. 

It  is  attempted  to  say  that  what  took  place  when  contract  C  was 
made  was  twofold:  first,  that  the  old  contracts  were  given  up;  sec- 
ondly, a  new  one  was  made.  But  that  is  not  so.  What  was  done 
Aviis  all  done  at  once,  —  was  all  one  transaction,  — one  bargain  ;  and 
had  the  plaintiff  asked  for  a  writing  at  the  time,  and  the  defendants 
refused  it,  it  would  all  have  been  undone,  and  the  parties  remitted 
to  their  original  contract. 

I  think  therefore  that  on  principle  it  was  wrong  to  hold  that  the 
old  contract  was  gone.  Moore  v.  Campbell,  10  Ex.  323,  23  L.  J. 
(Ex.)  310,  is  an  authority  to  the  same  effect.  It  is  true  that  case 
may  be  distinguished  on  the  facts  ;  namely,  that  there  what  was  to  be 
done  under   the  new  arrangement  in  lieu  of  the  old  was  to  be  done  at 


934  NOBLE   V.    WARD.  [CHAP.  VI. 

the  same  time,  so  that  it  might  well  be  the  parties  meant,  not  that  the 
new  thing  should  be  done,  but  if  done  it  should  be  in  lieu  of  the  old. 
Such  an  argument  could  not  be  used  in  this  case.  But  it  was  not  the 
ground  of  the  judgment  there,  which  is  that  the  new  agreement  was 
void.  The  case  of  Goss  v.  Lord  Nugent,  5  B.  &  Ad.  58,  Stead  v. 
Dawber,  10  Ad.  &  E.  57,  and  others,  only  show  that  the  new  con- 
tract C  cannot  be  enforced,  not  that  the  old  contract  B  is  gone.  I 
think  it  was  not.  Inconvenience  and  absurdity  may  arise  from  this. 
For  instance,  if  the  defendants  signed  the  new  contract,  and  not  the 
plaintiff,  the  plaintiff  would  be  bound  to  the  old  and  the  defendants  to 
the  new.  Or  if  in  the  course  of  the  cause  a  writing  turned  up  signed 
by  the  plaintiff,  then  they  could  first  rely  on  the  old  and  afterwards 
on  the  new  contract.  But  this  is  no  more  than  may  happen  in  any 
case  within  the  17th  section,  where  there  has  been  one  contract 
only. 

But  then  it  was  said  before  us  that  the  plaintiff  was  not  ready  and 
willing  to  deliver  under  contract  B.  Probably  not,  and  he  supposed 
contract  C  was  in  force.  In  answer  to  this,  the  plaintiff  contended 
before  us  that  this  point  was  not  made  at  the  trial ;  to  which  the 
defendants  replied,  Neither  was  the  point  that  the  old  contract  was  in 
force.  My  recollection  is  so,  —  that  the  case  was  opened  and  main- 
tained as  on  the  new  contract,  —  but  I  agree  with  Mr.  Mellish  that  a 
nonsuit  ought  to  be  maintained  on  a  point  not  taken  at  the  trial  only 
when  it  is  beyond  all  doubt.  I  cannot  say  this  is.  Consequently  I 
think  the  rule  should  be  absolute  ;  but  under  the  circumstances  the 
costs  of  both  parties  of  the  first  trial  ought  to  abide  the  event  of  the 
second. 

Channell,  B.  The  case  in  my  brother  Bramwell's  opinion  turning 
on  what  was  his  own  impression,  he  was  desirous  that  this  judgment 
should  be  read  as  his  own  judgment.  But  I  am  authorized  by  the 
Lord  Chief  Baron  and  by  my  brother  Pigott  to  say  that,  although  I 
have  read  it  as  the  judgment  of  my  brother  Bramwell,  it  is  a  judgment 
in  which  we  all  agree.  Rule  absolute. 

The  defendants  appealed  from  the  foregoing  decision  to  the  Ex- 
chequer Chamber. 

Holker  (Baylis  with  him),  for  the  appealing  defendants. 

Mellish,  Q.  C.  (Jones,  Q.  C,  with  him),  for  the  plaintiff. 

\\  ii.i.ks,  J.  This  is  an  appeal  from  the  judgment  of  the  Court  of 
Exchequer,  making  absolute  a  rule  to  set  aside  a  nonsuit,  and  for  a  new 
trial.  The  action  was  brought  for  non-acceptance  of  goods  pursuant 
to  a  contract  dated  the  18th  of  August,  by  which  the  goods  were  to 
be  delivered  in  a  certain  time.  The  defendants  pleaded  that  the  con- 
tract was  rescinded  by  mutual  consent.  At  the  trial  they  established 
that,  on  the  27th  of  September,  before  any  breach  of  that  contract,  it 
agreed  between  the  plaintiff  and  the  defendants  that  a  previous 
coutracl   of  the    12th  of  August  should  be  rescinded  (as  to  which  no 


SECT.  Vir.]  NOBLE    V.    WARD.  935 

question  is  made),  that  the  time  for  delivering  under  the  contract  of 
the  18th  should  be  extended  for  a  fortnight;  and  other  provisions 
were  made  as  to  taking  back  certain  goods,  which  we  need  not  further 
notice.  The  contract  of  the  27th  of  September,  however,  was  invalid, 
for  want  of  compliance  with  the  formalities  required  by  §  17  of  the 
Statute  of  Frauds.  The  defendants  contended  that  the  effect  of  the 
contract  to  extend  the  time  for  delivery  was  to  rescind  the  contract  of 
the  18th  of  August ;  and  if  the  former  contract  had  been  in  a  legal  form, 
so  as  to  be  binding  on  the  parties,  that  contention  might  have  been 
successful,  so  far  as  the  change  in  the  mode  of  carrying  out  a  contract 
can  be  said  to  be  a  rescission  of  it ;  but  the  defendants  maintained 
that  the  effect  was  the  same,  although  the  contract  was  invalid.  In 
setting  aside  the  nonsuit  directed  by  the  learned  judge  who  tried 
the  cause,  the  Court  of  Exchequer  dissented  from  that  view,  and  held 
that  what  took  place  on  the  27th  must  be  taken  as  an  entirety,  that 
the  agreement  then  made  could  not  be  looked  on  as  valid,  and  that 
no  rescission  could  be  effected  by  an  invalid  contract.  And  we  are  of 
opinion  that  the  Court  of  Exchequer  was  right.  Mr.  Ilolker  has  con- 
tended that,  though  the  contract  of  the  27th  of  September  cannot  be 
looked  on  as  a  valid  contract  in  the  way  intended  by  the  parties,  yet 
since,  if  valid,  it  would  have  had  the  effect  of  rescinding  the  con- 
tract of  the  18th,  and  since  the  parties  might  have  entered  into  a  mere 
verbal  contract  to  rescind  simpliciter,  we  are  to  say  that  what  would 
have  resulted  if  the  contract  had  been  valid  will  take  place  though 
the  contract  is  void  ;  or,  in  other  words,  that  the  transaction  will  have 
the  effect  which,  had  it  been  valid,  the  parties  would  have  intended 
though  without  expressing  it,  although  it  cannot  operate  as  they 
intended  and  expressed.  But  it  would  be  at  least  a  question  for  the 
jury,  whether  the  parties  did  intend  to  rescind,  —  whether  the  trans- 
action was  one  which  could  not  otherwise  operate  according  to  their 
intention  ;  and  a  material  fact  on  that  point  is  that,  while  they  simply 
rescinded  the  contract  of  the  12th  of  August,  they  simply  made  a 
contract  as  to  the  carrying  into  effect  that  of  the  18th,  though  in  a 
mode  different  from  what  was  at  first  contemplated.  It  is  quite  in 
accordance  with  the  cases  of  Doe  d.  Egremont  <>  Courtenay,  11  Q.  B. 
702,  and  Doe  d.  Biddulph  v.  Poole,  11  Q.  B.  713,  overruling  the 
previous  decision  of  Doe  d.  Egremont  /*.  Forwood,  3  Q.  B.  027  (see 
11  Q.  B.  723),  to  hold  that,  where  parties  enter  into  a  contract 
which  would  have  the  effect  of  rescinding  a  previous  one,  but  which 
cannot  operate  according  to  their  intention,  the  new  contract  shall 
not  operate  to  affect  the  previously  existing  rights.  This  is  good 
sense  and  sound  reasoning,  on  which  a  jury  might  at  least  hold  that 
there  was  no  such  intention.  And  if  direct  authority  were  wanted  to 
sustain  this  conclusion,  it  is  supplied  by  Moore  v.  Campbell,  10  Ex. 
323,  23  L.  J.  (Fx.)  310,  where  upon  a  plea  of  rescission  the  very 
point  was  taken  by  Sir  Hugh  Hill,  who  would  no  doubt  have  made  it 
good,  had   it   been  capable  of   being  established.      With   reference  to 


936  VANDENBERGH   V.    SPOONER.  [CHAP.  VI. 

his  argument  that  the  contract  was  rescinded,  Parke,  B.,  said  (10 
Ex.  at  p.  332)  :  "  We  do  not  think  that  this  plea  was  proved  by  the 
evidence.  The  parties  never  meant  to  rescind  the  old  agreement 
absolutely,  which  the  plea,  we  think,  imports.  If  a  new  valid  agree- 
ment substituted  for  the  old  one  before  breach  would  have  supported 
the  plea  we  need  not  inquire  ;  for  the  agreement  was  void,  there  being 
neither  note  in  writing,  nor  part  payment,  nor  delivery  nor  acceptance 
of  part  or  all."  And  he  adds:  "  This  was  decided  by  the  cases  of 
Stead  v.  Dawber,  10  Ad.  &  E.  57,  and  Marshall  v.  Lynn,  6  M.  &  W. 
109."  As  to  the  cases  cited  from  East,  too  much  importance  has 
been  attached  to  them.  The  first  case,  Hill  v.  Patton,  8  East,  373, 
amounts  to  no  more  than  this:  that  the  court  was  bound  to  construe 
the  contract  before  it  without  regard  to  the  stamp  ;  and  having  done 
so,  then  to  see  how  the  Stamp  Acts  operated  upon  it.  In  the  second 
case,  French  v.  Patton,  9  East,  351,  it  was  held  that  although  the 
Stamp  Acts  operated  to  prevent  the  plaintiff  from  recovering  upon  the 
policy  as  altered,  that  circumstance  could  not  enable  him  to  recover 
upon  it  in  its  original  form,  when  he  had  himself  consented  to  the 
alteration  of  the  written  words. 

Blackburn,  Mellor,  Montague  Smith,  and  Lush,  J.I.,  concurred. 

Judgment  affirmed. 


VANDENBERGH   v.   SPOONER. 
In  the  Exchequer,  June  12,  1866. 

[Reported  in  Law  Reports,  1  Exchequer,  316.] 

This  was  an  action  for  goods  bargained  and  sold,  tried  before  Bram- 
well,  B.,  at  the  sittings  at  Westminster  in  last  Hilary  term.  The 
plaintiff  had  purchased  at  a  sale  of  wreck  a  quantity  of  marble:  this 
the  defendant  agreed  to  buy,  but  afterwards  repudiated  his  bargain  and 
refused  payment.  The  value  of  the  goods  was  above  £10.  and  the  only 
note  or  memorandum  of  the  contract  in  writing  signed  by  the  defendant 
was  as  follows:  "  D.  Spooner  agrees  to  buy  the  whole  of  the  lots  of 
marble  purchased  by  Mr.  Vandenbergh,  now  lying  at  the  Lyme  Cobb,  at 
Is.  per  foot.     (Signed)  D.  Spooner.'" 

Evidence  was  also  given  to  the  effect  that,  after  the  defendant  had 
signed  this  document,  he  wrote  out  what  he  alleged  to  be  a  copy  of  it, 
which  at  his  request  the  plaintiff,  supposing  it  to  be  a  genuine  copy, 
signed.  This  was  in  the  following  words  :  "  Mr.  J.  Vandenbergh  agrees 
to  sell  to  W.  1).  Spooner  the  several  lots  of  marble  purchased  by  him, 
now  lying  at  Lyme,  at  Is.  the  cubic  foot,  and  a  bill  at  one  month. 
(Signed)  Julius  Vandenbergh."  The  jury  however  were  of  opinion  that 
the  first  document  stated  the  contract  actually  made,  and  found  a  ver- 
dict for  the  plaintiff  for  £;3.~j,  leave  being  reserved  to  the  defendant  to 
move  to  enter  a  nonsuit  on  the  ground  (amongst  others)  that  there  was 


SECT.  VI.]  NEWELL  V.   RADFORD.  937 

no  sufficient  note  or  memorandum  of  the  contract  within  the  .Statute  of 
Frauds. 

Huddleston,  Q.  C,  and  Hannen,  showed  cause. 

Karslake,  Q.  C.,  and  Kingdom.,  in  support  of  the  rule. 

Cur.  ado.  vult. 

The  judgment  of  the  court  (Pollock,  C.  B.,  Martin,  Bramwell,  and 
Channell,  I>1  J.)  was  delivered  by 

Bramwell,  B.  The  question  we  have  had  to  consider  in  this  case 
is  whether  the  document  relied  on  by  the  plaintiff  was  a  sufficient  note 
or  memorandum  in  writing  to  bind  the  defendant  under  §  17  of  the 
Statute  of  Frauds.  The  document  was  signed  by  the  defendant,  and 
was  in  the  following  terms:  "  D.  Spooner  agrees  to  buy  the  whole  of 
the  lots  of  marble  purchased  by  Mr.  Vandenbergh,  now  lying  at  the 
Lyme  Cobb,  at  Is.  per  foot."  Can  the  essentials  of  the  contract  be 
collected  from  this  document  by  means  of  a  fair  construction  or  reason- 
able intendment?  We  have  come  to  the  conclusion  that  they  cannot, 
inasmuch  as  the  seller's  name  as  seller  is  not  mentioned  in  it,  but 
occurs  only  as  part  of  the  description  of  the  goods. 

Martin,  B.  I  am  not  well  satisfied  as  to  what  is  the  real  meaning 
of  the  document,  but  1  am  not  prepared  to  differ  from  the  rest  of  the 
court.  Hide  absolute. 


NEWELL  v.    RADFORD. 
In  the  Common  Pleas,  November  5,  1867. 

[Reported  in  Law  Reports,  3  Common  Pleas,  52.] 

Declaration  for  non-delivery  of  32  sacks  of  flour. 

Plea,  noii  assumpsit. 

The  case  was  tried  before  Kelly.  C.  B.,  at  Merionetshire  summer  as- 
sizes, when  it  was  proved  that  the  plaintiff  was  a  baker,  and  the  defend- 
ant a  flour  dealer;  and  that  John  Williams,  a  duly  authorized  agent  of 
the  defendant,  had  called  on  the  plaintiff  and  solicited  orders,  and  had 
made  the  following  entry  in  one  of  the  plaintiff's  books:  — 

Mr.  Newell,  32  sacks  culasses  at  39s.,  280  lbs.,  to  wait  orders. 

June  8.  John  Williams. 

The  plaintiff  subsequently  gave  orders  for  the  delivery  of  part  of  the 
flour;  but  the  defendant  refused  to  deliver  it.  A  correspondence  was 
put  in.  which  had  taken  place  subsequently  to  the  purchase  between  the 
plaintiff  and  defendant  respecting  the  delivery  of  the  flour. 

A  verdict  was  found  for  the  plaintiff  for  £20,  and  leave  was  reserved 
to  the  defendant  to  move  to  enter  a  nonsuit  or  a  verdict  on  the  ground 
that  there  was  no  sufficient  memorandum  of  the  contract  to  satisfy  the 
Statute  of  Frauds. 


933  NEWELL   V.    RADFORD.  [CHAP.  VL 

Bovill,  C.  J.  In  this  case  it  is  not  disputed  that  the  signature  of 
the  agent  Williams  would  be  sufficient  to  bind  the  defendant,  but  it  is 
contended  that  the  written  memorandum  does  not  sufficiently  show 
which  of  the  parties  was  the  buyer.  At  first  sight  this  indeed  might 
not  appear  quite  clear,  except  to  a  man  in  the  trade  ;  but  it  has  always 
been  held  that  you  may  prove  what  the  parties  would  have  understood 
to  be  the  meaning  of  the  words  used  in  the  memorandum,  and  that  for 
this  purpose  parol  evidence  of  the  surrounding  circumstances  is  admis- 
sible ;  and  the  cases  of  Macdonald  v.  Longbottom,  1  E.  &  E.  977,  28 
L.  J.  (Q.  B.)  2(J3,  and  Spicer  v.  Cooper,  1  Q.  B.  424,  are  authorities 
to  that  effect.  In  this  case  it  was  shown  that  the  plaintiff  was  a  baker, 
and  that  the  defendant  was  a  dealer  in  flour  which  the  plaintiff  would 
require  for  his  trade  ;  and  looking  at  the  nature  of  the  entry  in  relation 
to  those  facts,  I  think  there  can  be  no  reasonable  doubt  that  it  was  a 
sale  from  the  defendant  to  the  plaintiff.  If  however  there  were  any 
doubt,  looking  at  the  entry  alone,  it  is  set  at  rest  by  the  two  letters 
which  passed  between  the  plaintiff  and  defendant,  which  sufficiently  iden- 
tify the  contract,  and  in  which  the  relative  positions  of  the  parties  as 
buyer  and  seller  is  distinctly  stated. 

Willes.  J.  I  am  of  the  same  opinion.  If  the  case  of  Vandenbergh 
v.  Spooner,  Law  Rep.  1  Ex.  316,  had  been  in  point,  we  should  have 
granted  a  rule,  and  perhaps  made  it  absolute,  leaving  the  parties  to 
take  the  opinion  of  the  Court  of  Exchequer  Chamber.  I  think  however 
that  case  is  distinguishable.  I  own  I  have  considerable  difficulty  in 
understanding  that  case  ;  but  if  I  do  so  rightly,  it  amounts  to  this,  that 
a  written  agreement,  "  A.  agrees  to  buy  B.'s  horse  for  £10,"  is  not  suffi- 
cient to  satisfy  the  Statute  of  Frauds,  because  it  cannot  be  inferred  by 
reasonable  intendment  that  B.  is  the  seller.  I  cannot  help  observing 
that  that  seems  to  be  an  extreme  case.  The  present  however  does  not 
come  within  its  authority,  because  there  was  a  regular  entry  by  the  de- 
fendant's agent  in  the  plaintiff's  book  describing  what  was  to  be  sold, 
and  the  defendant  was  proved  to  be  a  person  who  sold  such  goods, 
and  the  plaintiff  a  person  who  would  require  to  purchase  such  goods  for 
the  purpose  of  his  trade.  Taking  therefore  the  entry  in  connect  ion  with 
those  circumstances,  I  think  it  sufficiently  appears  from  it  who  was  the 
buyer  and  who  the  seller  of  the  goods.  There  was  moreover  a  cor- 
respondence which  seems  to  be  sufficiently  connected  with  the  entry  to 
be  available  if  necessary,  and  from  which  the  relation  of  the  parties  as 
buyer  and  seller  clearly  appears. 

Btles,  J.  I  am  of  the  same  opinion.  Mr.  Russell  has  assumed  that 
the  words  "  Mr.  Newell  "  are  in  the  nominative  case,  but  that  would 
not  make  sense  I  think  it  would  be  reasonably  clear  that  they  were 
In  the  oblique  case,  even  if  the  memorandum  had  been  on  a  loose  slip 
of  paper  ;  but  all  doubt  is  removed  by  the  fact  that  it  is  an  entry  in  the 
plaintiffs  book.  But,  further,  evidence  of  surrounding  facts  is  admis- 
sible to  explain  the  memorandum,  as  evidence  has  been  held  admissible 
to   3ettle  the  meaning  of  the  price  or  of  the  quantity  of  goods  sold 


SECT.  VII.]  BUXTON    V.    RUST.  D30 

mentioned  in  a  memorandum  (Macdonald  v.  Longhottom,  supra),  and 
even  to  add  anew  party  as  principal;  and  the  evidence  in  thisease 
shows  that  the  occupations  of  the  parties  were  respectively  such  as  to 
be  consistent  only  with  the  plaintiff  being  the  buyer  of  the  goods. 
There  is  this  distinction  from  the  case  of  Vandenbergh  v.  Spooner, 
supra  :  the  parol  evidence  which  was  there  tendered  was  not  to  show 
the  surrounding  circumstances  or  the  position  of  the  plaintiff  as  a 
dealer  in  marbles,  but  that  the  parties  had  expressed  the  contract 
also  in  other  words,  and  so  to  vary  the  terms  of  the  contract  itself.  I 
entirely  concur  in  the  observations  of  the  Lord  Chief  Justice  and  my 
brother  Willes. 

K hating,  J.  I  am  of  the  same  opinion.  I  think  it  is  impossible  to 
look  at  the  entry  without  seeing  that  it  is  a  contract  between  Newell 
and  Williams  with  relation  to  the  flour.  Then  it  is  said  that  it  cannot 
be  ascertained  from  the  memorandum  which  is  the  buyer  and  which 
the  seller;  but  we  may  look  at  the  surrounding  circumstances,  and  it 
appears  that  the  entry  is  in  the  plaintiff's  book,  and  that  he  is  a  baker, 
and  that  Williams  was  the  agent  of  the  defendant,  who  is  a  flour  mer- 
chant. I  think  therefore  it  is  clear,  even  without  the  correspondence, 
what  was  the  relation  of  the  parties  to  each  other  ;  and  if  that  be 
referred  to,  it  leaves  no  doubt  whatever  on  the  case. 

Hide  refused. 


BUXTON  v.  RUST. 
In  the  Exchequer  Chamber,  June  3,  1872. 

[Reported  in   Law  Reports,   7  Exchequer,  279.] 

Appeal  from  the  decision  of  the  Court  of  P^xchcquer,  discharging  a 
rule  to  enter  a  verdict  for  the  defendant. 

At  the  trial  before  Pigott,  B.,  at  the  Middlesex  sittings,  in  Trinity 
Term,  1871,  the  following  facts  were  proved  :  — 

The  plaintiff  is  a  dealer  in  wool  in  London,  and  the  defendant  a  farmer 
and  cattle  dealer,  at  Little  Leighs,  near  Braintree.  On  the  11th  of  Jan- 
uary. 1871,  the  parties  met  at  Braintree,  and  entered  into  a  contract  for 
the  purchase  by  the  plaintiff  from  the  defendant  of  some  wool.  The 
following  memorandum,  containing  the  terms  which  had  been  agreed 
upon,  was^lrawn  up  and  signed  by  the  plaintiff,  and  handed  to  the 
defendant :  — 

"  Bought  Mr.  O.  J.  Rust's  (the  defendant's)  wool  as  examined,  at  15rf. 
per  pound,  net  cash;  greasy  and  damaged,  at  12<£  per  pound,  net  cash; 
to  be  weighed  and  paid  for  on  the  premises,  one  half;  and  the  whole  to 
be  cleared  in  aboill  twenty-one  days.  The  wool  to  lie  delivered  at  the 
Chelmsford  railway  station  free  of  charge,  net  weight."  The  wool  was 
worth  £150. 


940  BUXTON  V.   RUST.  [CHAP.  VI. 

On  the  7th  of  February  the  plaintiff  intimated  to  the  defendant  that 
he  was  coming  to  Braintree  to  weigh  and  pay  for  the  wool,  whereupon 
the  defendant,  on  the  8th  of  February,  wrote  him  thus:  "It  is  now 
twenty-eight  days  since  you  and  I  had  a  deal  for  my  wool,  which  was 
for  you  to  have  taken  all  away  in  twenty-one  days  from  the  time  you 
bought  it.  I  do  not  consider  it  business  to  put  it  off  like  this  ;  there- 
fore I  shall  consider  the  deal  off  as  you  have  not  completed  your  part  of 
the  contract.  I  shall  now  sell  the  wool  to  you  again  at  a  different  price, 
or  shall  sell  it  to  some  one  else.  At  the  same  time  I  shall  be  at  Braintree 
to-morrow,  Thursday,  at  eleven  o'clock,  ready  for  a  fresh  deal  if  you 
please  to  come  ;  but  do  as  you  please  about  it.  Yours,  G.  J.  Rust."  The 
plaintiff  had  started  to  weigh  the  wool  before  this  letter  reached  him, 
and  on  reaching  Braintree  the  defendant  told  him  verbally  he  could  not 
have  the  wool.  At  the  same  interview  the  plaintiff  asked  for  a  copy  of 
the  contract,  and  the  next  day  received  the  following  letter  from  the 
defendant  signed  by  him  :  "  9th  February.  Dear  Sir,  I  beg  to  enclose 
copy  of  your  letter  of  the  11th  January,  1871  "  [here  followed  a  copy 
of  the  memorandum  of  the  11th  of  January].  The  plaintiff  subsequently 
applied  to  the  defendant  for  delivery  of  the  wool,  but  the  defendant 
took  no  notice  of  the  application.     This  action  was  then  brought. 

It  was  contended  that  the  defendant  was  not  liable,  inasmuch  as  there 
was  no  sufficient  memorandum  in  writing  of  the  contract  signed  by  him 
to  satisfy  the  Statute  of  Frauds,  s.  17.  The  learned' judge  ruled  that 
there  was,  and  asked  the  jury  whether  the  plaintiff,  although  more  than 
the  actual  twenty-one  days  had  elapsed,  had  fulfilled  his  part  of  the  con- 
tract. The  jury  found  that  he  had,  and  a  verdict  was  entered  for  him 
for  £150,  with  leave  to  move  to  enter  a  verdict  for  the  defendant. 

A  rule  was  accordingly  obtained  on  the  ground  that  there  was  no 
memorandum  signed  by  the  defendant  sufficient  to  satisfy  the  Statute  of 
Frauds  (29  Car.  2,  c.  3),  s.  17. 

Willes,  J.  I  am  of  opinion  that  the  judgment  of  the  court  below 
was  right.  The  action  was  brought  for  the  non-delivery  of  wool,  alleged 
to  have  been  sold  to  the  plaintiff  on  the  11th  of  January,  1871  ;  and 
there  is  no  doubt  that  a  bargain  was  made  on  that  day.  The  question  is 
•whether  it  was  sufficiently  backed  by  a  memorandum  in  writing,  which 
wns  necessary  under  the  Statute  of  Frauds,  s.  17,  the  wool  being  worth 
more  than  £10,  and  there  having  been  no  delivery  either  of  the  whole  or 
in  part,  and  no  part  payment.  Now  it  is  certain  there  was  a  contract, 
and,  in  the  first  instance,  a  memorandum  of  it  signed  by  the  plaintiff 
and  assented  to  by  the  defendant.  The  defendant,  therefore,  could 
have  treated  the  contract  as  binding.  For  as  regarded  I  he  chargeability 
of  the  plaintiff,  the  memorandum  signed  by  him  and  assented  to  by  parol 
by  the  defendant,  would  be  sufficient.  So  it  was  decided  in  this  court 
not  long  since,  in  a  case  (Reuss  v.  I'ukslcy,  Law  Rep.  1  Ex.  342)  where 
we  approved  the  judgment  of  the  Court  of  Common  Pleas  in  Smith  y. 
Neale,  2  C.  B.  (n.  s.)  67;  26  L.  J.  (C.  P  )  143. 

But  the  memorandum,  though  binding  on  the  plaintiff,  was  not  then 


SECT.  VII.]  BUXTON    V.    RUST.  941 

binding  on  the  defendant  because  he  had  not  signed  it,  and  the  question 
before  us  is,  whether  the  letters  signed  by  him,  which  afterwards  passed, 

constitute  a  sufficient  recognition  of  the  contract  by  him.  On  the  7th 
of  February  the  plaintiff  wrote  a  letter  clearly  referring  to  the  contract, 
and  showing  a  willingness  on  his  part  to  fulfil  it.  The  defendant  an- 
swers on  the  8th,  and  in  the  course  of  his  letter  says  :  "  I  shall  consider 
the  deal  oil' as  you  have  not  completed  \'our  part  of  the  contract ;  "  writing 
of  the  deal  between  them  as  a  contract.  Now  it  appears  to  me  that  having 
regard  to  the  cases  of  Shortrede  v.  Cheek,  1  Ad.  &  E.  57,  and  Macdonald 
v.  Longbottom,  1  E.  &  E.  977,  987  ;  28  L.  J.  (Q.  B.)  293  ;  29  L.  J.  (Q.  B.) 
250,  it  might  lie  well  worth  considering  whether  evidence  would  not  have 
been  admissible  to  show  that  the  contract  referred  to  in  the  letter  of  the 
8th  of  February  was  the  bargain  made  on  the  11th  of  January.  In  the 
former  case  it  was  held  that  the  words  "the  promissory  note"  used  in  a 
memorandum  of  a  guarantee  might  be  proved  to  refer  to  a  certain 
promissory  note  made  by  the  defendant's  son  and  payable  to  the  plain- 
tiff. In  the  latter,  evidence  was  admitted  to  show  that  the  words,  '•  your 
wool,"  referred  to  certain  particular  wool  which  the  plaintiff  had  under 
his  control  at  the  time  of  the  contract.  And  here  it  might,  I  think, 
well  be  contended  that  the  "contract,"  mentioned  in  the  letter  of  the 
8th,  might  have  been  shown  to  be  the  contract  of  the  11th  of  January, 
and  then  that  letter,  on  the  principle  that  verba  relata  inesse  videntur, 
would  itself  be  sufficient.  But  we  need  not  decide  this  point,  because 
we  have  also  the  letter  of  the  9th  of  February  sent  by  the  defendant  to 
the  plaintiff,  and  enclosing  a  copy  "  of  your  letter  of  the  11th  of  Janu- 
ary." The  copy  enclosed  is  in  fact  a  cop}-  of  the  memorandum  of  that 
date  ;  and  it  maj'  be  that  this  also  would  be  quite  enough  on  the  same 
principle  that  a  printed  name  on  an  invoice  has  been  held  a  sufficient 
signature.  Schneider  v.  Norris,  2  M.  &  S.  286.  However  this  may  be, 
I  am  of  opinion  that  the  letters  of  the  defendant  of  the  8th  and  9th  of 
February  satisfy  the  Statute  of  Frauds.  They  amount  to  this.  The 
defendant  says:  "  I  did  enter  into  a  contract  with  you  on  the  11th  of 
Januar}',  but  I  will  not  perform  it  for  a  particular  reason,  and  in  order 
to  show  that  my  construction  of  the  contract  is  the  correct  one,  I  for- 
ward you  a  copy  of  its  terms."  This  is  a  sufficient  admission,  and  the 
fact  that  it  was  accompanied  by  a  repudiation  of  the  obligation  to  per- 
form the  contract,  does  not  prevent  its  being  used  as  an  admission. 
That  was  decided  in  the  two  cases  referred  to  in  the  Court  of  Common 
Pleas  of  Bailey  v.  Sweeting,  9  C.  B.  (n.  s.)  843;  L.  J.  (C.  P.)  150, 
and  Wilkinson  v.  Evans,  Law  Rep.  1  C.  P.  407.  The  judgment  must 
therefore  be  affirmed. 

Br,ACKBri;\.  J.  I  give  no  opinion  as  to  wdiether  the  letters  either  of 
the  8th  and  9th  of  February,  taken  singly,  would  constitute  a  sufficient 
memorandum  to  bind  the  defendant.  But  I  am  clearly  of  opinion  that 
the  two  taken  together  are  enough.  First,  we  have  a  contract  made  on 
the  11th  of  January.  Then  on  the  8th  of  February  there  is  a  record  of 
its  existence  in  the  defendant's  letter  where  he  refers  distinctly  to  the 


942  PEIRCE   V.    CORF.  [CHAP.  VI. 

contract,  and  wishes  to  escape  performance  upon  the  grounds  mentioned. 
Immediately  afterwards  he  encloses  a  copy  of  the  contract,  stating  that 
he  sends  a  copy  of  "your  letter  of  the  11th  of  January,"  and  these 
words  must  necessarily  refer  to  a  copy  of  the  memorandum  of  the  bar- 
gain. Taking  the  two  letters  together,  therefore,  I  have  no  doubt  that 
the  defendant  is  bound  under  the  17th  section  of  the  statute. 

I  may  add,  with  reference  to  the  statement  read  from  Blackburn  on 
the  Contract  of  Sale,  p.  66,  to  the  effect  that  "it  seems  difficult  on 
principle  to  see  how  an  admission  of  the  terms  of  a  bargain  signed  for 
the  express  purpose  of  repudiation  can  be  considered  a  memorandum  to 
make  the  contract  good,"  that  the  point  has  been  clearly  settled  since 
the  publication  of  that  book  by  the  decisions  of  the  Court  of  Common 
Pleas,  which  have  been  referred  to,  and  from  which  I  do  not  see  any 
reason  to  dissent ;  the  rule  they  establish  is  as  logical  and  more  con- 
venient than  that  suggested  by  myself. 

Judgment  affirmed} 


PEIRCE  v.  CORF. 

In  the  Queen's  Bench,  January  27,  1874. 

[Reported  in  Law  Reports,  9   Queen's  Bench,  210.] 

Appeal  from  the  County  Court  of  Lancashire  holden  at  Liverpool. 

The  action  was  brought  to  recover  the  sum  of  £30,  for  damage  sus- 
tained by  the  plaintiff  through  the  negligence  of  the  defendant,  as  an 
auctioneer,  in  not  making  a  binding  contract  with  Thomas  Maguire,  to 
whom  a  mare  of  the  plaintiff's  had  been  knocked  down  at  a  sale  by 
auction  at  the  defendant's  repository,  where  the  mare  had  been  sent  by 
the  plaintiff  to  be  sold. 

At  the  trial  the  judge  directed  a  verdict  to  be  entered  for  the  plaintiff, 
on  the  following  facts  :  — 

In  March,  1872,  the  plaintiff,  being  the  owner  of  a  mare,  placed  her 
in  the  hands  of  the  defendant  (who  is  an  auctioneer  and  proprietor  of  a 
horse  repository,  where,  under  the  name  of  Lucas  &  Co.,  he  holds  peri- 
odical sales  of  horses  by  auction)  with  directions  to  offer  her  for  sale  at 
one  of  his  public  sales. 

Accordingly  the  defendant  advertised  the  mare  with  a  number  of 
other  horses  for  sale  by  auction  on  the  28th  of  March,  1872,  and  circu- 
lated a  printed  catalogue  of  the  horses  and  things  intended  to  be  sold 
at  this  sale. 

In  the  catalogue  the  plaintiff's  mare  was  numbered  49. 

1  LuBH,  JSrett,  and  Byt.es,  JJ.,  delivered  brief  concurring  opinions.  Ki:ati:;o, 
J  ,  also  concurred. 


SECT.  VII.]  PEIRCE   V.    CORF.  943 

Upon  the  catalogue  were  printed  the  conditions  of  sale,  the  catalogue 
and  the  conditions  forming  one  document. 

The  catalogue  was  headed,  "  To  be  sold  by  auction  by  Messrs.  Lucas 
&  Co.,  on  Thursday,  28th  March,  1872,  at  12  o'clock,  at  their  repository, 
Liverpool,  50  valuable  horses."  Then  followed  the  conditions  of  sale, 
and  afterwards  an  enumeration  of  the  lots  to  be  sold.  The  description 
of  the  plaintiff's  mare  was  inserted  thus :  "  Lot  49  :  Gray  mare,  G  years 
old,  15-3  hands  high,  steady  to  ride  and  drive." 

Prior  to  the  sale  the  defendant  (according  to  his  practice)  caused  to 
be  made  in  such  of  the  columns  in  his  "  sales  ledger  "  as  were  applicable 
to  matters  ascertainable  before  the  sale,  entries  relating  to  the  horses 
described  in  the  catalogue.  In  this  ledger  the  horses  are  entered  in  the 
same  order,  and  were  numbered  as  in  the  catalogue. 

On  the  28th  of  March,  1872,  the  lots  described  in  the  catalogue  were 
put  up  for  sale  under  the  conditions  by  the  defendant  as  auctioneer. 

Neither  the  catalogue  nor  the  conditions  of  sale  were  annexed  or 
affixed  to  the  "  sales  ledger,"  nor  are  they  referred  to  therein  ;  but  the 
defendant  during  the  sale  held  in  his  hand  a  catalogue  with  the  conditions 
of  sale. 

The  plaintiff's  mare  was,  in  her  turn,  according  to  numerical  order  in 
the  catalogue,  put  up  for  sale,  and  knocked  down  to  Thomas  Maguire 
for  thirty-three  guineas. 

Thereupon  the  defendant's  clerk  wrote  in  the  columns  of  the  "  sales 
ledger."  left  blank  for  the  purpose  opposite  to  the  lot  in  question,  the 
name  of  the  purchaser  and  the  price. 

The  "sales  ledger"  was  headed:  "Select  sales  by  auction,  Thurs- 
day, 28  March,  1872."  And  the  entry  as  to  the  plaintiff's  mare  was  as 
follows  :  — 

"Owner:  Peirce.  Lot  49:  Gra}-  mare,  age  6.  Warranty  as  to 
soundness  :  .  Warranty  as  to  harness  :  '  Ride  and  drive.'  Re- 
serve :  C.  E.     Purchaser:  T.  Maguire,  £33.     Amount:  .     Paid 

or  entered:  Commission,  £1  19s.  6d.     Livery:  10s.  Gd.     Total  charge  : 
£2  10s.  Od.     Memo,  returned." 

The  defendant  did  not  ask  for  or  obtain  any  deposit  from  Thomas 
Maguire,  nor  was  anything  given  by  the  latter  person  in  part 
payment. 

As  soon  as  the  sale  was  over,  Thomas  Maguire  requested  the  defend- 
ant to  put  the  mare  into  harness,  in  order  that  he  might  before  taking 
delivery  test  whether  she  was  steady  in  harness.  This  was  accordingly 
done,  and  Thomas  Maguire,  not  being  satisfied  with  the  mare's  steadi- 
ness, declined  to  take  her,  and  thereupon  wrote  and  handed  to  the 
defendant  the  following  letter :  "Liverpool,  28  March,  1872.  Gentle- 
men, —  I  return  the  gray  mare,  Lot  49.  bought  at  your  sale  this  day,  as 
not  being  steady  in  harness  as  warranted.     Thomas  Maguire." 

Thomas  Maguire  refusing  to  take  delivery  of  and  pay  for  the  mare, 


944  PEIRCE   V.    CORF.  [CHAP.  VI. 

she  was,  after  notice  given  to  him,  resold  on  the  16th  of  May.  1872,  for 
the  sum  of  £29  Ss.  The  plaintiff  thereupon  brought  an  action  in  the 
County  Court  at  Liverpool  against  Thomas  Maguire,  for  the  recovery 
of  damages  in  respect  of  the  loss  sustained  by  the  plaintiff  by  reason  of 
Maguire's  refusal  to  take  the  mare.  This  action  was  tried  before  the 
judge  on  the  23d  October,  neither  the  "  sales  ledger,"  nor  Maguire's 
letter,  being  put  in  evidence  ;  at  the  conclusion  of  the  case  of  the  plain- 
tiff, the  then  defendant's  counsel  contended  that  no  signed  note  or 
memorandum  in  writing  of  the  bargain  sufficient  to  satisfy  the  require- 
ments of  the  17th  section  of  the  Statute  of  Frauds  had  been  proved. 
The  judge  nonsuited  the  plaintiff. 

The  plaintiff  then  commenced  the  present  action  against  the  present 
defendant.  At  the  hearing  the  defendant  put  in  evidence  the  catalogue 
and  the  conditions  of  sale,  the  sales  ledger,  and  Maguire's  letter.  The 
defendant  also  proved  by  his  own  parol  evidence  that  the  entries,  No. 
49  of  the  catalogue  and  in  the  sales  ledger  related  to  the  same  animal, 
that  is  to  say,  to  the  mare  of  the  plaintiff,  and  to  the  sale  on  the  28th 
of  March. 

It  was  contended  on  behalf  of  the  defendant  that  there  was  evidence 
of  a  signed  note  in  writing  of  the  bargain,  that  is  to  say,  of  the  sale  of 
the  mare  to  Maguire  on  the  28th  of  March,  sufficient  to  satisfy  the 
requirements  of  the  17th  section  of  the  Statute  of  Frauds.  The  judge 
was  of  opinion  that  there  was  no  proof  of  a  sufficient  connection,  by 
reference  or  otherwise,  between  the  conditions  of  sale  and  the  entries  in 
the  sales  ledger  ;  and  gave  judgment  for  the  plaintiff. 

The  question  for  the  opinion  of  the  court  was,  whether  under  the  cir- 
cumstances there  was  evidence  of  a  signed  note  or  memorandum  in 
writing  of  the  bargain,  sufficient  to  satisfy  the  17th  section  of  the  Statute 
of  Frauds. 

Jlerschell,  Q.  C.  (Gully  with  him),  for  the  defendant. 

Wheeler,  for  the  plaintiff. 

Black  mux,  J.  I  am  of  opinion  that  the  decision  of  the  County 
Court  judge  should  be  affirmed.  The  defendant,  who  is  an  auctioneer, 
having  undertaken  to  sell  the  mare  at  a  price  exceeding  the  sum  of  £10, 
was  bound,  as  part  of  his  duty,  to  take  reasonable  and  proper  care  that 
the  contract  of  sale  was  binding.  The  mode  in  which  contracts  are 
made  by  an  auctioneer — and  which  must  now  be  considered  as  recog- 
nized at  law  —  is,  that  when  an  auctioneer  is  selling  he  has  a  catalogue 
to  which  are  annexed  the  conditions  of  sale,  and  he  has  authority  from 
the  highest  bidder  to  sign  the  catalogue  on  his  behalf,  and  if  the  auc- 
tioneer signs  the  catalogue  with  the  conditions,  that  is  a  sufficient 
memorandum  in  writing  of  a  contract  within  the  Statute  of  Frauds  to 
bind  the  purchaser.  But  in  order  to  make  a  valid  contract,  the  docu- 
ment the  auctioneer  signs  on  behalf  of  the  buyer  must  contain  all  the 
terms  of  the  contract ;  the  contract  being,  in  fact,  subject  to  the  con- 
ditions contained  in  the  catalogue,  and  the  purchase  being  at  the  price 
noted  at  the  time.     The  memorandum,  to  be  a  good  memorandum,  must 


SECT.  VII.]  PEIRCE    V.    CORF.  945 

be  signed  in  such  a  manner  that  when  the  auctioneer  attaches  his  sig- 
nature it  authenticates  the  contract  as  to  the  price  and  conditions  of 
sale.  I  have  already  said  that  the  usage  of  sales  by  auction  which  we 
must  take  notice  of  is,  that  the  auctioneer  is  the  person  who  has  author- 
it}'  to  sign,  and  generally  he  does  wisely  if  he  signs  upon  the  catalogue. 
I  am  not  prepared  to  sa}-,  if  the  auctioneer  had  a  ledger  or  book  in 
which  the  conditions  were  copied  out,  and  he  signed  that  ledger,  that 
that,  without  other  evidence,  might  be  said  to  be  a  sufficient  contract, 
although  he  had  not  signed  the  catalogue  ;  but  I  take  it  as  quite  clear 
that  the  auctioneer's  clerk  has  no  authorit}*  to  sign  by  the  general  cus- 
tom ;  although,  as  Bird  v.  Boulter,  4  B.  &  Ad.  443,  decided,  there  may 
be  special  circumstances  to  show  that  an  auctioneer's  clerk  had  authority 
to  sign  ;  where  the  bidder,  that  is,  the  person  to  be  charged,  by  word  or 
sign  authorizes  the  auctioneer's  clerk  to  sign  on  his  behalf,  he  makes 
him  his  agent  to  sign,  although  by  the  general  custom  the  auctioneer's 
clerk  would  not  be  the  bidder's  agent.  The  present  case  finds  that  the 
auctioneer's  clerk  signed  a  document  called  the  sales  ledger.  There  is 
nothing  in  the  case  that  leads  me  to  conclude  that  the  ledger  was  intended 
to  be  shown  or  was  known  to  the  bidders.  The  ciphers  in  it  refer- 
ring to  a  reserve  bid  is  a  matter  that  would  be  kept  by  the  auctioneer 
probably  from  his  own  clerk,  and  would  lead  to  the  conclusion  that  it 
was  not  intended  that  the  bidder  should  see  the  sales  ledger.  I  should 
be  inclined  to  think  that  the  defendant's  clerk,  in  signing  that  document, 
was  signing  it  as  an  agent  employed  by  his  master,  the  auctioneer,  and 
not  by  the  bidder ;  that  is  what  I  should  infer ;  but  however  that  may 
be,  this  point  does  not  appear  to  have  been  taken  before  the  County 
Court  judge.  What  he  decided  was,  assuming  that  the  writing  of 
Maguire's  name  in  the  sales  ledger  was  a  signature  made  by  an  ao-ent 
with  authority,  that  as  there  was  not  any  reference  in  the  sales  ledger  to 
the  conditions  of  sale,  there  was  no  sufficient  memorandum  within  the 
Statute  of  Frauds  to  constitute  a  binding  contract  with  Maguire  for  the 
purchase  of  the  mare.  In  Hinde  v.  Whitehouse,  7  East.  558,  the  auc- 
tioneer read  the  conditions,  and  then  laid  them  on  his  desk  ;  he  held  the 
catalogue  in  his  hand  and  wrote  down  the  name  of  the  purchaser  oppo- 
site the  lots  in  the  catalogue.  Lord  Ellenborough  held  that  the  contract, 
when  made,  was  subject  to  the  conditions  ;  and  as  the  contract  that  was 
signed  did  not  incorporate  the  conditions,  there  was  no  memorandum  of 
a  bargain  under  the  conditions.  The  catalogue  and  the  conditions  were 
not  connected  physically,  nor  had  the  catalogue  any  internal  reference 
to  the  conditions  to  show  they  were  incorporated.  In  the  present  case 
it  was  argued  by  Mr.  Herschell  that,  inasmuch  as  the  sales  ledger  was 
dated  on  the  same  day  as  the  catalogue,  and  referred  to  certain  "  lots  " 
which  were  identical  with  the  lots  in  the  catalogue,  it  must  have  referred 
to  that  particular  sale  on  that  day  of  those  particular  lots,  and  that  there 
was  a  sufficient  connection  between  the  sales  ledger  and  the  catalogue, 
so  that  the  lots  were  necessarily  sold  subject  to  the  conditions  in  the 
catalogue.     I  am  not  able  to  concur  in  that  argument.     I  air.  not  aware 

60 


946  PF.IRCE  V.   CORF.  [chap.  VI. 

there  is  any  custom  known  to  the  law,  and  I  do  not  believe  there  is  such 
a  custom  as  to  make  it  necessaiy  that  ever}'  sale  by  the  auctioneer 
should  be  upon  the  terras  of  the  catalogue  ;  on  the  contrary,  in  many 
instances  the  terms  of  the  catalogue  are  departed  from,  and  there  is 
often  a  verbal  notice,  although  the  particulars  are  so  and  so,  yet  this  lot 
will  be  put  up  subject  to  such  a  condition,  and  that  practice  often  gives 
rise  to  disputes  as  to  whether  the  part}'  purchasing  heard  of  the  altera- 
tion in  the  conditions  ;  and  I  do  not  think  there  is  any  usage  or  universal 
custom  from  which  it  follows  that  every  sale  is  taken  to  be  subject  to 
the  conditions  as  stated  in  the  catalogue  ;  I  therefore  cannot  think  that 
there  is  sufficient  reference  in  the  one  to  the  other. 

There  is  another  point.  After  the  sale  Maguire  wrote  a  letter  to  the 
defendant,  in  which  he  says  :  "  I  herewith  return  the  gray  mare,  lot  49, 
bought  at  your  sale  this  day,  as  not  being  stead}'  in  harness  as  war- 
ranted." I  think  that  letter  amounts  in  effect  to  a  statement  by  Maguire 
that  he  bought  the  mare  at  the  defendant's  sale,  and  I  think  parol  evi- 
dence would  be  admissible  to  show  that  he  bought  it  subject  to  the  con- 
ditions of  the  catalogue  ;  and  I  am  inclined  to  think,  though  it  is  not 
necessary  to  decide  it,  the  letter  is  equivalent  to  Maguire  saying:  "  I 
return  the  gra}'  mare  which  I  bought  at  your  sale  upon  the  conditions  of 
the  catalogue  ;  "  but  such  a  writing  would  be  a  defective  memorandum 
under  the  Statute  of  Frauds,  because  it  does  not  state  the  price  at  which 
the  mare  was  bought.  But  it  may  be  said  it  sufficiently  refers  to  the 
price  written  down  by  the  clerk  in  the  sales  ledger.  This  point  does  not 
seem  to  have  been  raised  before  the  County  Court  judge  ;  but  if  it  had 
been,  I  should  have  been  of  opinion  that,  in  order  to  make  out  that  the 
letter  refers  to  the  price  written  down  by  the  clerk,  it  is  essential  to  show 
that  the  clerk,  when  he  was  writing  the  price  in  the  sales  ledger,  wrote 
it  down  in  such  a  manner  that  the  bidder  was  aware  that  he  was  writing 
it  down  as  a  memorandum  for  him. 

I  think  that  there  is  no  sufficient  memorandum  in  writing  Within  the 
Statute  of  Frauds,  and  our  judgment  must  be  for  the  plaintiff. 

Judgment  for  the  plaintiff} 

1  Qoain  and  Archibald,  JJ.,  delivered  concurring  opinions. 


SECT.  VII.]  HICKMAN    V.    HAYNES.  947 

HICKMAN   v.   HAYNES. 

In  the  Common  Pleas,  July  9,  1875. 

[Reported  in  Law  Reports,  10  Common  Pleas,  598.] 

The  judgment  of  the  court  (Lord  Coleridge,  C.  J.,  Grove,  Archi- 
bald, and  LlNDLET,  J  J.)  was  delivered  by 

Lindlet,  J.  This  was  an  action  for  not  accepting  certain  iron  agreed 
to  be  sold  by  the  plaintiff  to  the  defendants.  The  contract  for  sale  of 
the  iron  was  in  writing,  and  was  required  so  to  be  by  the  17th  section 
of  the  Statute  of  Frauds.     The  bought-note  was  as  follows :  — 

Tipton,  Gth  March,  1873.  Bought  of  Alfred  Hickman,  Esq.,  one 
hundred  tons  of  Grey  Forge  Mine  pig  iron,  at  £7  lO.s.  per  ton.  Deliv- 
ered atTividale  Street  Mills,  Tipton.  Payment  in  cash,  less  2\  discount, 
monthly.  Delivery  twenty-five  tons  this  month,  and  twenty-five  tons 
per  month  during  April,  May,  and  June  next. 

The  Tividale  Iron  Company.  J.  P.  Hayxes. 

Pursuant  to  this  contract  the  plaintiff  delivered  and  the  defendants 
accepted  and  paid  for  seventy-five  tons  of  the  iron  ;  but,  owing  to  the 
circumstances  stated  below,  the  plaintiff  did  not  deliver  the  last  twenty- 
five  tons,  for  the  price  of  which  the  action  is  brought. 

It  appears  from  the  evidence  taken  at  the  trial  that,  on  the  2d  of  June, 
and  again  in  the  middle  of  June,  the  defendant  Haynes  saw  the  plain- 
tiff, and  verbally  requested  him  to  allow  the  delivery  of  the  last  twenty- 
five  tons  to  stand  over,  and  that  the  plaintiff  verbally  assented  to  tins 
request ;  and  accordingby  nothing  further  was  done  by  either  side  until 
the  1st  of  August,  1873,  when  plaintiff  wrote  to  defendants  as  follows: 
"  Permit  me  to  call  your  attention  to  your  contract  with  me  for  pig  iron, 
of  which  twent}T-five  tons  remain  to  be  delivered.  I  have  held  them 
until  now,  as  you  requested,  and  shall  be  glad  to  know  when  you  pro- 
pose to  take  delivery.  If  it  is  not  convenient  for  you  to  take  the  iron. 
I  shall  be  glad  to  know  if  you  will  be  willing  to  pay  the  difference  in 
price,  if  I  instruct  Mr.  Lewis  to  sell  them." 

This  led  to  some  correspondence,  which  was  terminated  by  a  letter 
written  by  the  defendants  on  the  9th  of  August,  asking  for  more  time. 
The  plaintiff  again  waited  for  a  reasonable  time,  but  without  result.  On 
the  20th  of  October,  1874,  the  writ  was  issued. 

The  case  was  sent  for  trial  in  the  Dudley  County  Court,  and  was  tried 
there  on  the  28th  of  May,  1875,  when  a  verdict  was  found  for  the  plain- 
tiff, damages  £25,  with  leave  for  the  defendants  to  move  for  a  nonsuit, 
or  for  a  reduction  of  the  damages.  Pursuant  to  the  leave  thus  reserved, 
a  rule  was  obtained  to  show  cause  why  a  nonsuit  should  not  be  entered, 
on  the  ground  that  the  parol  agreement  to  postpone  delivery  of  the  iron 
was  invalid  under  the  Statute  of  Frauds,  or  why  the  damages  should  not 
be  reduced  to  £21  17s.  Gd.,  or  to  £7  5s.,  if  the  court  should  be  of  opiu- 


948  HICKMAN    V.    HAYNES.  [CHAP.  VI. 

Ion  that  the}-  ought  to  he  assessed  on  the  30th  of  June,  1873,  Dr  on  the 
2d  of  June,  1873. 

The  declaration  was  framed  upon  the  contract  above  set  forth,  and 
averred  as  a  breach,  that,  although  the  defendants  had  accepted  and 
paid  for  seventy-five  tons,  they  would  neither  accept  nor  pay  for  the  last 
twenty-five  tons  ;  alleging  also  that  the  defendants  had  exonerated  the 
plaintiff  from  delivering  the  twenty-five  tons  at  the  Tividale  Street  Mills, 
as  agreed. 

Amongst  other  pleas,  the  defendants  traversed  the  alleged  exoneration, 
and  also  pleaded,  thirdly,  that  the  plaintiff  was  not  ready  and  willing  to 
deliver  the  said  twenty-five  tons  according  to  the  terms  of  the  agree- 
ment ;  and,  fifthly,  that  before  breach  the  plaintiff  discharged  the  defend- 
ants from  further  performance  of  the  agreement. 

In  this  state  of  the  record,  and  upon  the  evidence  above  set  forth,  it 
was  contended  before  us  that  there  was  in  fact  a  new  and  substituted 
agreement  for  delivery  and  acceptance  of  the  last  twenty-five  tons  of 
iron  at  a  time  subsequent  to  that  originally  agreed  upon,  which  was 
sufficient  to  exonerate  the  defendants  from  the  further  performance  of 
the  original  agreement,  but  which,  not  being  in  writing,  could  not  be 
enforced,  by  reason  of  the  Statute  of  Frauds,  and  that  no  amendment 
of  the  declaration,  therefore,  would  enable  the  plaintiff  to  maintain  his 
action  ;  and  also  that  the  plaintiffs  verbal  assent  to  postpone  the  deliv- 
erv  of  the  twenty-five  tons  until  the  1st  of  August  established  conclu- 
sively that  he  was  not  ready  and  willing  to  deliver  in  June,  according 
to  the  terms  of  the  written  contract,  and  therefore  he  was  not  in  a 
condition  to  recover  upon  the  original  contract  as  set  out  in  the  declar- 
ation. 

It  is  to  be  observed  that  there  was  no  plea,  in  terms,  of  a  new  and 
substituted  contract.  The  defendants'  contention  was  based  upon  the 
fifth  plea,  i.e.,  of  a  discharge  before  breach,  relying  upon  the  evidence 
also  in  support  of  the  plea  alleging  absence  of  readiness  and  willingness 
to  deliver  pursuant  to  the  written  agreement.  The  argument,  in 
substance,  was,  that  the  plaintiff  was  not  in  fact  ready  and  willing  to 
deliver  the  iron  according  to  the  written  contract,  and  that  in  point 
of  law  it  was  immaterial  that  he  would  have  delivered  or  been  ready 
and  willing  to  deliver  the  iron  according  to  the  written  contract,  had  it 
nut  been  for  the  previous  verbal  request  of  the  defendants  not  to  de- 
liver it.  It  was  frankly  admitted  by  the  defendants'  counsel  that  this 
defence  was  finite  beside  the  real  merits  of  the  case  ;  but  it  was  strenu- 
ously contended  that,  having  regard  to  the  Statute  of  Frauds,  and  to 
the  decisions  of  Noble  v.  Ward,  Law  Rep.  1  Ex.  117;  in  error,  Law 
Rep.  2  Ex.  135;  Stead  v.  Dawber,  10  A.  &  E.  57:  and  Goss  v.  Lord 
Nugent,  5  B.  &  Ad.  58,  the  plaintiff  could  not  maintain  his  action,  and 
ought  to  be  nonsuited. 

I'll.'  proposition  that  one  party  to  a  contract  should  thus  discharge 
hims.lf  from  his  own  obligations  by  inducing  the  other  party  to  give  him 
time  for  their  performance,  is,  to  say  the  least,  very  startling,  and  if 


SECT.  VII.]  HICKMAN   V.    HAYNE&  949 

w<  II  founded  will  enable  the  defendants  in  this  case  to  make  use  of  the 
Statute  of  Frauds,  not  to  prevent  a  fraud  upon  themselves,  but  to  com- 
mit a  fraud  upon  the  plaintiff.  It  need  hardly  lie  said  that  there  must 
be  some  very  plain  enactment  or  strong  authority  to  force  the  court  to 
countenance  such  a  doctrine. 

The  Statute  of  Frauds  contains  no  enactment  to  the  effect  contended 
for.  The  utmost  effect  of  the  17th  section  is  to  invalidate  any  vei 
agreement  for  the  sale  of  goods  in  certain  cases  ;  and,  even  if  a  verbal 
agreement  for  extending  the  time  for  the  delivery  of  goods  already 
agreed  to  be  sold  is  within  the  statute,  —  as  to  which  see  per  Martin,  1'... 
in  Tyers  v.  Kosedale  and  Ferryhill  Iron  Co.,  Law  Rep.  8  Ex.  305  ;  in 
error,  Law  Rep.  10  Ex.  l'J.3,  and  Leather  Cloth  Co.  v.  Hieronimus,  Law 
Rep.  10  Q.  B.  140,  —  the  plaintiff  in  this  case  is  not  attempting  to  en- 
force any  such  verbal  agreement,  but  is  suing  on  the  original  agreement, 
which  was  in  writing. 

The  case  of  Noble  v.  Ward,  supra,  merely  shows  that  a  parol  agree- 
ment to  extend  the  time  for  performing  a  contract  in  writing,  and 
required  so  to  be  by  the  Statute  of  Frauds,  does  not  rescind,  vary,  or  in 
any  way  affect  such  written  contract,  and  cannot  in  point  of  law  be  sub- 
stituted for  it.  In  Stead  v.  Dawber,  supra,  there  was  a  written  agree- 
ment for  the  delivery  of  goods  on  a  particular  day,  and  a  subsequent 
verbal  agreement  for  their  delivery  on  a  later  specified  day;  and  the 
court  came  to  the  conclusion  that  the  parties  intended  to  substitute  the 
later  verbal  agreement  for  the  previous  written  agreement.  But,  in 
the  case  now  before  the  court,  there  was  no  fresh  agreement  at  all  for 
the  delivery  of  the  twenty-five  tons  which  can  be  regarded  as  having  been 
substituted  for  the  original  written  contract.  There  was  nothing  more 
than  a  waiver  by  the  defendants  of  a  delivery  by  the  plaintiff  in  June  of 
the  last  twenty-five  tons  of  iron  ;  and  it  should  seem  that  in  Stead  v. 
Dawber  the  court  would  have  been  in  favor  of  the  plaintiff  if  they  had 
come  to  the  conclusion  that  there  had  been  no  substitution  of  one  agree- 
ment for  another.  Marshall  v.  Lynn,  6  M.  &  W.  109,  was  a  somewhat 
similar  case  decided  on  similar  grounds. 

Goss  r.  Lord  Nugent,  supra,  turned  on  the  4th  and  not  on  the  17th 
section  of  the  statute  ;  but  we  do  not  think  this  important.  The  plain- 
tiff had  agreed  in  writing  to  sell  certain  property  to  the  defendant,  and 
to  make  a  good  title  to  the  whole  ;  but  this  the  plaintiff  was  unable  to 
do.  He  never  could,  therefore,  have  maintained  an  action  on  the  origi- 
nal written  contract,  if  nothing  further  had  been  done.  But  the  defend- 
ant verbally  agreed  to  waive  his  right  to  call  for  a  good  title  to  part  of 
the  land  ;  and,  having  afterwards  declined  to  complete  the  purchase.  h<> 
was  sued  by  the  plaintiff,  and  it  was  held  that  the  action  did  not  lie. 
The  ground  of  this  decision  was,  that  the  plaintiff  was  in  truth  seeking 
to  enforce  an  agreement  relating  to  land,  and  which  agreement  was 
partly  in  writing  and  partly  verbal,  which  by  the  statute  he  could  not 
do.  The  court  in  this  case  also  regarded  the  parties  as  having  entered 
into  a  new  verbal  contract  as  to  part  of  the  property,  and  as  having  sub- 


950  HICKMAN    V.    HAYNES.  [CHAP.  VI. 

stituted  this  contract  for  the  original  written  contract ;  and  in  this  view 
of  the  case  the  plaintiff  could  not  recover. 

In  Stowell  v.  Robinson,  3  Bing.  (N.  C.)  928,  it  was  held  that  the  time 
for  performing  a  contract  in  writing  for  the  sale  of  land  could  not  be 
enlarged  by  parol.  In  that  case  the  defendant  set  up  the  parol  agree- 
ment in  answer  to  the  plaintiff's  action  for  the  recovery  of  his  deposit, 
and,  the  court  holding  the  parol  agreement  to  be  invalid,  the  plaintiff 
recovered. 

The  result  of  these  cases  appears  to  be  that  neither  a  plaintiff  nor  a 
defendant  can  at  law  avail  himself  of  a  parol  agreement  to  vary  or 
enlarge  the  time  for  performing  a  contract  previously  entered  into  in 
writing,  and  required  so  to  be  by  the  Statute  of  Frauds.  But,  so  far  as 
this  principle  has  any  application  to  the  present  case,  it  appears  to  us 
rather  to  preclude  the  defendants  from  setting  up  an  agreement  to  en- 
large the  time  for  delivery  in  answer  to  the  plaintiff's  demand,  than  to 
prevent  the  plaintiff  from  suing  on  the  original  contract  for  a  breach  of 
it.  There  was,  in  truth,  in  this  case  no  binding  agreement  to  enlarge 
tb.3  time  for  delivery.  The  County  Court  judge  finds  that  the  plaintiff 
permitted  the  defendants  to  postpone,  for  their  own  convenience,  the 
acceptance  of  the  iron  in  dispute,  and  that  the  voluntary  withholding 
delivery  at  the  request  of  the  defendants  was  usual  in  the  ordinary 
course  of  dealings  of  a  similar  kind  in  the  iron  trade.  This  finding,  in 
fact,  shows  that  at  any  time  in  June  either  party  could  have  changed  his 
mind,  and  required  the  other  to  perform  the  contract  according  to  its 
original  terms  :  see  Tyers  v.  Rosedale  and  Ferryhill  Iron  Co.,  Law  Rep. 
10  Ex.  195,  as  decided  in  error,  reversing  the  decision  below.  Law 
Rep.  8  Ex.  305. 

The  distinction  between  a  substitution  of  one  agreement  for  another 
and  a  voluntary  forbearance  to  deliver  at  the  request  of  another,  was 
pointed  out  and  recognized  in  Ogle  v.  Lord  Vane,  Law  Rep.  2  Q.  B.  275  ; 
in  error,  Law  Rep.  3  Q.  B.  272.  In  that  case  the  plaintiff  sued  the 
defendant  for  not  delivering  iron  pursuant  to  a  written  contract,  and  the 
plaintiff  sought  to  recover  as  damages  the  difference  between  the  con- 
tract price  of  the  iron  and  the  market  price,  not  at  the  time  of  the 
defendants'  breach,  but  at  a  later  time,  the  plaintiff  having  been  induced 
to  wait  by  the  defendant,  and  having  waited  for  his  convenience.  It 
was  contended  that  the  plaintiff  was  in  fact  suing  for  the  breach  of  a 
new  verbal  agreement  for  delivery  at  a  later  date  than  that  fixed  by  the 
original  agreement ;  but  the  court  held  otherwise,  and  that,  as  the  plain- 
tiff had  merely  forborne  to  press  the  defendant,  and  had  not  bound 
himself  by  any  fresh  agreement,  the  plaintiff  could  sue  on  the  original 
agreement,  and  obtain  larger  damages  than  he  could  have  obtained  if  he 
had  not  waited  to  suit  the  defendant's  convenience.  Mr.  Justice  Black- 
burn (  Law  Rep.  2  <v>.  B.  at  p.  282)  pointed  out  very  clearly  the  distinction 
to  which  we  are  now  adverting,  and  came  to  the  conclusion  that  in  Ogle 
r.  Lord  Vane  there  was  no  substitution  of  one  contract  for  another,  and 
that  all  that  the  parties  did  was  this  :  "The  plaintiff  was  willing  to  wait 


SECT.  VII.]  THOMPSON    V.    GARDINER.  951 

at  the  request  of  the  defendant  for  the  defendant's  convenience,  and  he 
did  wait  for  a  long  time,  till  February  ;  but,  if  he  had  lost  patience 
sooner,  and  refused  to  wait  longer,  he  would  have  had  a  right  to  bring 
his  action  at  once  for  the  breach  in  July.  It  is  clearly  a  case  of  volun- 
tary wailing,  and  not  of  alteration  in  the  contract;  and  the  length  of 
time  can  make  no  difference."  In  that  case,  the  request  for  forbearance 
was  made  by  the  vendor  after  the  contract  had  been  broken  :  in  this  case 
the  request  for  time  was  made  by  the  purchasers  both  before  and  after 
the  time  for  completing  the  contract  had  expired  ;  but  this  distinction 
does  not  appear  to  us  to  be  material :  see  Tyers  v.  Rosedale  and  Ferry- 
hill  Iron  Co.,  supra. 

In  conclusion,  we  think  that,  although  the  plaintiff  assented  to  the 
defendants'  request  not  to  deliver  the  twenty-five  tons  of  iron  in  ques- 
tion in  June,  he  was  in  truth  ready  and  willing  then  to  deliver  them,  and 
that  the  defendants  are  at  all  events  estopped  from  averring  the  contrary. 
The  plaintiff  not  having  bound  himself  by  any  valid  agreement  to  give 
further  time,  but  having  for  the  convenience  of  the  defendants  waited 
for  a  reasonable  time  after  the  letter  of  the  9th  of  August,  to  enable  the 
defendants  to  perform  the  contract  on  their  part,  is  entitled  on  the  ex- 
piration of  that  time  to  treat  the  contract  as  broken  by  the  defendants 
at  the  end  of  June,  when  in  truth  it  was  broken. 

The  question  whether  the  damages  ought  to  be  estimated  at  £21 
17s.  6d.,  i.e.,  according  to  the  price  of  iron  at  that  time,  or  at  £25,  i.e., 
according  to  the  price  at  the  end  of  a  reasonable  time  after  the  letter  of 
the  9th  of  August,  was  admitted  to  be  immaterial ;  but,  on  the  principle 
of  Ogle  v.  Lord  Vane,  supra,  we  think  the  plaintiff  was  entitled  to  have 
the  damages  assessed  according  to  the  price  at  the  later  date.  For 
these  reasons,  therefore,  we  are  of  opinion  that  this  rule  to  set  aside  the 
verdict,  and  to  enter  a  nonsuit,  or  to  reduce  the  damages,  ought  to  be 
discharged.  Hide  discharged. 


THOMPSON   v.   GARDINER. 

In  thk  Common  Pleas  Division,  Court  of  Appeal,  June  28, 

1876. 

[Reported  in  1  Common  Pleas  Division,  777.] 

The  judgment  of  the  Court  (Brett,  Grove,  and  Archibald,  JJ.) 
was  delivered  by 

Brett,  J.  This  was  an  action  for  not  accepting  butter  pursuant  to 
contract.  It  was  tried  before  me,  and  I  directed  judgment  to  be  entered 
for  the  plaintiff.  A  motion  has  been  made  to  enter  judgment  for  the 
defendant  in  pursuance  of  leave  reserved  by  me  for  that  purpose,  on 
the  ground  thai  there  was  no  evidence  of  any  memorandum  of  the  con- 
tract    within    the  Statute   of  Frauds.      The    facts    were   these:      The 


952  THOMPSON    V.    GARDINER.  [CHAP.  VI. 

contract  was  made  with  a  person  who  must  betaken  to  be  a  broker,  and 
who  was  acting  for  the  seller  only,  and  not  for  the  buyer.  The  defend- 
ant agreed  upon  the  terms  of  sale  with  the  broker.  These  terms  vvere 
not  disputed.  If  there  was  a  sufficient  memorandum  in  writing  signed 
by  or  on  behalf  of  the  party  to  be  charged,  the  defendant  had  unjus- 
tifiably refused  to  accept  the  butter.  The  broker  sent  a  note  of  the 
contract  to  the  buyer  and  also  to  the  seller.  He  signed  the  note  which 
was  sent  to  the  seller,  but  he  did  not  sign  that  which  he  sent  to  the 
buyer.  He,  however,  entered  in  his  broker's  book  both  the  bought  and 
the  sold  note,  and  signed  them  both.  The  butter  was  tendered  to  the 
defendant  some  time  after  the  note  was  sent  to  him,  he  having  kept  the 
latter  until  then  without  complaint  or  remonstrance.  The  reason  he 
assigned  for  his  refusal  was,  not  that  he  had  not  entered  into  the  con- 
tract, but  that  the  note  sent  to  him  was  not  signed.  I  decline  to  enter 
into  the  terms  of  the  two  notes,  as  to  which  was  the  bought  and  which 
was  the  sold  note.  The  real  question  upon  the  notes  on  this  point 
always  turns  on  the  person  to  whom  the  note  is  sent.  If  the  broker  is 
authorized  by  the  buyer  to  make  a  contract,  the  note  sent  by  him  to  the 
seller  is  the  note  which  is  intended  to  be  the  bargain,  and  vice  cersu. 
The  note  which  was  to  bind  the  defendant  here,  was  the  sold-note.  We 
are  not  driven  to  rely  on  the  notes  in  the  broker's  book,  beeause  the 
note  delivered  to  the  plaintiff  (if  the  broker  had  authority  to  sign  the 
memorandum)  binds  him.  The  authorities  are  conclusive  to  show  that 
the  broker  acting  for  one  of  the  contracting  parties,  making  a  contract 
for  the  other,  is  not  authorized  by  both  to  bind  both.  But  the  broker 
who  makes  a  contract  for  one  may  be  authorized  by  that  person  to 
make  and  sign  a  memorandum  of  the  contract.  That  has  frequently 
been  held.  The  question  here  is  whether  there  was  any  evidence  that 
the  broker  was  so  authorized.  The  evidence  was,  that  a  note  of  the 
bargain  was  sent  to  the  buyer ;  and  that  his  only  objection  was,  not 
that  the  broker  who  sent  it  had  no  authority  to  send  it,  or  that  no  such 
contract  was  made,  but  that  the  memorandum  sent  to  him  was  not 
signed.  That  was  ample  evidence  for  the  jury  that  the  defendant 
recognized  the  authority  of  the  broker  to  sign  for  him.  Luckily,  how- 
ever, the  broker  did  sign  the  note  which  was  to  bind  the  defendant,  that 
is,  the  sold  note.  Then,  this  further  fact  remains,  that  the  broker  kept  a 
book  in  which  both  bought  and  sold  notes  were  entered  and  signed  by 
him.  I  therefore  think  that,  even  if  the  signature  to  the  note  sent  to 
the  seller  was  not  sufficient  to  bind  the  buyer,  the  signature  in  the 
broker's  book  was  enough  to  satisfy  the  statute.  The  broker  being  a 
broker  authorized  to  make  a  memorandum  of  the  contract  on  the 
defendant's  behalf,  the  entry  in  his  book  was  sufficient  evidence  of  a 
memorandum  of  the  bargain  signed  by  a  duly  authorized  agent  within 
the  meaning  of  the  Statute  of  Frauds  to  bind  the  defendant. 

My  Brother  Grove  has  doubts,  and  wishes  me  to  say  that,  in  his 
judgment,  the  fact  of  the  defendant  keeping  the  note  sent  to  him  with- 
out objection  was  not  sufficient  to  show  an  authority  in  the  broker  to 


SECT.  VII.]  LONG   V.    BULLAE  953 

bind  him.  But  he  thinks  that,  inasmuch  as  when  the  defendant  made 
the  objection  he  confined  it  to  sa}'ing,  "  You  did  not  sign  it,"  he  thereby 
admitted  the  agency  of  the  broker  to  make  the  contract  on  his  behalf. 
He  therefore  agrees  with  me  that  judgment  was  rightly  entered  for  the 
plaintiff. 

My  Brother  Archibald  authorizes  me  to  say  that  he  concurs  in  the 
above  judgment,  and  in  the  reasons  I  have  given. 

Judgment  for  the  plaintiff '. 


LONG  v.   MILLAR. 
In  the  Common  Pleas  Division,  Court  op  Appeal,  May  14,  1879. 

[Reported  in  4  Common  Pleas  Division,  450.] 

Action  to  recover  damages  for  breach  of  contract  to  sell  land. 

At  the  trial  before  Manisty,  J.,  during  the  Easter  Sittings  in 
Middlesex,   1878,  the  following  facts  were  proved :  — 

The  defendant  was  an  estate  agent,  and  was  employed  by  one 
Goddard  to  sell  three  plots  of  land  at  Hammersmith  for  the  sum  of 
£310.  Afterwards  Goddard  spent  certain  sums  of  money  in  respect  of 
the  property,  and  became  unwilling  to  sell  it  for  less  than  £450  ;  but 
of  this  change  in  Goddard's  intentions  the  defendant  was  ignorant. 
The  plaintiff  agreed  with  the  defendant  to  buy  the  property  for  £310, 
and  to  pay  a  deposit  of  £31  in  respect  of  the  purchase.  The  plaintiff 
signed  the  following  document :  — 

2lst  September,  1877. 

I  hereby  agree  to  purchase  the  three  plots  (40  feet  frontage)  of 
freehold  land  in  Rickford  Street,  Hammersmith,  for  the  sum  of  three 
hundred  and  ten  pounds,  and  I  agree  to  pay  as  a  deposit  and  in 
part  payment  of  the  aforesaid  purchase-money  the  sum  of  thirty-one 
pounds,  and  to  complete  the  purchase  and  pay  the  balance  of  the 
purchase-money  on  or  before  the  5th  day  of  October  next. 
£310  0  0  purchase-money 
31     0     0     deposit 

£279     0     0     balance.  George  Long. 

The  defendant  signed  a  receipt  for  the  deposit  paid  by  the  plaintiff 
in  the  following  form :  — 

21st  September,  1877. 

Received  of  Mr.  George  Long  the  sum  of  thirty-one  pounds  as  a 
deposit  on  the  purchase  of  three  plots  of  land  at  Hammersmith. 

£31     0     0.  Ciias.   W.     Millar. 

Goddard,  however,  refused  to  complete  the  purchase  for  the  sum 
of  £310,  and  required  £450,  as  the  price  of  the  plots  of  land.  The 
defendant  communicated  these  terms  to  the  plaintiff,  and  offered  to 


954  LONG   V.    MILLAR.  [CHAP.  VI. 

return  the  deposit,  but  the  plaintiff  insisted  upon  having  the  plots  of 
land  at  the  price  of  £310,  and  after  some  correspondence  th<j  present 
action  was  commenced.     The  defendant  paid  into  court   the   sum  of 

£31. 

The  jury  found,  first,  that  the  defendant  sold  absolutely  ;  secondly, 
that  he  sold  as  principal ;  thirdly,  that  he  represented  that  he  had 
authority  to  sell  for  £310;  fourthly,  that  he  actually  had  authority; 
and  they  assessed  the  damages  at  £70.  Upon  these  findings  Manisty, 
J.,  gave  judgment  for  the  plaintiff. 

The  Common  Pleas  Division  ordered  a  new  trial,  on  the  ground  that 
the  second  finding  of  the  jury  was  against  the  weight  of  evidence. 

The  plaintiff  appealed  against  the  order  of  the  Common  Pleas 
Division. 

The  defendant  appealed  from  the  judgment  of  Manisty,  J. 

Holl,  Q.  C,  and  G.  Sills,  for  the  defendant. 

Francis  Turner,  and  A.  G.  M.  Mclntyre,  for  the  plaintiff. 

Cur.  adv.  wit. 

Tiiesiger,  L.  J.  The  first  question  is,  whether  there  is  a  sufficient 
reference  in  the  receipt  signed  by  the  defendant  to  allow  us  to  connect 
it  with  the  document  signed  by  the  plaintiff.  When  it  is  proposed  to 
prove  the  existence  of  a  contract  by  several  documents,  it  must  appear 
upon  the  face  of  the  agreement  signed  by  the  party  to  be  charged  that 
reference  is  made  to  another  document ;  and  this  omission  cannot  be 
supplied  by  verbal  evidence.  If,  however,  it  appears  from  the  instru- 
ment itself  that  another  document  is  referred  to,  that  document  may 
be  identified  by  verbal  evidence.  A  simple  illustration  of  this  rule  is 
given  in  Ridgway  v.  Wharton,  6  H.  L.  C.  238,  27  L.  J.  (Ch.)  46; 
there  "  instructions"  were  referred  to  ;  now  instructions  may  be  either 
written  or  verbal ;  but  it  was  held  that  parol  evidence  might  be  adduced 
to  show  that  certain  instructions  in  writing  were  intended.  This  rule 
of  interpretation  is  merely  a  particular  application  of  the  doctrine  as 
to  latent  ambiguity.  Although  parol  evidence  may  be  given  to  identify 
the  document  intended  to  be  referred  to,  it  must  be  clear  that  the 
words  of  the  document  signed  by  the  party  to  be  charged  will  extend 
to  the  document  sought  to  be  identified.  In  the  present  case  the 
difficulty  is  whether  there  is  a  sufficient  reference  in  the  receipt  to  the 
document  signed  by  the  plaintiff.  This  document  is  somewhat  in- 
formal, and  does  not  contain  such  language  as  we  should  expect  a 
lawyer  to  use;  nevertheless,  it  contains  all  the  terms  necessary  to 
create  a  valid  contract  except  the  name  of  the  vendor ;  and  the  receipt 
contains  the  word  il  purchase,"  which  must  refer  to  the  purchase  of 
the  plots  of  land  mentioned  in  the  document  signed  by  the  plaintiff ; 
if  we  read  the  two  instruments  together,  we  shall  not  be  unduly  strain* 
ing  the  law  by  holding  that  the  two,  taken  together,  form  a  complete 
contract;  our  decision  will  not  go  beyond  the  decisions  in  Allen  v. 
Bennett,  3  Taunt.  1G7,  and  in  Baumaun  v.  James,  Law  Rep.  3  Ch. 


SECT.  Vir.]  OLIVER   V.    HUNTING.  955 

508.  If  the  two  documents  can  be  connected  together,  the  objection 
fails  that  no  vendor  is  named.  These  documents  were  meant  to  be 
exchanged  between  the  parties;  the  one  was  drawn  up  with  the  inten- 
tion that  it  should  operate  as  a  complete  agreement ;  the  other  con- 
tained an  acknowledgment  of  the  payment  of  the  deposit ;  they  were 
respectively  signed  by  the  parties,  both  of  whom,  it  must  be  taken  on 
the  findings  of  the  jury,  intended  to  bind  themselves  personally.  The 
documents  were  meant  to  be  read  and  compared  with  one  another, 
and  I   think  them  sufficient  to  constitute  a  contract. 

The  only  ground  remaining  to  be  considered  is  whether  there  should 
be  a  new  trial.  I  think  that  although  the  defendant  was  an  estate 
agent,  there  is  some  ground  for  saying  that  he  intended  to  bind  him- 
self personally  ;  therefore  we  cannot  say  that  the  findings  were  so 
utterly  wrong  as  to  enable  us  to  enter  judgment  for  him.  There  must 
be  a  new  trial.  Appeals  dismissed.1 


OLIVER   v.   HUNTING. 
In  the  Chancer?  Division,  February  2,  3,  1890. 

[Reported  in  44  Chancery  Division,  205. | 

In  August,  1888,  Emma  Oliver,  a  married  woman,  possessed  of  con- 
siderable separate  estate,  negotiated  with  a  Mr.  Hunting  for  the  pur- 
chase of  a  freehold  property  known  as  the  Fletton  Manor  House  estate. 
Eventually  she  agreed  to  purchase  it  for  £2,375,  and  on  the  7th  of  Sep- 
tember, 1888,  he  signed  the  following  document:  — 

Memorandum  of  terms  of  agreement  between  Mr.  Hunting  and 
Mrs.  Oliver:  — 

Price  £2,375. 

Vendor  to  make  good  title. 

Purchaser  to  pay  for  her  own  convej'ance. 

Fixtures  included  in  purchase. 

Purchase  to  be  settled  as  soon  as  possible. 

Possession  on  25th  September. 

Deposit  to  be  paid  on  the  10th. 

On  the  12th  of  September,  1888,  Mr.  Hunting  wrote  and  sent  a  letter 
to  Mrs.  Oliver  in  the  following  words  :  —  "I  beg  to  acknowledge  receipt 
of  check  value  £375  on  account  of  the  purchase-money  for  the  Fletton 
Manor  House  estate." 

Mr.  Hunting  having  refused  to  complete,  Mrs.  Oliver  commenced  this 
action  against  him,  claiming  specific  performance  of  the  contract  of  the 
7th  of  September,  1888,  ami  alleging  in  her  statement  of  claim  that  in 
pursuance  of  the  said  contract  she,  on  the  10th  of  September,  1888,  paid 

'■  Bramwell  and  Baggallav,  L.  JJ.,  delivered  concurring  opinions. 


956  OLIVER   VI    HUNTING.  [CHAP.  VI. 

to  Mr.  Hunting  the  sum  of  £375  as  a  deposit  and  in  part  payment  of 
the  said  purchase-money,  and  submitting  that  the  memorandum  ot  the 
7th  and  the  letter  of  the  12th  of  September,  1888,  formed  a  valid  con 
tract  and  a  sufficient  memorandum  within  the  Statute  of  Frauds. 

Mr.  Hunting,  by  his  statement  of  defence,  did  not  admit  any  of  the 
allegations  in  the  statement  of  claim,  and  relied  on  the  Statute  of  Frauds. 
Issue  was  joined.     This  was  the  trial  of  the  action. 

Mrs.  Oliver  in  her  evidence  deposed  that  she  sent  the  check  of  £375, 
mentioned  in  the  letter  of  the  12th  of  September,  on  account  of  the  pur- 
chase-money of  the  Fletton  Manor  House  estate.  It  was  part  of  the 
£2,375.  No  other  money  was  payable  by  her  to  the  defendant.  The 
£375  was  the  balance  that  Mr.  Hunting  was  to  receive,  because  the  £2,000 
was  to  be  paid  over  to  a  mortgagee  of  the  property-  Her  solicitor,  Mr. 
Law,  was  going  to  find  the  £2,000  for  her. 

Neville,  Q.  C,  and  Dunning,  for  the  plaintiff. 

Warmington,  Q.  C,  and  Swinfen  Eady,  for  the  defendant. 

Kekewich,  J.  The  elementary  proposition  about  which  there  is  no 
doubt  is  this,  —  the  memorandum  to  be  signed  by  the  party  sought  to 
be  charged,  so  as  to  bring  a  particular  case  within  the  Statute  of 
Frauds,  need  not  be  on  one  piece  of  paper,  nor  need  it  be  a  complete 
document,  signed  by  the  party  at  one  and  the  same  time.  It  may  be 
contained  in  two  or  more  pieces  of  paper,  but  they  must  be  so  con- 
nected that  you  can  read  them  together,  so  as  to  form  one  memorandum 
of  the  contract  between  the  parties.  Directly  you  get  beyond  that, 
you  get  into  difficulty.  One  can  illustrate  that  in  a  simple  manner. 
An  intending  purchaser  accepts  an  offer  made  b}'  a  proposing  vendor 
thus:  "In  reply  to  your  letter  of  the  14th  instant."  Can  one  annex 
to  that  reply  the  letter  of  the  14th  instant  ?  Surely  one  cannot,  with- 
out inquiring  what  letter  it  is ;  unless  the  purchaser  has,  with  unusual 
prudence,  completed  the  reference  by  saying,  "  In  reply  to  your  letter 
of  the  14th  instant,  a  copy  of  which  is  on  the  other  side."  In  the 
absence  of  any  such  complete  evidence  as  that,  one  must  inquire  what 
the  letter  of  the  14th  instant  was,  because  non  constat,  it  may  have 
been  a  reference  to  any  one  of  half  a  dozen  different  letters  ;  and  so, 
from  that  very  simple  illustration,  one  can  go  through  a  large  variety 
of  more  complex  ones.  It  is  not  for  me  to  say  that  the  old  rule  was 
better  or  worse  than  the  present  rule  ;  but  that  it  was  a  different  rule, 
notwithstanding  the  criticisms  in  the  cases  which  Mr  Neville  has  given 
me,  I  have  no  doubt.  I  take  the  old  rule  from  the  original  edition  of 
Lord  Blackburn,  On  the  Contract  of  Sale,  which  is  cited  —  I  have  not 
the  original  work  before  me  —  by  Williams,  J.,  in  North  Staffordshire 
Railway  Company  v.  Peek,  E.  B.  &  E.  1001,  where,  after  referring  to 
Hinde  ".  Whitchouse,  7  East,  558,  and  Kenworthy  v.  Scholield,  2  B. 
&  C.  !)1"),  he  savs :  "  The  principle  of  *hese  cases  seems  to  me  to  be 
wdl  stated  in  the  same  work  by  tny  Brother  Blackburn,  as  follows: 
k  II' tin!  contents  of  the  signed  paper  themselves  make  reference  to  the 
others  so  as  to  show  by  internal  evidence  that  the  papers  refer  to  each 


SECT.  VII.]  OLIVER   V.    HUNTING.  057 

other,  they  may  be  all  taken  together  as  one  memorandum  in  writing 
[:is  in  the  ease  which  I  have  mentioned  of  a  letter  referring  to  a  pre- 
vious letter,  of  which  the  copy  is  annexed]  ;  but  if  it  is  necessary,  in 
order  to  connect  them,  to  give  evidence  of  the  intention  of  the  parties 
that  the}'  should  be  connected,  shown  hy  circumstances  not  apparent 
on  the  face  of  the  writings,  the  memorandum  is  not  a.l  in  writing,  for 
it  consists  partly  of  the  contents  of  the  writings  and  partly  of  the  ex- 
pression  of  an  intention  to  unite  them,  and  that  expression  is  not  in 
writing.'"  The  old  case  of  Boy  dell  v  Drummond,  11  East,  142,  and 
some  other  eases,  might  be  consistent  with  that  rule  ;  but  certainly  of 
late  a  different  rule  has  been  introduced,  and  it  is  a  rule,  to  say  the 
least,  consistent  with  the  convenience  of  mankind,  because  if  you  were 
to  exclude  parol  evidence  to  explain  such  a  doubtful  reference  as  "  the 
letter  of  the  14th  instant,"  or  it  might  be  simply  "  your  letter,"  the 
result  might  in  a  large  number  of  cases  be  gross  injustice.  Now  I  take 
it  to  be  quite  settled  that  in  a  case  of  that  kind  you  rnay  give  parol  evi- 
dence to  show  what  the  document  referred  to  was.  I  take  it  that  you 
may  go  further  than  that,  and  that  if  you  find  a  reference  to  something, 
which  may  be  a  conversation,  or  may  be  a  written  document,  }'ou  may 
give  evidence  to  show  whether  it  was  a  conversation  or  a  written  docu- 
ment ;  and.  having  proved  that  it  was  a  written  document,  you  may 
put  that  written  document  in  evidence,  and  so  connect  it  with  the  one 
already  admitted  or  proved.  So  far  there  is  no  difficult}-.  That  was 
applied  in  the  case  of  Ridgway  v..  Wharton,  6  H.  L.  C.  238,  where  the 
question  was  on  the  meaning  of  instructions  which  did  not  by  any 
means  necessarily  point  to  a  written  document ;  but  later  the  cases 
have  gone  further  than  that,  and  it  seems  to  me  that  Long  v.  Millar, 
4  C.  P.  D.  450,  followed  by  Field,  J.,  in  Cave  v.  Hastings,  7  Q.  B.  D. 
125,  does  establish  a  very  much  larger  series  of  exceptions.  In  Long 
v.  Millar  I  profess  myself  rather  embarrassed  by  the  judgment  of 
Thesiger,  L.  J.,  —  that  is  to  say,  I  am  unable  quite  to  understand  what 
he  means  by  the  passages  on  p.  456,  which  seem  to  me  rather  incon- 
sistent; but  seeing  that  I  have  the  judgments  of  Bramwell  and  Bag- 
gallay,  L.  JJ.,  without  the  slightest  doubt  or  embarrassment,  and  that 
Thesiger,  L.  J.,  concurred  in  their  judgment.  I  think  I  may  put  any 
difficulty  of  that  kind  aside.  Bramwell,  L.  J.,  gave  a  judgment  which, 
beyond  its  reference  to  the  particular  case,  is  exceedingby  useful  as 
illustrating  this  branch  of  law  ;  because  he  gives  an  illustration  which 
seems  to  me  to  go  to  the  root  ot  the  matter.  The  illustration  he  gives  is 
this (4  C.  1'.  I).  454),  "Suppose  that  A.  writes  to  B.,  saying  that  he  will  give 
£1,000  for  B.'s  estate,  and  at  the  same  time  states  the  terms  in  detail, 
and  suppose  that  15.  simply  writes  back  in  return,  '  I  accept  your  offer.' 
In  that  case  there  may  be  an  identification  of  the  documents  by  parol 
evidence,  and  it  may  be  shown  that  the  offer  alluded  to  by  B.  is  that 
made  by  A'.,  without  infringing  the  Statute  of  Frauds,  sec.  4,  which 
requires  a  note  or  memorandum  in  writing."  If  that  is  sound,  which 
I  take  it  to  be,  according  to  other  cases,  and  according  to  the  convic- 


958  OLIVER   V.    HUNTING.  [CHAP.  VI. 

tions  of  Judges  in  older  cases  which  are  introduced  into  the  old  law, 
it  is  difficult,  perhaps,  to  say  where  parol  evidence  is  to  stop  ;  but  sub- 
stantially it  never  stops  short  of  this,  that  wherever  parol  evidence 
is  required  to  connect  two  written  documents  together,  then  that  parol 
evidence  is  admissible.     You  are  entitled  to  rely  upon  a  written  docu- 
ment, which  requires   explanation.     Perhaps  the  real  principle   upon 
which  that  is  based  is,  that  you  are  always  entitled  in  regarding  the 
construction  and   meaning  of  a  written  document  to  inquire  into  the 
circumstances  under  which   it  was  written,   not  in  order  to  find   an 
interpretation  by  the  writer  of  the  language,  but  to  ascertain  from  the 
surrounding  facts  and  circumstances,  with  reference  to  what,  and  with 
what  intent,  it  must  have  been  written.     I  think  myself  that  must  be 
the  principle  on  which  parol  evidence  of  this  kind  is  admitted.     Turn- 
ing to  the  case  before  me,  I  find  a  letter  of  the  12th  of  September, 
1888,  written  by  the  defendant  to  Mrs.  Oliver,  and  in  that  he   says  : 
"  I  beg  to  acknowledge  receipt  of  check,  value  £375,  on  account  of  the 
purchase-money  for  the  Fletton  Manor  House  estate,  for  which  I  thank 
you."     I  have  two  things  here  perfectly  clear,  that  there  is  a  property 
called  Fletton  Manor  House  estate,  which  constitutes  the  subject  of  a 
purchase,  and,  therefore,  the  subject  of  a  sale.     I  have  also  that  £375 
is  part  of  the  purchase-money  for  that  house  ;  but,  beyond  that  I  have 
no  terms  of  a  contract.     I  am  entitled  to  consider  the  circumstances 
under  which  the  letter  was  written,  in  order  to  give  any  meaning  that 
I  properly  can  to  it —  not  to  add  terms  to  it,  but  to  find  out  what  the 
meaning  necessarily  must  be,  having  regard  to  the  facts  and  circum- 
stances —  and,  having  got  the  evidence  which  I  have  in  this  case,  the 
conclusion   is  inevitable  that  it  refers  to  a  previous  memorandum  of 
terms  of  agreement  under  which  Mrs.  Oliver  becomes  the  purchaser  of 
this  particular  property  for  the  price  of  £2,375,  on  account  of  which 
the  check  for  £375  was  sent.     Having  got  that  evidence  in,  having  got 
the   connection  between  the  two  documents,   I   have  then  enough  to 
enable  me  to  read  the  two  documents  together,  and,  reading  them  to- 
gether, I  have  a  distinct  memorandum  of  contract,  specifying  all  the 
terms,  the  second  one  supplying  what  the  first  one  omitted   to  give, 
namely,  singularly  enough,  the  property  which  was  intended  to  be  pur- 
chased and  sold.     That  being  so,  the  objection  that  there  is  no  memo- 
randum within  the  Statute  of  Frauds  fails. 

I  have  not  referred  to  the  late  case  of  Studds  v.  Watson,  28  Ch.  D. 
305,  before  Mr.  Justice  North,  because  I  am  not  quite  sure  how  far 
that  learned  Judge  intended  to  go.  If  I  am  right  in  my  view  of  his 
judgment,  that  he  only  allowed  the  parol  agreement  to  be  proved  to  see 
whether  it  connected  the  two  written  documents,  and  then,  having  got 
it  in  evidence,  found  that  it  did,  and  so  was  able  to  connect  the  two 
documents  —  if  that  is  the  right  view,  which  1  believe  it  to  be,  of  what 
he  intended— then  it  really  follows  Long  v.  Millar,  supra,  and  Cave 
v.  Hastings,  supra,  to  both  of  which  he  referred  in  his  judgment. 

Under  these  circumstances,  I  think  the  plaintiff  is  entitled  to  judg- 
ment for  specific  performance,  and,  of  course,  to  the  costs  of  the  action. 


SECT.  VII.]  MKRRITT    V.    CLASON.  (J5'J 


MERRITT   and   MERRITT   v.    CLASON. 
Supreme  Court  of  New  York,  January  Term,  1815. 

[Reported  in  12  Johnson,  102.] 

Tins  was  an  action  of  assumpsit  tried  at  the  New  York  sittings  in 
April  last  before  Mr.  Justice  Yates. 

John  Townsend,  a  witness  for  the  plaintiffs,  testified  that  he  was  a 
broker,  and  was  employed  bjT  the  defendant  to  purchase  rye.  On  the 
18th  of  February,  1812,  he  applied  to  Isaac  Wright  &  Son,  the  agents 
of  the  plaintiffs  in  New  York,  and  agreed  to  purchase  of  them  10,000 
bushels  of  rye  at  $1  per  bushel,  and  they  authorized  him  to  sell  the 
same  to  the  defendant  on  the  terms  agreed  on  ;  the  witness  informed 
the  defendant  of  the  terms  of  sale,  and  was  directed  by  him  to  make 
the  purchase  accordingly.  The  witness  then  went  to  Wright  &  Son 
and  closed  the  bargain  with  them  as  agents  of  the  plaintiffs,  and  in 
their  presence  wrote  in  his  memorandum  book  with  a  lead-pencil  as 
follows  :  "  February  18th,  bought  of  Daniel  &  Isaac  Merritt  (the  plain- 
tiffs), by  Isaac  Wright  &  Son,  10,000  bushels  of  good  merchantable 
rye  at  SI  per  bushel,  deliverable  in  the  last  ten  or  twelve  clays  of  April 
next  alongside  any  vessel  or  wharf  the  purchaser  may  direct,  for  Isaac 
Clason  of  New  York,  payable  on  delivery."  All  the  other  memoranda 
in  the  same  book  were  written  with  a  lead-pencil.  Soon  after  the  pur- 
chase was  thus  completed  the  witness  informed  the  defendant  of  it,  but 
did  not  give  him  a  copy  of  the  memorandum. 

The  plaintiffs  repeatedly  tendered  the  rye  to  the  defendant  according 
to  the  terms  of  the  agreement,  particularly  on  the  14  th  and  30th  days 
of  April,  and  the  defendant  refused  to  accept  and  pay  for  it.  On  the 
1st  of  May  the  plaintiffs  addressed  a  letter  to  the  defendant,  giving  him 
notice  that,  unless  he  received  and  paid  them  for  the  rye  according  to 
the  contract,  they  should,  on  Tuesday  (the  4th  of  May)  at  noon,  cause 
the  same  to  be  sold  at  public  auction  at  the  Tontine  coffee-house,  and 
hold  him  accountable  for  the  deficiency,  if  it  should  sell  for  less  than 
the  price  mentioned  in  the  contract,  and  the  expenses.  The  defendant 
continuing  to  refuse  to  receive  the  rye  or  to  pay  for  it,  it  was  according 
to  the  notice  sold  at  public  auction,  and  the  present  suit  was  brought  to 
recover  the  difference  between  the  net  proceeds  of  such  sale  and  the 
contract  price. 

A  verdict  was  taken  for  the  plaintiffs,  subject  to  the  opinion  of  the 
court  on  a  case  containing  the  facts  above  stated,  and  which  either 
party  was  to  be  at  liberty  to  turn  into  a  special  verdict. 

Platt,  J.,  delivered  the  opinion  of  the  court.  The  only  point  is 
whether  the  memorandum  made  by  John  Townsend  was  a  sufficient 
memorandum  of  the  contract  within  the  Statute  of  Frauds  to  bind  the 
defendant. 


960  MEKRITT   V.   CLASON.  [CHAP.  VL 

It  is  objected  by  the  defendant's  counsel,  — 

1.  That  the  memorandum  is  not  "in  writing,"  being  made  with  a 
lead-pencil  only  ; 

2.  That  it  is  not  "  signed  "  by  the  defendant  nor  by  his  agent ; 

3.  That  it  is  not  binding  on  the  defendant,  because  his  agent  did  not 
furnish  him  with  a  copy  of  it. 

I  have  no  doubt  that  the  memorandum  required  by  the  statute  may 
as  well  be  written  with  a  lead-pencil  as  with  a  pen  and  ink  ;  and  it  is 
observable  that  in  most  of  the  reported  cases  on  this  head  the  memo- 
randa were  written  with  a  lead-pencil,  and  no  counsel  until  now  has 
ever  raised  that  objection.1 

I  think  it  clear  also  from  the  authorities  that  this  memorandum  was 
signed  according  to  the  statute. 

It  is  not  disputed  that  the  authorization  of  the  agent  for  such  pur- 
pose need  not  be  in  writing.  In  the  body  of  this  memorandum  the 
name  of  Isaac  Clason  the  defendant  is  written  by  his  agent,  whom  he 
had  expressly  authorized  to  make  this  contract.  The  memorandum 
therefore  is  equally  binding  on  the  defendant  as  if  he  had  written  it 
with  his  own  hand ;  and  if  he  had  used  his  own  hand  instead  of  the 
hand  of  his  agent,  the  law  is  well  settled  that  it  is  immaterial  in  such 
a  case  whether  the  name  is  written  at  the  top  or  in  the  body  or  at  the 
bottom  of  the  memorandum.  It  is  equally  a  signing  within  the  statute. 
Saunderson  v.  Jackson  and  Another,  2  Bos.  &  Pull.  238  ;  1  Esp.  199  ; 
\  P.  Wins.  770,  note  l.2 

The  third  objection  is  absurd.  If  the  defendant's  agent  neglected 
his  duty  in  not  furnishing  his  employer  with  a  copy  of  this  memo- 
randum, it  certainly  cannot  affect  the  rights  of  the  plaintiff,  under  that 
agreement. 

The  memorandum  states  with  reasonable  certainty  every  essential 
part  of  the  agreement.  The  court  are  of  opinion  that  the  plaintiffs  are 
entitled  to  judgment.  Judgment  for  the  plaintiffs? 

1  Clason  v.  Bailey,  14  Johns.  484  ;  Draper  v.  Pattina,  2  Speers,  292,  accord. 

2  Drury  v.  Young,  58  Md.  546;  Tingley  v.  Bellingham  Bay  Boom  Co.,  5  Wash. 
St.  644,  accord.  But  under  the  New  York  statute  as  subsequently  amended,  requiring 
the  memorandum  to  be  "subscribed,"  the  signature  must  be  at  the  end.  Davis  v. 
Shields,  -2t>  Wend.  341  ;  James  v.  Patten,  6  N.  Y.  9  ;  Doughty  v.  Manhattan  Brass  Co., 
101    N.  Y.  044. 

3  In  Clason  v.  Bailey  14  Johns.  541,  the  fact9  were  substantially  the  same  ns  in 
Merritt  v.  Clason,  and  the  additional  objection  was  made  that  the  memorandum  was 
not  signed  by  the  plaintiff  as  well  as  the  defendant.  The  objection  was  overruled. 
This  decision  was  followed  in  Justice  v.  Lang,  42  N.  Y.  493,  and  it  expresses  the  gen- 
erally received  doctrine  in  the  United  States,  as  well  as  in  England.  Browne  on  the 
Statute  of  Frauds  ,  §§  365, 366  ;  Cavanaugh  v.  Casselman,  88  Cal.  543  ;  Easton  '•.  Mont- 
gomery, 90  Cal.  307  ;  Hodges  v.  Rowing,  58  Conn.  12  ;  Cunningham  v.  Williams,  43 
Mo,  App.  629.  But  a  contrary  decision  has  been  made  in  Michigan,  Wilkinson  v. 
Heavenrich,  58  Mich.  574. 


SECT.  VII.]  SALMON    FALLS   MANUF.    CO.   V.    GODDAED.  961 


THE  SALMON  FALLS  MANUFACTURING  COMPANY,  Plain- 
tiff in  Error,  v.  WILLIAM  W.  GODDARD. 

Supreme  Court  of  the  United  States,  December  Term,  1852. 

[Reported  in  20  Curtis,  276;  14  Howard,  446.] 

The  case  is  stated  in  the  opinion  of  the  court. 

C.  B.   Goodrich,  for  the  plaintiffs. 

Johnson  and  George  T.  Davis,  contra. 

Nelson,  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Circuit  Court  of  the  United  States  for 
the  District  of  Massachusetts. 

The  suit  was  brought  by  the  plaintiffs  in  the  court  below  to  recover 
the  price  of  300  bales  of  brown  and  of  100  cases  of  blue  drills,  which 
they  had  previously  sold  to  the  defendant. 

The  contract  for  the  purchase  was  made  with  the  house  of  Mason  & 
Lawrence,  agents  of  the  plaintiffs  in  Boston,  on  the  19th  September, 
1850,  and  a  memorandum  of  the  same  signed  by  the  parties.  A  bill  of 
parcels  was  made  out  under  date  of  30th  September,  stating  the  pur- 
chase of  the  goods  by  the  defendant,  carrying  out  prices  and  footing  up 
the  amount  at  $18,565.03  ;  also  the  terms  of  payment,  — note  at  twelve 
months,  payable  to  the  treasurer  of  the  plaintiffs.  This  was  forwarded 
to  the  defendant  on  the  11th  October,  and  in  pursuance  of  an  order  from 
him  the  300  bales  were  sent  from  their  establishment  at  Salmon  Falls  by 
the  railroad,  and  arrived  at  the  depot  in  Boston  on  the  30th  October,  of 
which  notice  was  given  to  the  defendant  on  the  same  day,  and  a  deliv- 
er}' tendered.  He  requested  that  the  goods  should  not  be  sent  to  his 
warehouse  or  place  of  delivery,  for  the  reason,  as  subsequently  stated  by 
his  clerk,  there  was  no  room  for  storage.  The  agents  of  the  plaintiffs 
the  next  da}-  renewed  the  tender  of  delivery  by  letter,  adding  that  the 
goods  remained  at  the  depot  at  his  risk  and  subject  to  storage,  to  which 
no  answer  w?as  returned.  On  the  night  of  the  4th  November  the  railroad 
depot  was  consumed  b}-  fire,  and  with  it  the  300  bales  of  the  goods  in 
question.  The  price  was  to  be  paid  by  a  note  at  twelve  months,  which 
the  defendant  refused  to  give ;  upon  which  refusal  this  action  was 
brought. 

The  court  below  at  the  trial  held  that  the  written  memorandum,  made 
at  the  time  of  entering  into  the  contract  between  the  agents  of  the  plain- 
tiffs and  the  defendant,  was  not  sufficient  to  take  the  case  out  of  the 
Statute  of  Frauds,  and  as  there  was  no  acceptance  of  the  goods  the 
plaintiffs  could  not  recover. 

As  we  differ  with  the  learned  judge  who  tried  the  cause  as  to  the  suf- 
ficiency of  the  written  memorandum,  the  question  upon  the  statute  is 
the  only  one  that  it  will  be  material  to  notice.  The  memorandum  is  as 
follows :  — 

61 


962  SALMON    FALLS    MAXUF.    CO.    V.   GODDARD.  [CHAP.  VX 

Sept.  19,  — W.  W.  Goddard,  12  mos. 

300  bales  S.  F.  drills 7J 

100  cases  blue     do 8| 

Credit  to  commence  when  ship  sails  ;  not  after  Deer.  1  — 

delivered  free  of  charge  for  truckage. 
The  blues,  if  color  satisfactory  to  purchasers. 

R.  M.  M. 
W.  W.  G. 

The  statute  of  Massachusetts  on  this  subject  is  substantially  the 
same  as  that  of  29  Car.  2,  c.  3,  §  17,  and  declares  that  no  contract  for 
the  sale  of  goods,  &c.,  shall  be  valid,  &c,  "  unless  some  note  or  memo- 
randum in  writing  of  the  bargain  be  made  and  signed  by  the  party  to 
be  charged  thereb}7  or  b}T  some  person  thereunto  b}T  him  lawfully 
authorized." 

The  word  "  bargain"  in  the  statute  means  the  terms  upon  which  the 
respective  parties  contract ;  and  in  the  sale  of  goods  the  terms  of  the 
bargain  must  be  specified  in  the  note  or  memorandum,  and  stated  with 
reasonable  certainty,  so  that  the}-  can  be  understood  from  the  writing 
itself  without  having  recourse  to  parol  proof;  for  unless  the  essential 
terms  of  the  sale  can  be  ascertained  from  the  writing  itself  or  b}T  a  ref- 
erence contained  in  it  to  something  else,  the  memorandum  is  not  a 
compliance  with  the  statute. 

This  brief  note  of  the  contract  however,  like  all  other  mercantile  con- 
tracts, is  subject  to  explanation  by  reference  to  the  usage  and  custom  of 
the  trade,  with  a  view  to  get  at  the  true  meaning  of  the  parties  as  each 
is  presumed  to  have  contracted  in  reference  to  them.  And  although 
specific  and  express  provisions  will  control  the  usage  and  exclude  any 
such  explanation,  }-et,  if  the  terms  are  technical,  or  equivocal  on  the 
face  of  the  instrument,  or  made  so  by  reference  to  extraneous  circum- 
stances, parol  evidence  of  the  usage  and  practice  in  the  trade  is  admis- 
sible to  explain  the  meaning.  2  Kent,  C.  556,  and  note  3  ;  id.  2G0,  and 
note ;  Long  on  Sales,  197  (ed.  1839) ;  1  Gale  &  Davis,  52. 

Extraneous  evidence  is  also  admissible  to  show  that  a  person  whose 
name  is  affixed  to  the  contract  acted  only  as  an  agent,  thereby  enabling 
the  principal  either  to  sue  or  be  sued  in  his  own  name  ;  and  this,  though 
it  purported  on  its  face  to  have  been  made  by  the  agent  himself,  and  the 
principal  not  named.  Higgins  v.  Senior,  8  M.  &  Wels.  834  ;  Trueman 
v.  Loder,  11  Ad.  &  Ell.  589. 1  Lord  Denman  observed  in  the  latter  case 
k'  that  parol  evidence  is  always  necessary  to  show  that  the  part}'  sued  is 
the  party  making  the  contract,  and  bound  by  it ;  whether  he  does  so  in 
his  own  name  or  in  that  of  another,  or  in  a  feigned  name,  and  whether 
the  contract  be  signed  by  his  own  hand  or  that  of  an  agent,  are  inquiries 
not  different  in  their  nature  from  the  question,  Who  is  the  person  who 
has  just  ordered  goods  in  a  shop?     If  he  is  sued  for  the  price,  and  his 

1  Williams  v.  Bacon,  2  Gray,  387,  accord. 


SECT.  Vir.]  SALMON    FALLS    MANUF.    CO.    V.    GODDARD.  963 

identity  made  out,  the  contract  is  not  varied  by  appearing  to  have  been 
made  by  him  in  a  name  not  his  own."  l 

So  the  signature  of  one  of  the  parties  is  a  sufficient  signing  to  charge 
the  firm.     Soames  v.  Spencer,  1  D.  &  R.  32  ;  Long  on  Sales,  08. 

It  has  also  been  held  in  the  case  of  a  sold  note  which  expressed 
"  eighteen  pockets  of  hops  at  100s.,"  that  parol  evidence  was  admissible 
to  show  that  the  100s.  meant  the  price  per  cwt.  Spicer  v.  Cooper,  1 
Gale  &  D.  52,  5  Jurist,  1036. 

The  memorandum  in  that  case  was  as  follows  :  — 

Sold  to  Waite  Spicer,  of  S.  Walden,  18  pos.  Kent  hops,  as  under  July 
23,  1840  ;  10  pos.  Barlow  East  Kent,  1839  ;  8  pos.  Springall  Goodhurst 
Kent,  1839,  100s.  Delivered. 

John  Cooper. 

Evidence  was  admitted  on  the  trial  to  prove  that  the  100s.  was  under- 
stood in  the  trade  to  refer  to  the  price  per  cwt.,  and  the  ruling  approved 
by  the  King's  Bench.  Lord  Denman  put  a  case  to  the  counsel  in  the 
argument  to  illustrate  his  view,  that  bears  upon  the  case  before  us.  Sup- 
pose, he  said,  the  contract  had  been  for  ten  butts  of  beer,  at  one  shilling, 
the  ordinary  price  of  a  gallon,  —  and  intimated  that  the  meaning  could 
hardly  be  mistaken. 

Now,  within  the  principles  above  stated,  we  are  of  opinion  that  the 
memorandum  in  question  was  a  sufficient  compliance  with  the  statute. 
It  was  competent  to  show  by  parol  proof  that  Mason  signed  for  the  firm 
of  Mason  &  Lawrence,  and  that  the  house  was  acting  as  agents  for  the 
plaintiffs,  a  company  engaged  in  manufacturing  the  goods  which  were 
the  subject  of  the  sale  ;  and  also  to  show  that  the  figures  7^  and  8|,  set 
opposite  the  300  bales  and  100  cases  of  goods,  meant  seven  and  a  quarter 
cents  and  eight  and  three-quarter  cents  per  yard. 

The  memorandum,  therefore,  contains  the  names  of  the  sellers  and  of 
the  biryer,  the  commodity,  and  the  price  ;  also  the  time  of  credit  and 
conditions  of  the  delivery;  and  in  the  absence  of  any  specified  time  or 
place  of  delivery,  the  law  will  supply  the  omission,  namely,  a  reason- 
able time  after  the  goods  are  called  for,  and  usual  place  of  business  of 
the  purchaser,  or  his  customary  place  for  the  delivery  of  goods  of  this 
description. 

In  respect  to  the  giving  of  the  note,  which  was  to  run  during  the 
period  of  the  credit,  it  appears  to  be  the  uniform  custom  of  the  house  of 
Mason  &  Lawrence  to  take  notes  for  goods  sold  of  this  description. 
The  defendant  was  one  of  their  customers  and  knew  this  usage  ;  and  it 

1  In  Bibb  v.  Allen,  149  U.  S.  481,  the  memorandum  relied  on  was  made  up  of  slip 
contracts.  The  court  said  :  "  Tt  is  is<>  valid  objection  to  these  'slip  contracts.*  executed 
in  duplicate,  that  the  sales  purported  to  be  made  on  account  of  'Albert,'  'Alfred,' 
'Alexander,'  '  Amanda,'  and  '  Winston,'  etc.,  which  names  were  adopted  bythe  defend- 
ants, and  which  represented  them  and  their  account.  Parol  evidence  was  clearly  com- 
petent to  show  that  these  fictitious  names,  which  defendants  had  adopted,  represented 
them  as  the  parties  for  whose  account  the  sales  were  made." 


964  SALMON   FALLS   MANUF.    CO.    V.    GODDARD.  [CHAP.  VI. 

is  a  presumption  of  law,  therefore,  that  the  purchase  was  made  with 
reference  to  it,  there  being  no  stipulation  to  the  contrary  in  the  contract 
of  the  parties. 

We  are  also  of  opinion,  even  admitting  that  there  might  be  some 
obscurity  in  the  terms  of  the  memorandum,  and  intrinsic  difficulty  in  a 
proper  understanding  of  them,  that  it  would  be  competent,  under  the 
circumstances  of  the  case,  to  refer  to  the  bill  of  parcels  delivered  for 
the  purpose  of  explanation.  We  do  not  say  that  it  would  be  a  note  in 
writing  of  itself  sufficient  to  bind  the  defendant  within  the  statute  ; 
though  it  might  be  to  bind  the  plaintiff. 

It  was  a  bill  of  sale  made  out  by  the  seller,  and  contained  his  under- 
standing of  the  terms  and  meaning  of  the  contract ;  and  having  been 
received  by  the  buyer,  and  acquiesced  in  (for  the  order  to  have  the 
goods  forwarded  was  given  after  it  was  received),  the  natural  inference 
would  seem  to  be  that  the  interpretation  given  was  according  to  the 
understanding  of  both  parties.  It  is  not  necessary  to  say  that  this 
would  be  the  conclusion  if  the  bill  differed  materially  from  the  written 
contract ;  that  might  present  a  different  question  ;  but  we  think  it  is  so 
connected  with,  and  naturally  resulting  from,  the  transaction,  that  it 
may  be  properly  referred  to  for  the  purpose  of  explaining  any  ambi- 
guity or  abbreviations,  so  common  in  these  brief  notes  of  mercantile 
contracts. 

A  printed  bill  of  parcels  delivered  by  the  seller  may  be  a  sufficient 
memorandum  within  the  statute  to  bind  him,  especially  if  subsequently 
recognized  by  a  letter  to  the  buyer.  2  B.  &  P.  238  ;  3  Esp.  180.  And 
generally  the  contract  may  be  collected  from  several  distinct  papers 
taken  together  as  forming  parts  of  an  entire  transaction,  if  they  are 
connected  by  express  reference  from  the  one  to  the  others.  3  Ad.  &  Ell. 
355  ;  9  B.  &  Cr.  561  ;  2  id.  945  ;  3  Taunt.  169  ;  6  Cow.  445  ;  2  M.  & 
Wels.  6G0  ;  Long  on  Sales,  55,  and  cases. 

In  the  case  before  us  the  bill  of  parcels  is  not  only  connected  with  the 
contract  of  sale,  which  has  been  signed  by  both  parties,  but  was  made 
out  and  delivered  in  the  course  of  the  fulfilment  of  it ;  has  been  acquiesced 
in  by  the  buyer,  and  the  goods  ordered  to  be  delivered  after  it  was 
received.  It  is  not  a  memorandum  sufficient  to  bind  him,  because  his 
name  is  not  affixed  to  it  by  his  authority  ;  but  if  he  had  subsequently 
recognized  it  by  letter  to  the  sellers,  it  might  have  been  sufficient.  2  B. 
&  P.  238  ;  2  M.  &  Wels.  653  ;  3  Taunt.  169. 

But  although  we  admit,  if  it  was  necessary  for  the  plaintiffs  to  rely 
upon  the  bill  as  the  note  or  memorandum  within  the  statute,  they  must 
have  failed,  we  think  it  competent  within  the  principle  of  the  cases  on 
the  subject,  from  its  connection  with  and  relation  to  the  contract,  to  refer 
to  it  as  explanatory  of  any  obscurity  or  indefiniteness  of  its  terms,  for 
the  purpose  of  removing  the  ambiguity. 

Take,  for  example,  as  an  instance,  the  objection  that  the  price  is  un- 
certain, the  figures  1\  and  8^  opposite  the  300  bales  and  100  cases  of 
drills,  given  without  any  mark  to  denote  what  is  intended  by  them. 


SECT.  VII.]  SALMON    FALLS   MANUF.    CO.    V.    GODDARD.  965 

The  bill  of  parcels  carries  out  these  figures  as  so  many  cents  per 
yard,  and  the  aggregate  amount  footed  up  ;  and  after  it  is  received  by 
the  defendant,  and  with  a  knowledge  of  this  explanation,  he  orders  the 
goods  to  be  forwarded. 

We  cannot  doubt  but  that  the  bill  under  such  circumstances  affords 
competent  evidence  of  the  meaning  to  be  given  to  this  part  of  the  written 
memorandum.  And  so  in  respect  to  any  other  indefinite  or  abbreviated 
item  to  be  found  in  this  brief  note  of  a  mercantile  contract. 

For  these  reasons  we  are  of  opinion  that  the  judgment  of  the  court 
below  must  be  reversed,  and  the  proceedings  remitted  with  directions  to 
award  a  venire  de  novo. 

Catron,  J.,  Daniel,  J.,1  and  Curtis,  J.,  dissented. 

Curtis,  J.  1  have  the  misfortune  to  differ  from  the  majority  of  my* 
brethren  in  this  case  ;  and  as  the  question  is  one  which  enters  into  the 
daily  business  of  merchants  and  at  the  same  time  involves  the  construc- 
tion of  a  statute  of  the  Commonwealth  of  Massachusetts,  I  think  it  proper 
to  state  briefly  the  grounds  on  which  I  rest  my  opinion. 

The  first  question  is,  Whether  the  writing  of  the  19th  of  September 
is  a  sufficient  memorandum  within  the  3d  section  of  the  74th  chapter  of 
the  Revised  Statutes  of  Massachusetts?  The  writing  is  in  these  words 
and  figures  :  — 

Sept  19,  —  W.  W.  Goddard,  12  mos. 

300  bales  S.  F.  drills 1\ 

100  cases  blue      " 8| 

Credit  to  commence  when  ship  sails  ;  not  after  Deer.  1  — 
delivered  free  of  charge  for  truckage. 

R.  M.  M. 
W.  W.  G. 
The  blues,  if  color  is  satisfactory  to  purchaser. 

Does  this  writing  show  upon  its  face,  and  without  resorting  to  extra- 
neous evidence,  that  W.  W.  Goddard  was  the  purchaser  of  these  goods? 
I  think  not.  Certainly  it  does  not  so  state  in  terms  ;  nor  can  I  perceive 
how  the  fact  can  be  collected  from  the  paper  by  any  certain  intendment. 
If  it  be  assumed  that  a  sale  was  made  and  that  Goddard  was  a  party  to 
the  transaction,  what  is  there  on  the  face  of  the  paper  to  show  whether 
Goddard  sold  or  bought?  Extraneous  evidence  that  he  was  the  seller 
would  be  just  as  consistent  with  this  writing  as  extraneous  evidence  that 
lie  was  the  purchaser.  Suppose  the  fact  had  been  that  Mason  was  the 
purchaser,  and  that  the  writing  might  be  explained  by  evidence  of  that 
fact;  it  would  then  be  read  that  Goddard  sold  to  Mason  on  twelve 
months'  credit  ;  and  this  evidence  would  be  consistent  with  everything 
which  the  paper  contains,  because  the  paper  is  wholly  silent  as  to  the 
fact  whether  he   was   the  seller  or  the  purchaser.     In   Bailey  et  al.  c. 

1  The  dissenting  opinion  of  I )  \\  hi.,  J.,  is  omitted.  His  dissent  was  on  the  ground 
that  the  court  had  no  jurisdiction  of  the  case.  On  the  question  in  regard  to  the  Statute 
of  Frauds,  Daniel,  J.,  expressed  assent  to  the  opinion  of  Nelson,  J. 


966  SALMON    FALLS    MANUF.    CO.    V.    GODDAED.  [CHAP.  VI. 

Ogden,   3  Johns.  Rep.  399,  an  action  for  not  accepting  sugars,  the 
memorandum  was :  — 

14  December. 
J.  Ogden  and  Co.     Bailey  &  Bogart. 

Brown,  12*  >      60  and  90  days. 
White,   16i  i 
Debenture  part  pay.1 

Mr.  Justice  Kent,  who  delivered  the  opinion  of  the  court,  enumerating 
the  objections  to  the  memorandum,  says,  no  person  can  ascertain  from 
this  memorandum  which  of  the  parties  was  seller  and  which  buyer  ;  and 
I  think  it  would  be  difficult  to  show  that  the  memorandum  now  in  ques- 
tion is  any  more  intelligible  in  reference  to  this  fact. 

Indeed  I  do  not  understand  it  is  supposed  that  in  the  absence  of  all 
extraneous  evidence  it  could  be  determined  by  the  court  as  matter  of 
law,  upon  an  inspection  of  the  paper  alone,  that  Goddard  was  the  pur- 
chaser of  these  goods.  The  real  inquiry  is  whether  extraneous  evidence 
of  this  fact  is  admissible. 

Now  it  is  true  the  statute  requires  only  some  note  or  memorandum  in 
writing  of  the  bargain  ;  but  I  consider  it  settled  that  this  writing  must 
show  who  is  vendor  and  who  is  purchaser.  In  Champion  v.  Plummer, 
1  B.  &  P.  New  Rep.  252,  the  memorandum  contained  the  name  of  the 
vendor,  a  description  of  the  goods  and  their  price,  and  was  signed  by 
the  vendee  ;  yet  it  was  held  that  the  vendee  could  not  maintain  an  action 
thereon,  because  it  did  not  appear  from  the  writing  that  he  was  vendee, 
though  it  was  clearly  proved  by  parol. 

In  Sherburn  et  al.  v.  Shaw,  1  N.  H.  Rep.  157,  the  plaintiffs  caused 
certain  real  estate  to  be  sold  at  auction,  and  the  defendant  being  the 
highest  bidder  signed  a  memorandum  agreeing  to  take  the  propert}* : 
this  memorandum  was  written  on  a  paper  headed,  "  Articles  of  sale  of 
the  estate  of  Jonathan  Warner  deceased,"  containing  the  terms  of  the 
sale  ;  and  this  paper  was  also  signed  by  the  auctioneer.  Yet  the  court, 
through  Mr.  Justice  Woodbury  who  delivered  the  opinion,  held  that,  as 
the  paper  failed  to  show  that  the  plaintiffs  were  the  vendors,  it  was  radi- 
cally defective.  Here  also  there  was  no  doubt  that  the  plaintiffs  were 
the  vendors,  but  extraneous  evidence  to  supply  this  fact  was  considered 
inadmissible. 

It  seems  to  me  that  the  fact  that  the  defendant  was  the  purchaser  is, 
to  say  the  least,  as  necessaiy  to  be  stated  in  the  writing  as  an}'  other 
fact,  and  that  to  allow  it  to  be  proved  b}'  parol  is  to  violate  the  intent 

1  This  was  an  entry  in  pencil  in  the  pocket  memorandum  book  of  Francis  Iluguet, 
who  acted  as  broker  for  the  defendants  in  purchasing  the  sugars.  The  following 
memorandum  of  the  sale  was  also  entered  by  the  plaintiffs  in  their  memorandum 
book  :  — 

"  14th  December 
"  Sold  Iluguet  for  J.  Ogden  &  Co.,  notes  with  approved  indorser,  boxes  white, 

do,  brown  rlavanna  BUgars,  at  li'!  for  brown  and  16J  for  white,  payable  at  GO 
and  90  days;  debenture  we  will  receive  in  part  payment." 


SECT.  VII.]  SALMON   FALLS   MANUF.    CO.    V.    GODDARD.  967 

of  the  statute  and  encounter  the  very  mischiefs  which  it  was  enacted  to 
prevent.  Chancellor  Kent,  2  Coin.  511,  says:  "The  contract  must 
however  be  stated  with  reasonable  certainty,  so  that  it  can  be  under- 
stood from  the  writing  itself  without  having  recourse  to  parol  proof." 
And  this  position  rests  upon  a  current  of  authorities  both  in  England 
and  America,  which  it  is  presumed  are  not  intended  to  be  disturbed. 
But  how  can  the  contract  be  understood  from  the  writing  itself,  when 
that  fails  to  state  which  party  is  vendor  and  which  purchaser? 

I  am  aware  that  a  latent  ambiguity  in  a  contract  may  be  removed  by 
extraneous  evidence  according  to  the  rules  of  the  common  law  ;  and  that 
such  evidence  is  also  admissible  to  show  what  in  point  of  fact  was  the 
subject-matter  called  for  by  the  terms  of  a  contract.  Bradley  v.  Steam 
P.  Co.,  13  Pet.  98.  So  when  an  act  has  been  done  by  a  person,  and  it 
is  doubtful  whether  he  acted  in  a  private  or  official  capacity,  it  is  allow- 
able to  prove  by  parol  that  he  was  an  agent  and  acted  as  such.  But 
these  cases  fall  far  short  of  proving  that  when  a  statute  requires  a  con- 
tract to  be  in  writing  you  may  prove  by  parol  the  fact  that  the  defendant 
was  purchaser,  the  writing  being  silent  as  to  that  fact ;  or  that  a  writing 
which  does  not  state  who  is  vendor  and  who  purchaser  does  contain 
in  itself  the  essentials  of  a  contract  of  sale. 

It  is  one  thing  to  construe  what  is  written  :  it  is  a  very  different  thing 
to  supply  a  substantive  fact  not  stated  in  the  writing.  It  is  one  thing  to 
determine  the  meaning  and  effect  of  a  complete  and  valid  written  con- 
tract, and  it  is  another  thing  to  take  a  writing  wdiich  on  its  face  imports 
no  contract  and  make  it  import  one  by  parol  evidence.  It  is  one  thing 
to  show  that  a  party  who  appears  by  a  writing  to  have  made  a  contract 
made  it  as  an  agent,  and  quite  a  different  thing  to  prove  by  parol  that 
he  made  a  purchase  when  the  writing  is  silent  as  to  that  fact.  The  duty 
and  power  of  the  court  is  a  duty  and  power  to  give  a  construction  to 
what  is  written,  and  not  in  any  case  to  permit  it  to  be  added  to  by  parol. 
Least  of  all  when  a  statute  has. required  the  essential  requisites  of  a 
contract  of  sale  to  be  in  writing,  is  it  admissible,  in  my  judgment,  to 
allow  the  fact  that  the  defendant  made  a  purchase  to  be  proved  by  parol. 
If  this  fact,  which  lies  at  the  basis  of  the  action  and  to  which  every 
other  is  but  incidental,  can  be  proved  by  evidence  out  of  the  writing 
signed  by  the  defendant,  the  statute  seems  to  me  to  be  disregarded. 

It  has  been  argued  that  the  bill  of  parcels,  sent  to  Goddard  by  Mason 
&  Lawrence  and  received  by  him,  may  be  resorted  to  for  the  purpose  of 
showing  he  was  the  purchaser.  But  it  is  certainly  the  law  of  Massa- 
chusetts, where  this  contract  was  made  and  the  case  tried,  as  1  believe  it 
is  of  most  other  States  and  of  England,  that  unless  the  memorandum 
which  is  signed  contains  a  reference  to  some  other  paper,  no  paper  not 
signed  by  the  party  to  be  charged  can  be  connected  with  the  memoran- 
dum or  used  to  supply  any  defect  therein.  This  was  held  in  Morton  et 
ah  v.  Dean.  13  Met.  385,  a  case  to  which  I  shall  have  occasion  more 
fully  to  refer  hereafter.  And  in  conformity  therewith  Chancellor  Kent 
lays  down  the  rule  in  2  Com.  511,  and  refers  to  many  authorities  in  sup- 
port of  it.     I  am  not  aware  that  any  court  has  held  otherwise. 


968  SALMON    FALLS    MANUF.    CO.    V.    GODDARD.  [CHAP.  VI. 

That  this  bill  of  parcels  was  of  itself  a  sufficient  memorandum  under 
the  statute,  or  that  it  was  a  paper  signed  by  the  defendant  or  by  any 
person  by  him  thereunto  lawfully  authorized,  I  do  not  understand  to  be 
held  by  the  majority  of  the  court. 

Now  the  memorandum  of  the  19th  September  is  either  sufficient  or 
insufficient  under  the  statute.  If  the  former,  there  is  no  occasion  to 
resort  to  the  bill  of  parcels  to  show  who  was  vendor  and  who  purchaser  ; 
if  the  latter,  it  cannot  consistently  with  the  statute  be  made  good  by 
another  paper  not  signed  and  connected  with  it  only  by  parol.  To  charge 
a  party  upon  an  insufficient  memorandum,  addejl  to  by  another  indepen- 
dent paper  not  signed,  would  be  to  charge  him  when  there  was  no  suffi- 
cient memorandum  signed  by  him,  and  therefore  in  direct  conflict  with 
the  statute.  It  does  not  seem  to  me  to  be  an  answer  to  say  that  the  bill 
of  parcels  was  made  out  pursuant  to  the  memorandum.  If  the  signed 
memorandum  itself  does  not  contain  the  essentials  of  a  contract  of  sale, 
and  makes  no  reference  to  any  other  paper,  in  no  legal  sense  is  any  other 
paper  pursuant  to  it ;  nor  can  any  other  paper  be  connected  with  it  save 
by  parol  evidence,  which  the  statute  forbids.  In  point  of  fact  it  would 
be  difficult  to  imagine  any  two  independent  papers  more  nearly  con- 
nected than  a  memorandum  made  and  signed  by  an  auctioneer,  and  the 
written  conditions  read  by  him  at  the  sale.  Yet  it  is  settled  that  the 
latter  cannot  be  referred  to,  unless  expressly  called  for  by  the  very  terms 
of  the  signed  memorandum.  Upon  what  principle  does  a  bill  of  parcels 
stand  upon  any  better  ground? 

The  distinction  heretofore  has  been  between  papers  called  for  by  the 
memorandum  by  express  reference,  and  those  not  thus  called  for :  this 
decision,  for  the  first  time  I  believe,  disregards  that  distinction,  and 
allows  an  unsigned  paper,  not  referred  to,  to  be  used  in  evidence  to 
charge  the  purchaser. 

In  my  judgment  this  memorandum  was  defective  in  not  showing  who 
was  vendor  and  who  purchaser,  and  oral  evidence  to  supply  this  defect 
was  net  admissible. 

But  if  this  difficult}7  could  be  overcome,  or  if  it  had  appeared  on  the 
face  of  the  paper  that  Goddard  was  the  purchaser,  still  in  my  judgment 
there  is  no  sufficient  memorandum.  I  take  it  to  be  elearl}*  settled  that, 
if  the  court  cannot  ascertain,  from  the  paper  itself  or  from  some  other 
paper  therein  referred  to,  the  essential  terms  of  the  sale,  the  writing 
does  not  take  the  case  out  of  the  statute.  This  has  been  so  often  decided 
that  it  is  sufficient  to  refer  to  2  Kent's  Com.  511,  where  many  of  the 
cases  are  collected. 

The  rule  stated  by  the  Chancellor  as  a  just  deduction  from  the  author- 
ities is  :  "  Unless  the  essential  terms  of  the  sale  can  be  ascertained  from 
the  writing  itself,  or  b}'  a  reference  contained  in  it  to  something  else, 
the  writing  is  not  a  compliance  with  the  statute;  and  if  the  agreement 
be  thus  defective  it  cannot  be  supplied  by  parol  proof,  for  that  would  at 
once  introduce  all  the  mischiefs  which  the  Statute  of  Frauds  and  Per- 
juries was  intended  to  prevent." 


SECT.  VII.]  SALMON   FALLS    MANUF.    CO.    V.    GODDAKD.  969 

The  statute  then  requires  the  essential  terms  of  the  sale  to  he  in 
writing  ;  the  credit  to  he  allowed  to  the  purchaser  is  one  of  the  terms 
of  the  sale. 

And  if  the  memorandum  shows  that  a  credit  was  to  he  given,  bul  docs 
not  fix  its  termination,  it  is  fatally  defective  ;  for  the  court  cannot  ascer- 
tain from  the  paper  when  a  right  of  action  accrues  to  the  vendee,  and  the 
contract  shown  by  the  paper  is  not  capable  of  heing  described  in  a  dec- 
laration. The  rights  of  the  parties  in  an  essential  particular  are  left 
undetermined  by  the  paper.  This  paper  shows  there  was  to  he  a  credit 
of  six  [twelve]  months,  and  contains  this  clause  :  "  Credit  to  commence 
when  ship  sails ;  not  after  Deer.  1."  According  to  this  paper  when  is 
this  credit  to  commence?  The  answer  is,  when  ship  sails,  if  before 
December  1.     "What  ship?     The  paper  is  silent. 

This  is  an  action  against  Goddard  for  not  delivering  his  note  on  twelve 
months'  credit,  and  it  is  an  indispensable  inquiry  on  what  day.  accord- 
ing to  the  contract,  the  note  should  bear  date.  The  plaintiffs  must  aver 
in  their  declaration  what  note  Goddard  was  bound  to  deliver,  and  the 
memorandum  must  enable  the  court  to  say  that  the  description  of  the 
notes  in  the  declaration  is  correct.  They  attempt  this  by  averring  in 
the  declaration  that  the  contract  was  for  a  note  payable  in  twelve  months 
from  the  sailing  of  a  ship  called  the  "Crusader,"  and  that  this  ship 
sailed  on  the  Gth  day  of  November.  But  the  writing  does  not  refer  to 
the  "'  Crusader  ;  "  and  if  oral  evidence  were  admissible  to  prove  that  the 
parties  referred  to  the  "  Crusader,"  this  essential  term  of  their  contract 
is  derived  from  parol  proof,  contrary  to  the  requirement  of  the  statute. 
It  was  upon  this  ground  the  case  of  Morton  et  al.  v.  Dean,  and  many 
other  similar  cases,  have  been  decided.  In  that  case  there  was  a  memo- 
randum signed  b}'  the  auctioneer  as  the  agent  of  both  parties,  contain- 
ing their  names  as  vendor  and  vendee,  the  price  to  be  paid,  and  a 
sufficient  description  of  the  property.  But  it  appeared  that  there  were 
written  or  printed  conditions  read  at  the  sale,  but  not  referred  to  in  the 
memorandum,  containing  the  terms  of  credit.  &c,  and  therefore  that 
the  memorandum  did  not  fix  all  the  essential  parts  of  the  bargain,  and 
it  was  held  insufficient. 

But,  further,  even  if  oral  evidence  were  admissible  to  show  that  the 
parties  had  in  view  some  particular  vessel,  and  so  to  explain  or  render 
certain  the  memorandum,  no  such  evidence  was  offered,  and  no  request 
to  leave  that  question  of  fact  to  the  jury  was  made.  Mason,  who  made 
the  contract  with  Goddard,  was  a  witness  ;  but  he  does  not  pretend  the 
parties  had  any  particular  vessel  in  view,  still  less  that  they  agreed  on 
the  "  Crusader"  as  the  vessel  the  sailing  of  which  was  to  be  the  com- 
mencement of  the  credit.  I  cannot  perceive,  therefore,  how  either  of 
the  counts  in  this  declaration  is  supported  by  the  evidence,  or  how  a 
different  verdict  could  have  lawfully  been  rendered. 

The  count  for  goods  sold  and  delivered  was  clearly  not  maintained, 
because  when  the  action  was  brought  the  credit  had  not  expired,  even  if 
it  began  on  the  19th  of  September.    One  of  the  special  counts  avers  that 


9  /  0  BECKWITH   V.    TALBOT.  [CHAP.  VI. 

the  notes  were  to  be  due  twelve  months  from  the  30lh  of  September; 
but  this  is  inconsistent  with  the  written  memorandum,  and  there  is  no 
evidence  to  support  it.  The  other  special  counts  all  declare  for  a  note 
due  twelve  months  after  the  sailing  of  the  "  Crusader  ;"  but,  as  already 
stated,  there  is  no  evidence  whatever  to  support  this  allegation,  and  a 
verdict  of  the  jury  affirming  such  a  contract  must  have  been  set  aside. 

It  may  be  added  also  that  no  one  of  the  prayers  for  instructions,  con- 
tained in  the  bill  of  exceptions,  makes  the  fact  that  the  parties  had 
reference  to  the  "  Crusader  "  any  element  of  the  contract,  but  that  each 
of  them  asks  for  an  instruction  upon  the  assumption  that  this  necessary 
term  of  the  contract  had  not  been  in  any  way  supplied. 

I  consider  the  language  of  Chief  Justice  Marshall  in  Grant  v.  Nay  lor, 
4  Cranch,  234,  applicable  to  this  case.  That  great  judge  says  :  "  Already 
have  so  many  cases  been  taken  out  of  the  Statute  of  Frauds,  which  seem 
to  be  within  its  letter,  that  it  may  well  be  doubted  whether  the  excep- 
tions do  not  let  in  many  of  the  mischiefs  against  which  the  rule  was  in- 
tended to  guard.  The  best  judges  in  England  have  been  of  opinion 
that  this  relaxing  construction  of  the  statute  ought  not  to  be  extended 
further  than  it  has  already  been  carried,  and  this  court  entirely  concurs 
in  that  opinion." 

I  am  authorized  to  state  that  Mr.  Justice  Catron  concurs  in  this 
opinion.1 


BECKWITH   v.   TALBOT. 
Supreme  Court  of  the  United  States,  October  Term,  1877. 

[Reported  in  95  United  States,  289.] 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

This  was  an  action  brought  by  Talbot  against  George  C.  Beckwith 
in  the  District  Court  of  Colorado  for  the  County  of  Fremont,  to 
recover  damages  for  the  breach  of  a  contract  alleged  to  have  been 
made  on  the  7th  of  October,  1870,  between  the  plaintiff  and  two 
others  on  the  one  part,  and  the  defendant  on  the  other,  whereby  they 
were  to  herd  and  care  for  a  large  herd  of  cattle  for  the  defendant, 
from  that  time  until  the  fifth  day  of  December,  1872,  for  which  he 
was  to  give  them  one  half  of  what  the  cattle  and  their  increase  should 
then  bring  over,  $36,681.60;  that  is,  to  each  one  third  of  such  half. 
The  declaration  alleged  that  the  plaintiff  and  the  two  persons  who 
entered  into  the  contract  together  witli  him  (who  were  the  sons  of  the 

1  In  Grafton  v.  Cummings,  99  U.  S.  100,  111,  Mr.  Justice  Miller,  in  delivering  the 
opinion  of  tin;  court,  s;ii<l  of  Salmon  Falls  Manufacturing  Co,  v.  Goddard  :  "  It  may  dc 
doubted  whether  the  opinion  of  the  majority  in  all  it  says  in  reference  to  the  nse  of 

parol  proof  in  aid  of  even  mercantile  Bales  of  g Is  by  brokers  is  sound  law."    The 

decision  is  also  expressly  disregarded  in  Mentz  v.  Newwitter,  122  N.  Y.  491,  497.  And 
in  Prank  <•.  Eltringham,  65  Miss.  281,  a  memorandum  which  did  not  show  on  its  face 
which  party  was  vendor  and  which  was  vendee  was  held  insufficient. 


SECT.  VII.]  BECKWITH   V.   TALBOT.  973 

defendant)  performed  their  part  of  it,  but  that  the  defendant  refused 
to  sell  the  cattle,  or  to  pay  the  plaintiff  his  share  of  their  value  above 
the  said  sum. 

On  the  trial,  two  defences  were  relied  on  which  are  made  the  sub- 
ject of  assignments  of  error  here  :  First,  that  the  alleged  contract  was 
void  by  the  Statute  of  Frauds,  because,  though  not  to  be  performed 
within  a  year,  it  was  not  in  writing  signed  by  the  defendant ;  secondly, 
that  it  was  a  joint  contract  on  which  the  plaintiff  could  not  maintain 
a  separate  action.1 

The  territorial  Statute  of  Frauds  declares  that  "  every  agreement 
which  by  its  terms  is  not  to  be  performed  within  a  year,  unless  some 
note  or  memorandum  thereof  be  in  writing  and  subscribed  by  the 
party  chargeable  therewith,  shall  be  void."  The  verbal  difference 
between  this  statute  and  that  of  Charles  II.  is  not  material  in  this 
case. 

It  appeared  on  the  trial  that  the  agreement  made  by  the  parties  was 
committed  to  writing  at  the  defendant's  instance,  and  was  in  the  fol- 
lowing words,  to  wit :  — 

Wet  Mountain  Valley,  Oct.  7,  1870. 
This  is  to  certify  that  the  undersigned  have  taken  two  thousand 
two  hundred  and  live  head  of  cattle,  valued  at  $36,081.60  on  shares 
from  George  C.  Beekwith  ;  time  to  expire  on  the  fifth  day  of  Decem- 
ber, 1872  ;  then  George  C.  Beekwith  to  sell  the  cattle  and  retain  the 
amount  the  cattle  are  valued  at  above.  Of  the  amount  the  cattle 
sell  at  over  and  above  the  said  valuation,  George  C.  Beekwith  to 
retain  one  half,  and  the  other  half  to  be  equally  divided  between  C. 
W.  Talbot,  and  Elton  T.  Beekwith,  and  Edwin  F.  Beekwith. 

(Signed)  C.  W.  Talbot. 

Elton  T.  Beckwith. 
Edwin  F.  Beckwith. 

This  agreement  was  signed  by  the  plaintiff  and  the  two  young 
Beckwiths,  but  was  not  signed  by  the  defendant.  It  was  delivered 
to  him,  however,  and  was  kept  by  him  until  he  produced  and  proved 
it  on  the  trial.  It  was  conceded  by  both  parties  that  this  was  the 
agreement  under  which  the  services  of  the  plaintiff  were  performed. 

Two  letters  written  by  the  defendant  to  the  plaintiff  on  the  subject- 
matter  of  the  contract,  and  whilst  he  had  the  said  agreement  in  his 
possession,  and  whilst  it  was  being  executed  by  the  plaintiff,  namely, 
one  on  the  21st  of  September,  1872,  and  the  other  on  the  10th  of 
November,  1872,  were  also  produced  in  evidence;  from  which  the 
following  are  extracts  :  — 

Denver,  September  21,  \<-i. 

Mb.  Talbot,  Sir,  —  On  my  arrival  from  the  mountains.  I  received 
your  letter.     As  I  have  wrote  you  before,  every  day  I  see  parties  here 

1  A  portion  of  the  opinion,  holding  the  second  defence  invalid  because  the  plaintiff's 
interest  was  separate,  is  omitted. 


972  BECKWITH    V.   TALBOT.  [CHAP.  VI. 

that  is  offering  their  cattle  very  low.  ...  I  have  used  every  exertion 
for  the  last  three  months  to  sell.   .   .   . 

You  suggest  giving  you  a  part  of  the  cattle.  That  is  entirely  out- 
side of  the  agreement.  Also,  where  would  be  the  interest  on  the 
amount  put  in  the  cattle  coming  from?  And  also  Elton  and  Edwin 
would  be  glad  to  do  the  same  ;  but  at  that  rate  I  would  not  get  my 
money  back  I  put  into  the  cattle. 

The  cattle  must  be  sold  and  settled  up  according  to  the  agreement. 
I  will  do  everything  I  can  to  sell  at  the  best  advantage,  and  you  shall 
have  every  chance  to  get  a  purchaser  for  the  cattle,  so  as  to  make  the 
most  out  of  them.  .  .  . 

You  shall  have  no  chance  to  complain  in  my  keeping  up  to  the 
agreement,  as  I  shall  strictly,  although  I  have  heard  you  have  made 
complaints  to  parties,  which  I  think  is  very  unfair,  and  the  parties 
you  told  so  said  so  too.   .  .  . 

Yours  respectfully,  George  C.  Beckwith. 

Denver,  Nov.  10,  1872. 

Mr.  Talbot,  Sir,  —  At  first  I  thought  it  useless  to  answer  your 
letter,  as  I  am  bound  by  the  agreement  to  sell  the  cattle  in  a  very 
short  time.  ...  I  notified  you  to  get  a  purchaser  for  the  cattle 
months  ago  ;  and  what  have  I  received  from  you  in  return  and  for 
my  pay?  I  must  say  I  have  never  been  treated  so  meanly  by  a  man 
in  my  life.  My  rights  was  to  sell  the  cattle.  Does  the  agreement 
say  that  I  was  to  say  anything  to  you  or  any  one  else? 

But  what  next?  You  quarrelled  with  me  because  I  would  not  break 
the  agreement  and  give  you  the  cattle  to  sell  at  figures  less  than  I  had 
kept  them  in  Denver  for  sale.  Now,  I  have  been  offered  $31,000  for 
the  cattle.  I  have  written  to  Edwin,  and  he  will  state  to  you  what 
I  wrote  him  to  say  to  you. 

Yours,  in  haste,  George  C.  Beckwith. 

"We  agree  with  the  Supreme  Court  of  Colorado  that,  in  the  face  of 
this  evidence,  produced  by  the  defendant  himself,  he  cannot  deny  the 
validity  of  the  agreement.  His  letters  are  a  clear  recognition  of  it. 
In  them  he  refers  to  "  the  agreement"  again  and  again.  He  declares 
his  intention  to  adhere  to  it,  and  to  hold  the  plaintiff  to  it.  What 
agreement  could  he  possibly  refer  to  but  the  only  one  which,  so  far  as 
appears,  was  ever  made:  the  one  which  he  took  into  his  possession, 
and  then  had  in  his  possession  ;  the  one  under  which  it  was  conceded 
the  parties  were  then  acting?  The  defendant,  being  examined  as  a 
witness  on  his  own  behalf,  and  testifying  with  regard  to  the  contract 
between  the  parties,  said,  "The  matter  was  all  talked  over,  and,  I 
thought,  understood.  I  said  to  my  son  Elton,  'You  understand  the 
mailer.  Will  you  take  a  pen  and  paper  and  write  the  contract?'  He 
wrote  it.  Talbot  read  it  and  signed  it,  and  then  my  sons  signed  it." 
On  cross-examination,  he   said,  "The   contract  was  delivered  to  me 


SECT.  VJI.J  BROWN    V.    WHIPPLE.  973 

after  it  was  signed,  and  has  remained  in  my  possession  ever  since 
until  this  trial." 

It  is  undoubtedly  a  general  rule  that  collateral  papers,  adduced  to 
supply  the  defect  of  signature  of  a  written  agreement  under  the  Stat- 
ute of  Frauds,  should  on  their  face  sufficiently  demonstrate  their  refer- 
ence to  such  agreement  without  the  aid  of  parol  proof.     But  the  rule  is 
not  absolute.     Johnson  v.  Dodgson,  2  Mee.  &  W.  653  ;   Salmon   Falls 
Co.  v.  Goddard,  14  How.  446.     There  may  be  cases  in  which  it  would 
be  a  violation  of  reason  and  common  sense  to  ignore  a  reference  which 
derives  its  significance   from  such  proof.     If  there  is  ground   for  any 
doubt  in  the  matter,  the  general  rule  should   be  enforced.     But  where 
there  is  no  ground  for  doubt,  its  enforcement  would  aid,  instead  of  dis- 
couraging, fraud.     Suppose  an  agreement  be  made  out  and  signed  by 
one  of  the  parties,  the  other  being  absent.     On  the  following  day,  the 
latter  writes  to  the  party  who  signed  it  as  follows:    "My  son   informs 
me  that  you  yesterday  executed  our  proposed  agreement,  as  prepared 
by  J.  S.      I  write  this  to  let  you  know  that  I  recognize  and  adopt  it.'' 
Would  not  this  be  a  sufficient  recognition,   especially  if  the    parties 
should   act   under   the  agreement?      And  yet  parol  proof  would    be 
required  to  show  what  agreement  was  meant.     The  present  case  is 
as  strong  as  that  would  be.     In  our  judgment,  the  defendant,  unless 
he  could  show  the  existence  of  some  other  agreement,  was  estopped 
from  denying  that  the  agreement  referred  to  by  him  in  his  letters  was 
that  which  he  induced  the  plaintiff  to  sign,  and  which  he  put  in  his 
pocket  and  kept,  and  sought  to  enforce  against  the  plaintiff  for  two 
whole  years.  Judgment  affirmed. 


BROWN  v.  WHIPPLE. 
Supreme  Court  of  New  Hampshire,  December,  1877. 

[Reported in  58  New  Hampshire,  229.] 

Assumpsit,  for  not  accepting  lumber.  Verdict  for  the  plaintiff  :  mo- 
tion of  the  defendant  for  a  new  trial.  As  evidence  of  the  memoran- 
dum required  by  the  Statute  of  Frauds,  the  plaintiff  introduced,  subject 
to  exception,  a  letter  written  and  signed  by  the  defendant,  a  memoran- 
dum written  by  the  defendant,  and  a  letter  written  and  signed  by  the 
plaintiff. 

TJie  Defendant's  Letter. 

Lancaster,  Dec.  21,  lSii:. 
J.  B.  Browx,  Esq. : 

Dkak  Sir:  Can  you  get  20  M.  feet  maple,  the  best  quality,  the 
coming  winter,  saw  it  in  the  spring  (or  winter),  and  deliver  it  at  the 
depot  at  your  place  in  July  next  ?     If  so,  for  how  much  per  M.  ?    Please 


974  BROWN   V.    WHIPPLE.  [CHAP.  VI. 

call  at  my  place  when  3'ou  are  at  Lancaster,  and  we  will  talk  it  over,  or 
write  me  all  the  particulars. 

Respectfully  yours,  J.  M.  Whipple. 

The  Defendant" s  Memorandum. 

Rock  maple,  clear,  for  J.  M.  Whipple,  15,000  feet;  10,000  feet  2 
inches  thick;  5,000  feet  \\  inches  thick.  To  be  delivered  at  the  rail- 
road track.     Price  $20  per  M. 

The  Plaintiff's  Letter. 

May,  1868. 

John  M.  Whipple  :  The  maple  lumber  which  I  agreed  to  get  out 
for  you  is  ready  for  delivery.  Would  like  to  have  you  call  up  and  take 
the  account  of  it,  as  I  wish  to  draw  it  over  to  the  railroad  track. 

James  B.  Brown. 

Ray,  Drew,  and  Jordan,  for  the  defendant. 

J.  II.  Benton,  Jr.,  for  the  plaintiff. 

Doe,  C.  J.  When  one  document  refers  to  another,  the  latter  is,  for 
the  purpose  of  such  reference,  incorporated  with  the  former.  1  Starkie 
Ev.  359  (p.  580  of  4th  Eng.  ed.)  ;  Simons  v.  Steele,  36  N.  II.  73,  83  ; 
Church  v.  Brown,  21  N.  Y.  315,  330-334.  A  list  of  taxes  may,  by  an- 
nexation and  reference,  be  made  a  part  of  a  tax-collector's  warrant. 
Bailey  v.  Ackerman,  54  N.  H.  527.  In  Tallman  v.  Franklin,  14  N.  Y. 
584,  it  was  held  that  a  document  was  made  a  part  of  a  memorandum  by 
being  fastened  to  it  by  a  pin  before  the  memorandum  was  signed,  a 
blank  column  of  the  memorandum  being  headed  "  Terms  of  sale,"  and 
the  annexed  document  having  the  same  heading,  and  containing  terms 
of  sale. 

In  this  case,  the  letter  written  by  the  plaintiff  to  the  defendant  is  no 
part  of  the  memorandum  required  b}7  the  Statute  of  Frauds,  because  it 
is  neither  signed  b}'  the  defendant,  nor  made,  by  annexation  or  refer- 
ence, a  part  of  a  writing  signed  by  him.  2  Kent  Com.  511  ;  Benjamin 
on  Sales,  ss.  222-237;  Blackburn  on  Sale,  46-54;  authorities  cited  in 
Morton  v.  Dean,  13  Met.  385,  and  in  Browne  on  Statute  of  Frauds, 
ss.  346-348,  371-376  ;  Fitzmaurice  v.  Bayley,  9  H.  L.  Cas.  78  ;  Skel- 
ton  v.  Cole,  1  DeGex  &  J.  587. 

If  it  was  held,  in  S.  F.  M.  Co.  v.  Goddard,  14  How.  446,  and  in 
Lerned  v.  Wannemacher,  9  Allen,  412,  that,  by  a  writing  signed  by  the 
plaintiff,  not  signed  by  the  defendant  (the  party  to  be  charged),  and 
not  make  a  part  of  a  memorandum  signed  by  the  defendant,  the  plain- 
tiff may  prove  a  fact  which  the  statute  requires  to  be  proved  by  a  mem- 
orandum signed  by  the  defendant,  those  cases  are  in  conflict  with  a 
mass  of  authority  too  great  to  be  overthrown.  The  soundness  of  the 
contrary  doctrine  was,  in  the  former  case,  demonstrated  in  the  dissent- 
ing opinion  of  two  judges,  and  was,  in  the  latter  case,  substantially 
admitted. 


SECT.  VII.]  BROWN    V.    WHIPPLE.  975 

In  Beckvvith  v.  Talbot,  95  U.  S.  289,  292,  it  was  a  question  of  legal 
construction,  whether  the  written  agreement,  signed  by  the  plaintiff 
was  sufficient^'  identified  and  referred  to  by  the  defendant,  in  his  let- 
ters, to  make  it  a  part  of  a  memorandum  signed  by  him.  It  was  held 
that  the  general  rule  is.  that  collateral  papers,  adduced  to  supply  the 
defect  of  signature  of  a  written  agreement,  should  on  their  face  suffi- 
ciently demonstrate  their  reference  to  such  agreement  without  the  aid 
of  parol  proof.  In  what  was  said  of  an  exception  in  cases  where  parol 
evidence  leaves  no  ground  for  doubt,  we  do  not  concur.  Unless  the 
essential  terms  of  the  sale  can  be  ascertained  from  the  writing  itself,  or 
by  reference  in  it  to  something  else,  the  writing  is  not  a  compliance 
with  the  statute  ;  and  if  the  agreement  be  thus  defective,  it  cannot  be 
supplied  by  parol  proof,  for  that  would  at  once  introduce  all  the  mis- 
chiefs which  the  statute  was  intended  to  prevent.  Williams  v.  Morris, 
95  U.  S.  444,  456.  A  defective  reference  can  no  more  be  cured  by 
parol  than  any  other  defective  part  of  the  memorandum. 

The  writing,  called  in  this  case  the  defendant's  memorandum,  is  in- 
sufficient, because,  if  it  is  signed  by  the  defendant,  and  if  it  shows  that 
he  bought  lumber  of  some  one,  it  does  not  show  of  whom  he  bought  it. 
The  defendant's  letter  of  inquiry  is  insufficient,  because  it  does  npt  show 
that  he  bought  or  agreed  to  buy  anything  of  anybody.  If  the  necessary 
memorandum  were  described  in  the  statute  (Gen.  St  c.  201,  s.  14)  as 
a  scintilla  of  proof  of  the  essentials  of  the  bargain,  and  if  the  question 
were,  whether,  in  fact,  the  plaintiff  is  the  person  with  whom  the  defend- 
ant contracted,  one  question  of  law  would  be,  whether  the  defendant's 
memorandum  and  letter  (with  or  without  other  evidence)  are  compe- 
tent for  the  consideration  of  a  jury.  But  the  question  is,  not  whether 
there  is  an  infinitesimal  or  other  amount  of  circumstantial  evidence  from 
which  a  jury  may  find  the  fact  not  stated  in  the  writings,  but  whether 
the  court  does  find,  upon  a  fair  legal  construction  of  the  writings,  that 
the  fact  is  stated  in  them.  Taken  together,  with  all  the  meaning  that 
is  expressed,  and  all  that  can  be  implied,  by  the  most  strained  con- 
struction, in  favor  of  the  plaintiff,  the  defendant's  memorandum  and 
letter  state,  that  at  some  time  the  defendant  agreed  to  buy  of  somebody 
15,000  feet  of  clear  rock  maple  boards  of  certain  dimensions,  to  be  de- 
livered at  the  railroad  track,  at  $20  a  thousand  ;  and  that,  on  the  21st 
day  of  December,  1SG7,  the  defendant  inquired  of  the  plaintiff,  by  letter, 
whether  he  could  get,  for  the  defendant,  20,000  feet  of  the  best  maple 
lumber,  the  coming  winter,  saw  it  in  the  winter  or  spring,  and  deliver 
it  at  the  depot  at  the  plaintiff's  place  the  next  July,  —  and  at  what 
price  the  plaintiff  would  do  this.  "We  do  not  think  the  legal  import  of 
this  statement  is,  that  the  plaintiff  is  the  person  with  whom  the  defend- 
ant contracted. 

A  memorandum  (consisting  of  one  or  more  writings)  may  be  read, 
like  other  documents,  in  the  light  of  the  circumstances  in  which  it  was 
written,  for  the  explanation  of  its  latent  ambiguities,  and  the  applica- 
tion of  its  terms  to  the  persons  and  things  sufticientry  described  in  it. 


976  BROWN    V.    WHIPPLE.  [CHAP.  VI. 

But  this  rule  does  not  admit  parol  evidence  to  supply  an  essential  part 
of  the  contract,  the  omission  of  which  is  patent  on  the  face  of  the  mem- 
orandum. And  the  inequitable  operation  of  the  statute  is  not  to  be 
avoided  by  a  narrow  construction  of  the  law,  or  a  liberal  construction 
of  the  memorandum.  Arguments  from  inconvenience  and  injustice 
sometimes  tend  to  show  the  lawmakers'  intention.  But  there  is  reason 
to  fear,  that,  in  this  country  as  well  as  in  England,  the  favor  with  which 
some  statutes,  and  the  dislike  with  which  others,  have  been  regarded 
by  courts,  have  enlarged  the  distinction  between  strict  and  loose  con- 
struction, without  reference  to  the  legislative  intent,  and  introduced  a 
variable  standard  that  exposes  the  province  of  the  legislature  to  judicial 
invasion. 

Verdict  set  aside.1 
Foster,  J.,  did  not  sit. 

1  In  Louisville  Asphalt  Varnish  Co.  v.  Lovick,  29  S.  C.  533,  the  plaintiff's  travelling 
salesman  secured  an  order  from  the  defendants  for  certain  kinds  and  quantities  of 
paint  at  specified  prices.  He  entered  the  order  on  his  memorandum  book  specifying 
the  parties,  goods,  and  price,  and  sent  a  copy  to  his  employer.  A  few  days  later  the 
defendants  wrote  and  signed  the  following  letter :  "  Gents  :  Don't  ship  paint  ordered 
through  your  salesman.  We  have  concluded  not  to  handle  it."  This  was  duly  sent 
and  received.  On  an  action  to  recover  the  price  of  the  paint  which  was  sent  but  not 
accepted,  a  majority  of  the  court  were  of  opinion  that  the  two  papers  might  be 
connected  by  extrinsic  evidence,  and,  as  taken  together  they  formed  a  sufficient  memo- 
randum, that  the  plaintiff  was  entitled  to  recover.  Simpson,  C.  J.,  delivered  a  dissenting 
opinion. 

In  Thayer  v.  Luce,  22  Ohio  St.  62,  a  suit  for  specific  performance  of  a  contract  to 
sell  land,  the  original  memorandum  contained  no  description  of  the  property,  and  the 
plaintiff  relied  also  on  a  deed  which  was  signed  but  not  delivered.  McDvaine,  J.,  in 
delivering  the  opinion  of  the  court,  said:  "  That  several  writings,  though  executed  at 
different  times,  may  be  construed  together,  for  the  purpose  of  ascertaining  the  terms 
of  a  contract  and  for  the  purpose  of  taking  an  action  founded  thereon  out  of  the 
operation  of  the  Statute  of  Frauds,  is  fully  settled.  3  Taunt.  169  ;  1  Bing.  8;  3  Myl. 
&  K.  353  ;   14  How.  S.  C.  447  ;   14  N.  Y.  584. 

"In  such  cases,  however,  the  mutual  relation  of  the  several  writings  to  the  same 
transaction  must  appear  in  the  writings  themselves,  parol  evidence  being  inadmissible 
for  the  purpose  of  snowing  their  connection.  If  one  only  of  such  papers  be  signed  by 
the  party  to  be  charged  in  the  action,  the  rule  seems  to  be  that  special  reference  must 
be  made  therein  to  those  papers  that  are  not  so  signed ;  but  if  the  several  papers 
relied  on  be  signed  by  such  party,  it  is  sufficient  if  their  connection  and  relation  to  the 
same  transaction  can  be  ascertained  and  determined  by  inspection  and  comparison. 

"In  tli i s  case,  upon  inspection  and  comparison  of  the  memorandum  and  the  deed, 
although  no  reference  is  made  in  either  to  the  other,  we  find  with  reasonable  certainty 
that  they  do  relate  to  the  same  transaction,  and  contain  fully  the  terms  of  a  contract 
of  bargain  and  sale  between  the  parties.  The  coincidences  of  names,  dates,  amount  of 
purchase-money,  and  reference  to  and  description  of  fractional  lots,  are  quite  sufficient. 
But  when  these  coincidences  are  considered  in  connection  with  the  averments  and 
admissions  in  the  pleadings,  and  the  res  <i<*t",  we  arrive  at  a  degree  of  certainty  far 
beyond  that  which  is  required  in  determining  civil  issues."  See  also  Coe  v.  Tough,  97 
N."  V.  273. 

In  Wilstack  v.  Ileyd,  122  Ind.  574,  the  face  of  the  memorandum  contained  no 
description  of  the  property,  but  a  description  was  indorsed  on  the  back.  This  was  held 
insnfficienl  on  the  ground  that  an  indorsement  was  no  better  than  a  separate  paper,  and 
if  it  contained  no  reference  to  the  face  could  not  be  used.     Compare  Tallman  v.  Frank- 


SECT.  VII.]  CUMMINGS   V.    ARNOLD.  977 


GEORGE   CUMMINGS    and   Others    v.   SMITH    ARNOLD    am. 

Another. 

Supreme  Judicial  Court  of  Massachusetts,  March  Term,   1842. 
[Reported  in  :i  Metcalf,  186.] 

Assumpsit  on  the  following  agreement :  "October  2Gth,  1838.  This 
is  to  show  that  I  agree  to  furnish  and  deliver  to  Cummings,  Hildreth, 
&  Co.,  of  Boston,  all  the  printing  cloths  which  1  make  in  my  looms, 
which  are  on  35-inch  cloths,  and  which  make  150  pieces  of  cloth  per 
week;  the  quality  to  be  the  same  as  those  sold  by  H.  Power  to  Cum- 
mings, Hildreth,  &  Co.,  on  my  account ;  the  warp  being  64  picks  to 
the  inch,  the  filling  GO  picks  or  threads  to  the  inch.  These  goods,  to 
the  amount  of  150  pieces  per  week.  I  agree  to  deliver  to  Cummings, 
Hildreth,  &  Co.,  in  Boston,  up  to  March  1st,  1839,  at  eight  and  one 
quarter  cents,  say  8|  yd.,  on  eight  months'  credit.  Smith  Arnold  & 
Co."  The  declaration  averred  that  the  plaintiffs  had  always  been  readv 
and  desirous  to  receive  and  pay  for  said  goods  according  to  the  terms 
of  said  agreement,  yet  that  the  defendants  had  not  delivered  and  fur- 
nished the  same. 

The  defendants  filed  the  following  specifications  of  defence :  — 
"1.  That  it  was  agreed  [by  parol]  between  the  plaintiffs  and  defend- 
ants at  the  time  when  the  above  contract  was  entered  into,  and  after 
its  execution  and  delivery,  that  the  plaintiffs  should  give  in  pavment 
for  the  goods  satisfactory  promissory  notes,  such  as  would  be  discounted 
at  the  bank  where  the  defendants  did  business  ;  which  notes  were  not 
given  as  agreed,  but  were  refused.  2.  That  after  the  making  of  the 
above  agreement,  a  proposition  was  made  by  the  plaintiffs  to  pay  cash 
for  the  goods  at  five  per  cent  discount :  that  Arnold,  one  of  the  de- 
fendants, to  whom  this  proposition  was  made,  then  being  in  Boston, 
told  the  plaintiffs  he  thought  the  defendants  should  accept  the  offer, 
but  wished  to  consult  with  his  partner  ;  for  which  purpose  time  was 
allowed  him  ;  that  he  went  home  and  consulted  his  partner,  and  wrote 
immediately  to  the  plaintiffs  that  they  [the  defendants]  should  accept 
the  proposition  ;  bul  that  the  plaintiffs  afterwards  refused  to  adhere 
to  the  bargain,  as  it  was  not  closed  at  the  time  the  proposition  was 
made." 

At  the  trial  before  Putnam,  J.,  the  defendants  offered  to  prove  the 
oral  agreements  mentioned  in  their  specification,  and  that  they  were 
made  on  a  legal  and  valid  consideration.  But  the  judge  refused  to 
admit  the  proof,  and  a  verdict  was  returned  for  the  plaintiffs.  The 
defendants  moved  for  a  new  trial. 

Lin   14  N.  V.  5^4,  where  a  letter  pinned  to  a  memorandum  was  held  to  lie  made  part 
of  it. 

It  is  not  essential  that  papers  relied  on  to  complete  a  memorandum  Bhonld  be  in 
existence  when  the  paper  signed  by  the  party  to  be  charged  is  executed.  Freelaud 
v    Kit/,  154  Mass.  257. 

62 


978  CUM.MIXGS    V.    ARNOLD.  [CHAP.  VI. 

This  case  was  argued  at  the  last  March  term. 

B.  Sumner,  for  the  defendants. 

Codman,  for  the  plaintiffs. 

Wilde,  J.  This  case  comes  before  us  on  exceptions  to  the  rulings 
of  the  court  at  the  trial,  whereby  the  evidence  offered  by  the  defendants 
was  rejected  on  the  ground  that  the  facts  offered  to  be  proved  would 
not  constitute  a  legal  defence.  The  action  is  founded  on  a  written 
contract,  by  which  the  defendants  undertook  to  deliver  to  the  plaintiff's 
at  a  stipulated  price' a  certain  quantity  of  cloths  for  printing,  from  time 
to  time  between  the  26th  day  of  October,  1838,  and  the  first  of  March 
following. 

The  defendants  admit  that  the  written  contract  was  not  performed 
by  them  according  to  the  terms  of  it ;  and  they  rely  on  two  oral  agree- 
ments made  subsequent!}'  to  the  execution  of  the  written  contract,  by 
the  last  of  which  it  was  agreed  that  the  plaintiffs  should  pay  cash  for 
the  goods  to  be  sent  to  them  b}'  the  defendants,  —  they  discounting  five 
per  cent  on  the  stipulated  price  whenever  the  goods  sent  should  amount 
to  the  value  of  $1000,  not  before  paid  for  ;  that  under  this  last  verbal 
agreement  the  defendants  delivered  150  pieces  of  goods,  and  that  the 
plaintiffs  refused  to  perform  said  agreement  on  their  part.  The  defend- 
ants also  offered  to  prove  that  each  of  these  verbal  agreements  was  made 
on  a  legal  and  good  consideration.  The  question  is,  whether  these  facts, 
if  proved,  would  constitute  a  legal  defence  to  the  action. 

The  general  rule  is  that  no  verbal  agreements  between  the  parties  to 
a  written  contract,  made  before  or  at  the  time  of  the  execution  of  such 
contract,  are  admissible  to  vary  its  terms  or  to  affect  its  construction. 
All  such  verbal  agreements  are  considered  as  varied  by  and  merged  in 
the  written  contract.  But  this  rule  does  not  apply  to  a  subsequent  oral 
agreement  made  on  a  new  and  valuable  consideration  before  the  breach 
of  the  contract.  Such  a  subsequent  oral  agreement  may  enlarge  the 
time  of  performance,  or  may  vary  any  other  terms  of  the  contract,  or 
may  waive  and  discharge  it  altogether.1 

But  the  plaintiff's  counsel  contends  that,  however  the  general  principle 
may  be  as  to  the  effect  of  a  parol  agreement  on  a  previous  written  con- 
tract, it  is  not  applicable  to  the  present  case,  the  parol  agreement  being 
void  by  the  Statute  of  Frauds  ;  and  that  to  allow  a  parol  agreement  to 
be  engrafted  upon  a  written  contract  would  let  in  all  the  inconveniences 
which  were  intended  to  be  obviated  by  the  statute.  In  considering  this 
objection  we  have  met  with  many  conflicting  decisions,  but  for  which  we 
should  have  had  but  little  difficulty  in  disposing  of  the  question  raised. 
And  notwithstanding  the  doubts  excited  by  some  of  these  decisions,  we 
have  been  brought  to  a  conclusion  which  coincides,  as  we  think,  with 
the  true  meaning  of  the  statute.  The  language  of  the  4th  section  (1  Rev. 
Sts.  c.  74),  on  which  the  question  depends,  is  peculiar.  It  does  not 
require  that  the  note  or  memorandum  in  writing  of  the  bargain  should 

1  The  court  here  stated  authorities  iu  support  of  this  doctrine. 


SECT.  Vir.]  CUMMINGS   V.    ARNOLD.  970 

be  signed  by  both  the  contracting  parties,  but  only  "by  the  party 
to  be  charged  thereby  or  by  some  person  thereunto  by  him  lawfully 
authorized." 

''The  principal  design  of  the  Statute  of  Frauds  was."  as  Lord  Ellen- 
borough  remarks  in  Cuff  v.  Penn,  1  M.  &  S.  26,  "that  parties  should 
not  have  imposed  on  them  burdensome  contracts  which  they  never  made, 
and  he  fixed  with  goods  which  they  never  contemplated  to  purchase." 
The  statute  therefore  requires  a  memorandum  of  the  bargain  to  be  in 
writing,  that  it  may  be  made  certain  ;  but  it  does  not  undertake  to  regu- 
late its  performance.  It  does  not  say  that  such  a  contract  shall  not  be 
varied  by  a  subsequent  oral  agreement  for  a  substituted  performance. 
That  is  left  to  be  decided  by  the  rules  and  principles  of  law  in  relation 
to  the  admission  of  parol  evidence  to  vary  the  terms  of  written  contracts. 
We  have  no  doubt  therefore  that  accord  and  satisfaction  by  a  substi- 
tuted performance  would  be  a  good  defence  in  this  action.  So  if  the 
plaintiffs  had  paid  for  the  goods  according  to  the  oral  agreements  to 
pay  cash  or  give  security,  and  the  defendants  had  thereupon  completed 
the  delivery  of  the  goods  contracted  for,  it  would  have  been  a  good  per- 
formance of  the  written  contract.  This  has  been  prevented  (if  the  de- 
fendants can  prove  what  the}' offered  to  prove)  by  the  plaintiffs'  refusal 
to  perform  on  their  part  a  fair  and  valid  contract.  And  it  is  a  well-set- 
tled principle  that,  if  two  contracting  parties  are  bound  to  do  certain 
reciprocal  acts  simultaneously,  the  offer  of  one  of  the  parties  to  perforin 
the  contract  on  his  part,  and  the  refusal  of  the  other  to  comply  with  tin- 
contract  on  his  part,  will  be  equivalent  to  a  tender  and  refusal  ;  and  in 
the  present  case  we  think  it  equivalent  to  an  accord  and  satisfaction, 
which  was  prevented  by  the  fault  of  the  plaintiffs,  who  agreed  for  a  val- 
uable consideration  —  if  what  the  defendants  offered  to  show  be  true  — 
to  vary  the  terms  of  the  written  contract  as  to  the  time  of  payment,  and 
afterwards  refused  to  comply  with  their  agreement.  If  the  defendants 
on  their  part  had  refused  to  perform  the  verbal  agreement,  then  indeed 
it  could  not  be  set  up  in  defence  of  the  present  action  ;  for  the  party 
who  sets  up  an  oral  agreement  for  a  substituted  performance  of  a  writ- 
ten contract  is  bound  to  prove  that  he  has  performed  or  has  been  ready 
to  perform  the  oral  agreement. 

This  distinction  avoids  the  difficulty  suggested  in  some  of  the  cases 
cited,  where  it  is  said  that  to  allow  a  party  to  sue  partly  on  a  written 
and  partly  on  a  verbal  agreement  would  be  in  direct  opposition  to  the 
requisitions  of  the  statute;  and  it  undoubtedly  would  be;  but  no  party 
having  a  right  of  action  can  be  compelled  to  sue  in  this  form.  lie  may 
always  declare  on  the  written  contract  ;  and  unless  the  defendant  can 
prove  performance  according  to  the  terms  of  tin-  contract  or  according 
to  the  agreement  for  a  substituted  performance,  the  plaintiff  would  be 
entitled  to  judgment.  We  think  therefore  that  the  evidence  of  the  oral 
agreements  offered  at  the  trial  should  have  been  admitted  ;  the  same  not 
being  within  the  Statute  of  Frauds,  and  the  evidence  being  admissible 
by  the  rules  of  law. 

62 


980  CTMMIXGS    V.    ARNOLD.  [CHAP.  VI. 

In  support  of  this  view  of  the  case  I  shall  not  attempt  to  reconcile  all 
the  conflicting  opinions  which  have  been  held  in  similar  or  nearly  simi- 
lar cases,  some  of  which  appear  to  have  been  decided  on  very  subtle 
and  refined  distinctions.  I  will  however  refer  to  a  few  decisions  which 
bear  directly  on  the  present  case.  The  case  of  Cuff  v.  Penn,  supra,  is 
a  strong  authority  in  favor  of  the  defendants,  as  the  facts  on  which  the 
decision  in  that  case  depended  are  in  all  respects  substantially  similar 
to  those  offered  to  be  proved  in  this  action.  That  was  an  action  of  as- 
sumpsit for  not  accepting  a  quantity  of  bacon,  which  by  a  written  eon- 
tract  the  defendant  agreed  to  purchase  of  the  plaintiff,  to  be  delivered 
at  certain  fixed  times.  After  a  part  of  the  bacon  had  been  delivered 
the  defendant  requested  the  plaintiff,  as  the  sale  was  dull,  not  to  press 
the  delivery  of  the  residue  ;  and  the  plaintiff  assented.  The  defendant 
afterward  refused  to  accept  the  residue,  and  set  up  the  Statute  of  Frauds 
in  defence  ;  but  the  court  held  that  there  was  a  parol  dispensation  of 
the  performance  of  the  written  contract  as  to  the  times  of  delivery,  which 
was  not  affected  by  the  Statute  of  Frauds.  Lord  Fllenborough  says  : 
"  I  think  this  case  has  been  argued  very  much  on  a  misunderstanding  of 
the  Statute  of  Frauds,  and  the  question  has  been  embarrassed  by  con- 
founding two  subjects  quite  distinct ;  namely,  the  provision  of  the  statute, 
and  the  rule  of  law  whereby  a  party  is  precluded  from  giving  parol  evi- 
dence to  vary  a  written  contract."  "  It  is  admitted,"  he  adds,  in  another 
part  of  his  opinion,  "  that  there  was  an  agreed  substitution  of  other  days 
than  those  originally  specified  for  the  performance  of  the  contract ;  still 
the  contract  remains.  Suppose  a  delivery  of  live  hogs  instead  of  bacon 
had  been  substituted  and  accepted  :  might  not  that  have  been  given  in 
evidence  as  accord  and  satisfaction  ?  So  here  the  parties  have  chosen 
to  take  a  substituted  performance.'' 

The  principle  on  which  this  was  decided  is  laid  down  in  several 
other  cases,  some  of  which  have  been  already  cited  on  the  other  point 
of  defence. 

At  the  argument  of  the  case  of  Goss  v.  Lord  Nugent,  5  Barn.  & 
Adolph.  65,  Parke,  J.,  remarked  that  "in  Cuff  v.  Penn,  and  some 
other  cases  relating  to  contracts  for  the  sale  of  goods  above  £10,  it  has 
been  held  that  the  time  in  which  the  goods  by  the  agreement  in  writing 
were  to  be  delivered  might  be  extended  by  a  verbal  agreement.  But  I 
never  could  understand  the  principle  on  which  those  cases  proceeded  ; 
for  the  new  contract  to  deliver  within  the  extended  time  must  be  proved 
parti}-  by  writing  and  partly  by  oral  evidence."  But  there  is  no  neces- 
sity for  the  plaintiff  to  declare  partly  on  the  written  and  partly  on  the 
oral  agreement.  He  may  always,  as  before  remarked,  declare  on  the 
written  contract ;  and  the  defendant  will  be  bound  to  prove  a  perform- 
ance according  to  the  terms  of  it  or  according  to  the  terms  of  a  substi- 
tuted performance  ;  and  performance  in  either  way  may  be  proved  by 
parol  evidence. 

Lord  Denman,  who  delivered  the  opinion  of  the  court  in  Goss  v.  Lord 
Nugent,   doc>  not   question    the    correctness   of  the  decision   in    Cuff 


SECT.  VII.]  CDMMINGS   V.    ARNOLD.  981 

v.  Penn,  and  his  remarks  on  another  branch  of  Ihe  Statute  of 
Frauds  .seem  to  be  confirmatory  of  Liu;  principle  laid  down  by  Lord 
Ellenborough  in  the  latter  case.  "  Ii  is  to  be  observed,"  he  says',  "  that 
the  statute  does  not  say  in  distinct  terms  that  all  contracts  or  agreements 
concerning  the  sale  of  lands  shall  be  in  writing,  and  there  is  no  clause 
which  requires  the  dissolution  of  such  contracts  to  be  in  writin"-."  In 
that  action  however  the  plaintiff  declared  partly  on  the  written  and 
partly  on  the  verbal  contract,  and  on  that  ground  it  was  rightfully  enough 
decided  that  the  action  could  not  be  maintained. 

In  Stowell  v.  Robinson,  3  Bing.  N.  R.  928,  and  5  Scott,  196,  it  was 
held  that  the  time  for  the  performance  of  a  written  contract  for  the  sale 
of  lands  could  not  be  enlarged  by  a  subsequent  oral  agreement,  although 
that  agreement  was  pleaded  by  the  defendant  as  a  bar  to  the  actiom 
The  plea  was  that  at  the  time  stipulated  for  the  performance  of  the  writ- 
ten contract  neither  party  was  ready  to  complete  the  sale  ;  and  the  time 
for  the  performance  was  agreed  by  the  parties  to  be  postponed.  That 
decision  seems  to  be  founded  on  the  doubt  suggested  by  Parke,  J.,  in 
Goss  u.  Lord  Nugent,  and  upon  the  decision  in  that  case,  without 
noticing  the  distinction  in  tiie  two  cases.  And  it  appears  to  us  that 
the  case  of  Stowell  v.  Robinson,  was  decided  on  a  mistaken  construc- 
tion and  application  of  the  Statute  of  Frauds  ;  and  that  the  distinc- 
tion between  the  contract  of  sale  which  is  required  to  be  in  writing,  and 
its  subsequent  performance  as  to  which  the  statute  is  silent,  was  over- 
looked or  not  sufficiently  considered  by  the  court ;  otherwise  the  decision 
perhaps  might  have  been  different.  AVe  think  there  is  no  substantial 
difference,  so  far  as  it  relates  to  the  Statute  of  Frauds,  between  the  plea 
in  that  case  and  the  plea  of  accord  and  satisfaction,  or  a  plea  that  the 
written  contract  had  been  totally  dissolved  before  breach  by  an  oral 
agreement;  cither  of  which  pleas  would  have  been  a  good  and  sufficient 
bar  to  the  action,,  We  are  aware  that  the  principle  on  which  Stowell  y. 
Robinson  was  decided  is  supported  by  other  English  cases  cited  ;  but 
the  principle  on  which  the  case  of  Cuff  v.  Penn  was  decided  is  in 
our  judgment  more  satisfactory,  and  better  adapted  to  the  adminis- 
tration of  justice  in  this  and  similar  cases. 

It  is  to  be  observed  in  the  present  case  that  the  oral  agreements  of- 
fered to  be  proved  by  the  defendants  did  not  vary  the  terms  of  the  .writ- 
ten contract  as  to  its  performance  on  their  part ;  the  only  alteration  was 
as  to  the  time  of  payment  by  the  plaintiffs.  Such  an  alteration  made 
on  a  good  consideration  and  before  any  breach  of  the  contract,  may.  we 
think,  be  proved,  without  any  infringement  of  the  Statute  of  Frauds  or 
any  principle  of  law.  New  trial  granted.* 

1  In  Clark  v.  Fey,  121  X.  Y.  470.  the  defendant  contracted  to  purchase  of  plaintiffs 
500  tons  of  old  iron  rails,  at  $37.50  per  ton,  to  be  shipped  "  from  the  other  side  January 
or  February  or  March,  seller's  option."  In  an  anion  to  recover  damages  for  breach  •  f 
tho  contract  it  appeared  that  after  the  contract  rails  had  arrived  and  were  ready  for 
delivery  ami  within  the  permitted  time  of  delivery,  in  :>  conversation  between  the  yen- 
dee  and  1'.,  the  vendor's  agent,  the  vendee  said  that  owing  to  the  fall  iu  price  of  old 


9S2  CODDLNGTCLX    V.    GODDAKD.  [CHAP.  VI. 


THOMAS    B.    CODDIXGTON   and    Others   v.   WILLIAM    W. 

(.ODDARD. 

Supkeme  Judicial  Coukt  of  Massachusetts,  November,  1860. 

[Reported  in  16  Gray,  43C] 

Action  of  contract  to  recover  damages  for  not  delivering  two  hun- 
dred thousand  pounds  of  copper  alleged  to  have  been  sold  by  the 
defendant  to  the  plaintiff.  Trial  and  verdict  for  the  plaintiff  before 
Merrick,  J.,  who  reported  the  case  to  the  full  court,  in  substance  as  fol- 
lows :  — 

Charles  Canterbury,  called  as  a  witness  for  the  plaintiffs,  testified 
that  he  was  a  merchandise  broker ;  that  on  the  9th  of  December,  185G, 
acting  under  instructions  contained  in  a  telegraphic  despatch  from  the 
plaintiffs,  merchants  in  New  York,  which  he  received  between  two  and 
three  o'clock  in  the  afternoon,  he  called  at  the  defendant's  place  of 
business  in  Boston,  and  not  finding  him  there,  followed  him  to  his 
house,  where  he  had  an  interview  with  him,  and  stated  to  him  the 
plaintiffs'  offer  to  buy  three  hundred  thousand  pounds  of  copper,  at 
twenty-four  and  a  quarter  cents  per  pound,  on  a  credit  of  nine  months, 
with  satisfactory  paper,  and  deliverable  on  board  a  vessel  in  Boston 
bound  for  New  York,  the  seller  to  pay  freight  to  New  York,  and  the 
buyer  to  pay  the  insurance  ;  that  the  defendant  asked  if  the  steamer, 
which  had  that  day  arrived  in  New  York,  brought  intelligence  of  any 
advance  in  the  price  of  copper  in  Europe  ;  to  which  the  broker  replied, 
"  None  that  I  know  of;"  and  the  defendant  after  a  moment's  hesita- 
tion, said  that  he  would  sell  to  the  plaintiffs  two  hundred  thousand 
pounds  of  copper  on  the  terms  proposed,  reserving  the  light  to  add 
one  hundred  thousand  on  the  next  day  if  he  should  then  elect  to  do 
so;  that  the  broker  urged  him  to  sell  the  whole  of  the  three  hundred 
thousand  pounds  then,  saving  that  the  purchase  was  made  for  exporta- 
tion, and  would  take  that  quantity  out  of  this  market;   but  the  defend- 

rails  it  would  he  very  difficult  for  him  in  take  "those  rails,"  and  he  asked  P.  to  lie  as 
easy  as  lie  could,  and  to  carry  "the  rails  and  give  him  so, no  rails  later."  P.  told  him 
he  "  would  carry  the  rails  for  him  and  give  him  some  rails  a  little  further  on  in  place 
of  them."  No  rails  were  set  apart  for  the  vendee  until  in. June;  the  rails  then  set  apart 
were  not  Bhown  to  have  been  shipped  in  the  contract  months.  The  vendee  refusing  to 
:i<  cept  them  when  tendered  they  were  sold,  and  plaintiff  sought  to  recover  the  differen*  e 
eeii  the  contract  ami  selling  price.  Held,  that  the  parol  arrangement  was  to  be 
rued  either  as  an  agreement  thai  the  vendor  having  set  apart  and  tendered  the 
i  attract  rails  would  "  carry  them"  for  the  account  ami  at  the  risk  of  the  purchaser,  or 
as  an  agreement  that  the  original  contract  should  be  abandoned,  ami  other  ami  differ- 
ent rails  should  be  delivered  and  accepted.     If  the  former,  plaintiffs  were  not  entitled 

to  recover,  as  it  did   no)  appear  that  tlicy  had  carried   for  tin'  vendee  the  contract  rails 

red  them  fur  final  acceptance.     If  the  latter,  the  alteration  in  the  terms  of 
the  contract  amounted  to  the  making  of  a  new  contract,  which,  being  by  parol,  was 

void  under  the  Statute  of  Frauds. 


SECT.  XIL~]  CODDIXGTON   v.   GODDARD.  983 

ant  said  he  would  not  do  differently  from  what  he  had  proposed  ;  and 
the  broker  then  said,  "  Well,  if  that  is  the  ultimatum,  it  is  a  sale,"' and, 
returning  to  his  office,  communicated  to  the  plaintiffs  l>v  telegraph 
what  he  had  done,  informing  them  that  he  should  write  the  particulars 
by  the  next  mail ;  which  he  did  ;  and  made  a  memorandum  in  his  books 
of  the  transaction,  according  to  his  usual  custom. 

This  memorandum  was  on  a  page  of  a  book  headed,  "  Boston,  Decem- 
ber, 18.3G,"  and  was  in  the  following  terms:  — 

'Jth.  W.  W.  Goddard  to  T.  B.  Coddington  &  Co.,  200,000  pounds 
Chih  pig  copper,  21]  a  9  mos.  from  delivery,  f.  o.  b.  packet  here  for 
N.  Y.,  seller  paying  freight,  and  buyer  paying  insurance  to  N.  Y.  To 
be  9G  per  cent  pure  copper,  and  paper  satisfactory  to  seller. 

The  broker  testified  that  in  this  memorandum  the  figures  denoting 
the  quantity  were  written  in  pencil,  in  order  to  facilitate  alteration  in 
case  the  defendant  should,  as  he  had  a  right  to  do,  elect  to  deliver  a 
larger  quantity.  No  sale  note  or  letter  relating  to  the  sale  or  entry 
was  sent  by  the  broker  to  the  defendant.  .  .  . 

The  defendant,  being  called  as  a  witness,  testified  that  in  his  inter- 
view with  the  broker  he  said  that  he  would  sell  to  the  plaintiffs  two 
hundred  thousand  pounds  of  copper  in  case  no  intelligence  had  been 
received  by  the  steamer  of  any  advance  in  the  price  of  the  article  in 
Europe,  reserving  the  right  to  add  one  hundred  thousand  pounds  the 
next  day  on  the  same  terms  at  his  option.  And  he  contended  that,  if 
there  was  any  verbal  contract  for  the  sale  of  two  hundred  thousand 
pounds  of  copper,  it  was  upon  this  condition,  and  upon  the  further  con- 
dition that  the  copper,  if  sold  and  delivered,  should  be  exported  by  the 
plaintiffs,  and  therefore  the  plaintiffs  could  not  recover. 

The  defendant  also  contended  that  the  entry  in  the  broker's  books 
was  not  a  sufficient  memorandum  in  writing  to  take  the  case  out  of 
the  Statute  of  Frauds;  because  no  authority  was  shown  in  the  broker 
to  sign  the  memorandum  in  his  behalf  or  in  behalf  of  the  plaintiffs  ; 
because  it  was  not  intended  by  the  broker,  when  he  made  it,  as  a  com- 
plete and  final  statement  of  the  bargain  made ;  because  it  did  not 
state  all  the  material  terms  of  the  bargain;  because  it  was  not  signed 
as  required  by  the  statute;  and  because  the  broker  was  not  authorized 
by  the  defendant  to  make  the  bargain  so  entered  by  him. 

But  the  judge  ruled  that  if  Canterbury  was  a  merchandise  broker, 
and  that  was  known  to  the  parties,  and  they  were  dealing  with  him  in 
this  transaction  in  his  capacity  of  broker,  and  made  a  contract  through 
him  for  the  purchase  and  sale  of  two  hundred  thousand  pounds  "of 
copper,  this  gave  him  authority  to  bind  them  both  by  making  a  memo- 
randum of  the  contract  in  writing,  and  signing  it  in  their  behalf  re- 
spectively :  that  the  memorandum  in  his  book  was  sufficient  in  form  to 
bind  the  parties,  if  he  had  authority  to  make  and  sign  it  for  them  : 
that  if  he  did.  in  fact,  make  the  entry  in  his  book  as  and  for  a  com- 
plete note  or  memorandum  of  the  contract  of  sale  made  by  the  par- 


984  CODDINGTON   V.    GODDAED.  [CHAP.  VI. 

ties  through  him,  such  memorandum  was  conclusive  evidence  of  the 
terms  of  the  contract,  and  was  to  be  considered  and  treated  in  all 
respects  as  if  it  was  a  written  contract  signed  by  the  parties  them- 
selves ;  that  it  was  in  its  terms  a  perfect  and  complete  statement  of  a 
contract,  and  capable  of  a  clear  and  intelligible  exposition,  and  there- 
lure  parol  evidence  was  inadmissible  to  contradict  or  vary  the  terms 
of  it ;  and  that  even  if  the  defendant  did  in  his  verbal  contract  with 
Canterbury  make  the  sale  upon  such  conditions  as  he  contended,  he 
could  not  avail  himself  of  either  of  those  conditions,  because  they 
were  not  contained  or  expressed  in  the  memorandum.  To  these  rulings 
the  defendant  alleged  exceptions. 

C.  J3.  Goodrich  and  O.  G.  Peabody,  for  the  defendant 

C.  A.  Welch  and  E.  .Bangs,  for  the  plaintiffs. 

Bigelow,  C.  J.  .  .  .  There  can  be  no  doubt  that  the  broker,  if  he 
acted  as  the  agent  of  both  parties  in  completing  the  contract  of  sale, 
was  empowered  to  do  all  that  was  necessary  to  make  the  bargain  valid 
and  binding  in  law.  For  this  purpose  he  had  authority  to  make  the 
requisite  memorandum  to  satisfy  the  Statute  of  Frauds.  Rev.  Sts. 
c.  74,  §  4.  It  is  not  denied  that  this  memorandum  may  well  be  made 
in  the  book  of  a  broker.  Indeed,  such  entry  may  be  resorted  to  as 
the  original  evidence  of  the  contract,  even  when  bought  and  sold  notes 
of  the  bargain,  differing  from  each  other,  have  been  delivered  to  the 
parties.     Sievewright  v.  Archibald,  17  Q.  B.  102,  109. 

But  it  is  objected  that  the  memorandum  made  by  the  broker  in  the 
present  case  was  insuflicient  to  take  the  case  out  of  the  operation  of 
the  statute,  because  it  does  not  show  who  were  the  vendor  and  vendee 
of  the  merchandise.  This  would  be  a  fatal  objection  if  it  was  well 
founded  ;  for  although  a  memorandum  of  this  nature  may  be  very 
brief,  it  must  nevertheless  show  with  reasonable  certainty  who  were 
the  parties  to  the  contract,  and  the  terms  of  the  sale,  so  that  the}'  may 
appear  from  the  writing  itself.  But  in  the  present  case  the  entiy  is 
perfectly  intelligible  and  free  from  doubt.  If  it  is  read  with  reference 
to  the  book  in  which  it  is  made,  as  an  entry  by  a  broker  in  the  regular 
course  of  his  business  as  an  agent  of  third  parties  for  the  purchase  and 
sale  of  goods,  it  clearly  indicates  a  sale  from  defendant  to  the'plaintiffs. 
It  is  susceptible  of  no  other  interpretation. 

It  is  also  objected  that  the  memorandum  is  deficient,  because  it  does 
not  state  the  amount  for  which  insurance  was  to  be  procured,  nor  for 
whose  benefit,  and  because  it  contains  no  stipulation  concerning  the 
mode  or  place  in  which  the  assaying  of  the  copper  was  to  be  had,  in 
older  to  ascertain  its  purity.  The  answer  to  these  objections  is  that 
the  memorandum  states  with  accuracy  the  terms  of  the  contract  as 
testified  to  by  the  broker,  and  that  there  was  no  proof  at  the  trial  that 
there  was  any  agreement  made  concerning  the  particulars  of  the  bar- 
gain which  are  now  alleged  to  be  omitted. 

Nor  does  it  affect  the  validity  of  the  memorandum,  that  the  broker 
did  not  include  in  it  the  stipulation  made  by  the  defendant,  that  he 


SECT.  VII.]  CODDINGTON    V.   GODDARD.  985 

should  have  the  right  to  add  to  the  sale  one  hundred  thousand  pounds 
of  copper  the  next  day.  This  was  a  wholly  separate  and  independent 
agreement,  which  in  no  way  affected  the  sale  actually  made,  and  which 
could  not  be  properly  entered  in  the  book  of  the  broker,  unless  it  had 
ripened  into  a  sale  by  the  election  of  the  defendant  on  the  next  day 
to  sell  the  additional  quantity  to  the  plaintiffs.  But  he  made  no 
such  election,  and  there  was  therefore  no  contract  as  to  that  portion 
of  the  copper  of  which  the  broker  was  empowered  to  make  a  memo- 
randum. 

The  remaining  objection  to  the  sufficiency  of  the  entry  in  the  book 
as  a  memorandum  within  the  statute  is  that  it  was  not  duly  signed  by 
the  broker  or  the  parties.  We  know  of  no  case  in  which  it  has  been 
held  that  the  signature  of  the  name  of  the  agent  through  whom  the 
contract  is  negotiated  should  appear  in  the  writing.  It  is  sufficient  if 
the  names  of  the  parties  to  be  charged  are  properly  inserted,  either  by 
themselves  or  by  some  persons  duly  authorized  to  authenticate  the 
document.  Brokers  and  auctioneers  are  deemed  to  be  the  agents  of 
both  parties,  and  by  virtue  of  their  employment  stand  in  such  relation 
to  their  principals  that  they  can  sign  the  names  of  the  parties  to  a  con- 
tract of  sale  effected  through  their  agency.  Such  authority  is  implied 
from  the  necessity  of  the  case  ;  because  without  it  they  could  not  com- 
plete a  contract  of  sale  so  as  to  make  it  legally  binding  on  the  parties. 
Nor  is  it  at  all  material  that  the  names  should  be  written  at  the  bottom 
of  the  memorandum.  It  is  sufficient  if  the  names  of  the  principals  are 
inserted  in  such  form  and  manner  as  to  indicate  that  it  is  their  con- 
tract, by  which  one  agrees  to  sell  and  the  other  to  buy  the  goods  or 
merchandise  specified,  upon  the  terms  therein  expressed.  It  is  the 
substance,  and  not  the  form,  of  the  memorandum,  which  the  law  re- 
gards. The  great  purpose  of  the  statute  is  answered,  if  the  names  of 
the  parties  and  the  terms  of  the  contract  of  sale  are  authenticated  by 
written  evidence,  and  do  not  rest  in  parol  proof.  Penniman  v.  Harts- 
horn, 13  Mass.  87  ;  Hawkins  v.  Chace,  19  Pick.  502,  505  ;  Fessenden  v. 
Mussey,  11  Gush.  127;  Morton  v.  Dean,  13  Met.  385  ;  Salmon  Falls 
Manuf.  Co.  v.  Goddard,  14  How.  446. 

The  onh/  other  exception  taken  to  the  ruling  of  the  court  presents  a 
question  of  some  difficulty.  To  understand  it,  it  is  necessary  to  recur 
to  the  positions  assumed  bjT  the  respective  parties  at  the  trial.  The 
plaintiffs  contended  and  offered  evidence  to  show  that  the  sale  was  an 
absolute  one,  and  was  made  upon  the  terms  set  out  in  the  written 
memorandum.  The  defendant,  on  the  other  hand,  insisted  and  en- 
deavored to  prove  that  the  contract  of  sale  was  a  conditional  one,  and 
was  not  to  take  effect,  if  intelligence  had  been  received  by  the  steamer 
of  an  advance  in  the  price  of  copper,  nor  unless  the  plaintiffs  should 
agree  to  export  it,  if  the  sale  and  delivery  were  completed.  In  this 
state  of  the  case,  one  of  the  points  urged  by  the  defendant  was  that 
the  broker  had  no  authority  to  bind  him  by  the  memorandum  which 
was  offered  in  evidence.     Among  the  instructions  given  to  the  jury, 


986  CODDINGTOX    V.    GODDAKD.  [CHAP.  VI. 

the}"  were  told  that  if  the  defendant  did,  in  his  verbal  contract  entered 
into  with  Canterbuiy,  make  the  sale  on  the  conditions  above  stated, 
he  could   not  avail  himself  of  either  of  them,  because  they  were  nut 
contained    in    the    written   memorandum    made   by  the  broker.     This 
instruction  was  strictly  accurate  as  applied  to  the  contract,  if  it  was 
made  by  the  anthorized  agent  of  both  the  parties.     But  upon  the  issue 
whether  the   broker  was  authorized  to  sign  the  memorandum  offered 
in  proof  as  the  agent  of  the  defendant,  it  shuts  him  out  from  the  bene- 
fit of  testimony  which  has  a  direct  and  material  bearing.     Upon  the 
facts  as  they  appear  in  the  report  of  the  case,  the  broker  was  not  the 
general   agent  of  the  defendant.     He   had   no  authority  to  bind  him, 
except  such  as  was  derived   from  the  verbal  contract  into  which  he 
entered  for  the  sale  of  the  copper.     He  was  in  the  strictest  sense  a 
special  agent  for  a  special  and  single  object,  and  could  not  bind  the 
defendant   beyond   the  limits  conferred   by  the    precise  terms  of  the 
agreement  to  which  he  assented       He  was  his  agent  only  to  sign  a 
memorandum  which  contained  the  whole  contract,  with  the  terms  and 
conditions  annexed  to  it  by  him.     A  broker,  from  the  very  nature  of 
his  employment,  has  only  a  limited  authority,  when  it  appears,  as  it 
does  in  the  present  case,  that  he  had  no  relation  to  a  party,  other  than 
what  is  derived  from  a  single  contract  of  sale.     When  he  applies  to  a 
vendor  to  negotiate  a  sale,  he  is  not  his  agent.     He  does  not  become 
so  until  the  vendor  enters  into  the  agreement  of  sale.     It  is  from  this 
agreement  that  he  derives  his  authority,  and  it  must  necessarily  be 
limited  by  its  terms  and  conditions.     He  is  then  the  special  agent  of 
the  vendor  to  act  in  conformity  with  the  contract  to  which  his  princi- 
pal has  agreed,  but  no  further,  and  he  cannot  be  regarded  as  his  agent, 
unless  he  complies  with  the  terms  of  his  special  authority  as  derived 
from  the  contract.     In  short,  a  broker  is  authorized  to  sign  only  that 
contract  into  which  the  vendor  lias  entered,  not  another  and  different 
contract.     If  he  omits  to  include  in  the  memorandum  special  excep- 
tions and  conditions  to  the  bargain,  he  signs  a  contract  which  he  has 
no  authority  to  make,  and  the  party  relying  upon  it  must  fail,  because 
it  is  shown  that  the  broker  was  not  the  agent  of  the  vendor  to  sign 
that  contract.      It  would  seem  to  follow  as  a  necessary  consequence 
that  evidence  of  the  verbal  agreement  into  which   the  defendant  en- 
tered  for  the  sale  of  the  copper  was  competent  and  material  on  the 
question  of  the  extent  of  his  authority  to  bind  the  defendant. 

Nor  does  the  admission  of  this  evidence  for  this  purpose  at  all  con- 
travene the  rule,  that  parol  proof  is  incompetent  to  vary  or  control  a 
written  contract.  It  is  offered  for  a  wholly  different  purpose.  It 
hears  solely  on  a  preliminary  inquiry.  The  object  is  not  to  explain  or 
.•liter  a  contract,  but  to  show  that  no  contract  was  ever  entered  into, 
because  the  person  who  executed  it  had  no  authority  to  make  it. 
The  authority  of  an  agent  may  always  be  shown  by  parol;  but  the 
contracts  into  which  he  enters  within  the  scope  of  his  authority,  when 
reduced  to  writing,  can  be  proved  only  by  the  writing  itself. 


SECT    Yll.]  LKUNED    V.    WANNEMACHEB.  987 

The  necessity  of  admitting  evidence  of  the  verbal  contract  entered 
into  with  a  broker,  in  cases  where  his  authority  is  drawn  in  question, 
is  quite  obvious.  If  such  proof  were  incompetent,  a  broker  who  had 
entered  into  negotiations  with  a  person  might  make  a  memorandum  of 
a  contract  wholly  different  from  that  which  he  was  authorized  to  sign, 
and  thereby  effectually  preclude  all  proof  that  no  such  contract  was 
ever  made.  Allen  v.  Pink,  4  M.  &  W.  144  ;  Pitts  v.  Beckett,  13  M.  & 
W.  743,  750.  Nam  trial  <jr  at  dad. 


THOMAS    P.  LERNED    and  Another  v.  CHARLES    WANNE- 
JM  A  CHER  and  Another. 

Supreme  Judicial  Court  of  Massachusetts,  November,   18G4. 

[Reported  in  9  Allen,  412.] 

Contract  brought  to  recover  damages  for  the  failure  to  deliver  a 
quantity  of  coal  sold  by  the  defendants  to  the  plaintiffs.  One  ground 
of  defence  was  that  the  contract  was  not  binding  because  not  executed 
in  conformity  to  the  Statute  of  Frauds. 

At  the  trial  in  the  Superior  Court  before  Morton,  J.,  the  plaintiffs 
introduced  evidence  tending  to  show  the  following  facts :  Albert 
Betteley  was  authorized  to  sign  contracts  for  the  sale  of  coal  in  behalf 
of  the  defendants,  who  were  commission  merchants  in  Philadelphia 
under  the  firm  of  Wannemacher  &  Maxfield.  On  the  31st  of  March, 
1863,  the  plaintiffs  made  a  parol  contract  for  the  purchase  of  1,000 
tons  of  coal  of  Betteley,  as  agent  of  the  defendants,  according  to 
the  terms  of  the  written  memorandum  hereinafter  set  out.  The  plain- 
tiffs then  signed  and  delivered  to  Betteley,  as  agent  of  the  defendants, 
a  memorandum  of  the  contract,  partly  written  and  partly  printed,  as 
follows,  the  written  parts  being  here  put  in  italics  :  — 

Coal,  when  delivered  on  board  of  vessels,  boats,  or  barges,  to  be  in 
all  respects  at  the  purchaser's  risk  ;  bills  of  lading,  or  other  regular  tes- 
timony of  shipment,  to  be  proof  of  such  delivery,  both  as  to  time  and 
quantity.  Each  cargo  of  coal  to  be  settled  for  from  time  to  time  as 
delivered,  in  the  mode  specified  in  the  contract.  Captains  of  vessels 
sent  by  purchasers  for  their  coal  to  bring  written  orders,  and  take  each 
his  regular  turn  in  loading.  All  possible  despatch  will  be  given  in  load- 
ing, but  no  claims  will  be  allowed  for  demurrage,  nor  for  the  conse- 
quences of  unavoidable  delay.  No  responsibility  assumed  as  regards 
procuring  vessels,  boats,  or  barges;  but  every  exertion  will  be  used  to 
engage  them.  Every  effort  will  be  made  for  the  fulfilment  of  this  con- 
tract ;  but  if  prevented  or  obstructed  by  breaches  or  other  unavoidable 
occurrences  on  the  canals  or  railroads  or  at  the  mines,  or  by  combina- 
tions, strikes,  or  turn-outs  among  miners,  boatmen,  or  laborers,  no  claim 


OS 3  LERXED   V.    WANXEMACHER.  [CHAP.  VI. 

for  damages  will  be  allowed.  Wannemacher  and  Maxfield,  commission 
merchants,  Philadelphia.     Boston,  March  31,  1863. 

On  the  above  terms  and  conditions,  please  deliver  on  board  at  your 
wharves  at  Philadelphia,  to  be  shipped  to  Cambridgeport,  10  feet  of 
water,  7  bridges,  1,000  tons  .  .  .  Swatara /  800  Stove,  200  Egg ; 
Swatara  81.  -30. 

Terms  cash,  or  approved  paper  at  ;  interest  added  from  date 

of  bill  of  lading  or  other  proof  of  shipment ;  United  /States  tax  to  be 
added.  We  ic ill  send  our  own  vessels.  After  first  cargo  is  sloped, 
the  purchaser  has  the  right  to  refuse  the  balance  if  not  satisfactory. 

T.  P.  Lemed  and  Son. 

At  the  same  time  Betteley  signed  the  name  of  "  Wannemacher  and 
Maxfield,  by  Albert  Betteley  "  to  a  memorandum  precisely  similar  to 
the  above  in  every  respect,  except  that  the  name  of  the  plaintiffs  was 
not  signed  to  it,  and  delivered  the  same  to  the  plaintiffs.  Two  or 
three  weeks  afterwards  Betteley,  as  agent  of  the  defendants,  wrote 
upon  the  back  of  the  memorandum  delivered  to  him  by  the  plaintiffs 
these  words:  "  To  be  shipped  immediately,  if  vessels  are  not  sent;" 
and  the  plaintiffs  signed  the  same,  and  redelivered  the  memorandum  to 
him.  Both  of  the  above  papers  were  put  in  evidence  by  the  plaintiffs, 
the  one  signed  by  them  being  produced  by  the  defendants  on  notice. 
The  price  of  coal  subsequently  increased  in  the  market,  and  the  defend- 
ants refused  to  deliver  the  said  1,000  tons. 

Upon  the  introduction  of  this  evidence  the  judge  ruled  that  the  action 
could  not  be  maintained,  and  a  verdict  was  accordingly  taken  for  the 
defendants.     The  plaintiffs  alleged  exceptions. 

G.  A.  Somerby,  for  the  plaintiffs. 

C.  A.  Welch,  for  the  defendants. 

Hoar,  J.  The  ruling  to  which  exceptions  were  taken  at  the  trial 
was  this :  that  the  plaintiffs  could  not  maintain  their  action  upon  the 
contract  set  forth  in  the  declaration,  because  it  was  a  contract  for  the 
sale  of  merchandise  for  the  price  of  more  than  fifty  dollars,  and  there 
was  no  acceptance  of  any  part  of  the  goods,  or  giving  anything  in 
earnest  to  bind  the  bargain  or  part  payment,  and  no  sufficient  note  or 
memorandum  in  writing  of  the  bargain  made  and  signed  by  the  defend- 
ants or  by  an}-  person  thereunto  by  them  lawfully  authorized.  Gen. 
Sts.  c.  105,  §  5.  And  the  question  before  us  is  of  the  sufficiency  of  the 
memorandum  produced. 

The  first  objection  is  that  neither  the  memorandum  signed  by  the 
purchasers  and  delivered  to  the  sellers,  nor  the  counterpart  signed  by 
the  .sellers  and  delivered  to  the  purchasers,  contains  in  itself  a  complete 
statement  of  the  bargain  ;  that  there  is  nothing  in  the  papers  them- 
selves by  which  they  can  be  connected,  and  it  is  not  sufficient  to  con- 
ii' ei  thrin  by  parol;  and  that  if  connected,  they  are  only  orders,  and 
do  no1   amount  to  a  contract. 

On   examining  the  memorandum  retained  by  the  sellers,  which  is 


SECT.  VII.]  LBEKED   V.    WANNEMAC'HER.  989 

signed  by  the  plaintiffs,  we  think  it  is  a  complete  memorandum  of  the 
bargain  proved,  and  would  undoubtedly  have  been  sufficient  in  an  action 
by  the  defendants  against  the  plaintiffs.  It  must  be  observed  that  the 
contract  itself,  and  the  memorandum  which  is  necessary  to  its  validity 
under  the  Statute  of  Frauds,  are  in  their  nature  distinct  things.  The 
statute  presupposes  a  contract  by  parol.  Marsh  v.  Hyde,  3  Gray,  333. 
The  contract  may  be  made  at  one  time,  and  the  note  or  memorandum 
of  it  at  a  subsequent  time.  The  contract  may  be  proved  by  parol,  and 
the  memorandum  may  be  supplied  by  documents  and  letters  written  at 
various  times,  if  they  all  appear  to  have  relation  to  it,  and  if  coupled 
together  they  contain  by  statement  or  reference  all  the  essential  parts 
of  the  bargain,  signed  by  the  party  to  be  charged  or  his  agent.  Wil- 
liams v.  Bacon,  2  Gray,  387.  Now  it  was  proved  by  parol  testimony 
that  the  contract  declared  on  was  made  orally  by  the  defendants, 
through  their  agent,  with  the  plaintiff;  and  that  the  memorandum  was 
delivered  to  the  defendants  by  the  plaintiffs  as  a  statement  of  the  terms 
of  the  bargain.  In  the  printed  part  it  is  spoken  of  as  "  this  contract" 
and  "  the  contract."  It  recites  that  "  every  effort  will  be  made  for  the 
fulfilment  of  this  contract."  It  then  contains  a  request  to  the  defend- 
ants to  deliver  the  coal  "  on  the  above  terms  and  conditions"  "at  your 
wharves  at  Philadelphia/'  —  the  defendants' place  of  business,  "to  lie 
shipped  to  Cambridgeport,"  —  the  plaintiffs'  place  of  business.  The 
quantity,  price,  and  terms  of  payment  are  then  stated.  It  says,  *'  We 
will  send  our  own  vessels,"  an  agreement  to  receive;  and  conclud.  - 
with  an  option  to  "the  purchaser"  to  refuse  all  but  the  first  cargo  if 
that  is  not  satisfactoiy.  That  there  is  a  contract, — a  seller,  a  pur- 
chaser, a  thing  sold,  a  price,  a  place  of  deliver}-,  and  terms  of  payment, 
—  all  sufficiently  appear.  It  is  true  that  part  of  the  paper  is  in  form 
an  order  ;  but  we  can  have  no  doubt  that,  taking  the  whole  together, 
it  shows  an  agreement  to  purchase.  As  was  said  by  Mansfield,  C.  J  , 
in  Allen  v.  Bennet,  3  Taunt.  169:  "The  defendant's  counsel  dis- 
tinguishes between  an  order  and  an  agreement  to  buy ;  but  if  I  go  to  a 
shop  and  order  goods,  do  I  not  agree  to  buy  them  ?  " 

The  only  defect  then  is  the  want  of  the  signature  of  the  defendants 
or  that  of  their  authorized  agent.  If  this  had  been  the  only  paper  exe- 
cuted, it  would  deserve  serious  consideration  whether,  if  shown  to  have 
been  made  as  a  memorandum  of  a  bargain  concluded  between  the  par- 
ties, delivered  as  such  by  the  plaintiffs  and  accepted  as  such  by  the 
agent  of  the  defendants,  the  printed  name  of  the  defendants  would  not 
have  been  sufficient,  upon  the  authorities,  to  answer  the  requirements 
of  the  statute  as  a  signature  by  thorn.  Saunderson  v.  Jackson,  3  Esp. 
R.  180;  s.  c.  2  B.  &  P.  238.  But  we  do  not  put  the  case  on  this 
ground,  because  the  counterpart  of  the  contract  delivered  by  the  defend' 
ants  to  the  plaintiffs  is  signed  by  them  through  their  agent  Betteley. 
As  a  separate  paper,  that  is  in  its  turn  defective  by  reason  of  not  con- 
taining the  name  of  the  purchaser.  But  the  two  papers  were  prepared 
at  one  time,  and  delivered  simultaneously  as  parts  of  the  same  trans- 


900  LERXED   V.    WANNEMACHER.  [CIIAr.  VI. 

action.  The  one  produced  by  the  plaintiffs  is  signed  so  as  to  charge 
the  defendants.  They  gave  to  the  defendants  one  by  which  they  were 
themselves  bound.  The  two  show  clearly,  when  construed  by  their  own 
language  as  applied  to  the  existing  circumstances,  which  party  was  the 
seller  and  which  the  purchaser.  And  we  can  see  no  reason  upon  prin- 
ciple or  authority  why  they  should  not  have  the  same  effect  as  if  both 
the  signatures  were  to  the  same  paper.  The  intrinsic  evidence  which 
they  afford  that  they  refer  to  the  same  transaction  is  very  strong  and 
competent  for  the  consideration  of  a  jury  ;  and  in  the  absence  of  all 
proof  that  a  precisely  similar  contract  was  made  by  either  party  with 
any  other  person,  would  be  extremely  cogent. 

The  case  does  not  much  resemble  any  of  those  cited  for  the  defend- 
ants, in  which  the  doctrine  has  been  stated  that  when  the  memorandum 
is  made  out  from  several  papers  they  must  be  shown  upon  their  face  to 
have  a  mutual  relation  to  each  other ;  and  that  this  relation  cannot  be 
established  by  extrinsic  evidence.  This  is  the  rule  of  the  text-books 
(2  Kent's  Com.  6th  ed.,  511  ;  Browne  on  Statute  of  Frauds,  §  S50)  ; 
and  its  general  correctness  is  well  settled.  Morton  V.  Dean,  13  Met 
885.  Most  of  the  cases  to  which  we  have  been  referred  have  been 
those  of  sales  at  auction,  where  the  conditions  of  sale  were  not  con- 
tained in  or  annexed  to  the  memorandum  which  was  signed.  Here  the 
whole  terms  and  conditions  of  the  bargain  are  stated  alike  in  the  .twt 
copies  of  the  memorandum,  one  of  which  is  signqji  by  each  party. 

There  are  however  two  specific  objections  which  deserve  attention. 
In  each  paper  the  statement  is  made,  "  We  will  send  our  own  vessels ;" 
and  as  they  are  signed,  one  by  the  plaintiffs  and  the  other  by  the 
defendants,  it  is  urged  that  the  meaning  of  the  word  "  we"  becomes 
uncertain,  or  that  the  two  parts  of  the  memorandum  are  made  Contra- 
dictory. Beside  this,  one  part  of  the  contract  was  altered  by  the  addi- 
tional agreement  written  by  the  defendants'  agent  and  signed  by  the 
plaintiffs,  "  to  be  shipped  immediately,  if  vessels  are  not  sent ;  "  and  no 
corresponding  alteration  has  been  signed  by  the  defendants. 

The  first  difficulty  seems  to  be  capable  of  a  satisfactory  solution. 
The  printed  part  of  the  memorandum  clearly  contemplates  that  the 
shipment  of  the  coal  is  to  be  made  in  vessels  to  be  furnished  by  the 
vendors,  although  the}'  assumed  no  responsibility  about  the  vessels 
except  reasonable  diligence  in  procuring  them.  The  insertion  of  the 
written  clause,  "  We  will  send  our  own  vessels,"  could  only  be  ex- 
plained as  importing  a  change  in  this  respect.  In  the  part  of  the  con- 
tract signed  by  the  plaintiffs,  "we"  would  mean  the  purchaser.  In 
the  other  part  the  phrase  follows  the  expression  "your  wharves," 
when  speaking  of  the  wharves  of  the  defendants;  and  "we"  is  thus 
used  in  contradistinction  from  "you,"  the  vendors.  The  agent  of  the 
vendors  signs  the  paper;  but  still,  if  not  with  perfect  grammatical  cor- 
rectness of  expression,  it  is  sufficiently  obvious  that  in  using  the  word 
"we"   he  means  the  purchasers. 

The  additional  clause   written   upon  the  part  of  the  memorandum 


SECT.  VII.]  DOHEKTY   V.    HILL.  991 

retained  by  the  defendants  presents  a  more  difficult  question,  though  it 
shows  very  clearly  who  were  meant  by  tw  we"  in  the  part  of  the  eon 
tract  just  considered.  But  it  is  obvious  that  it  was  not  meant  to  im- 
pair the  contract  which  had  been  made.  It  is  an  additional  stipulation 
to  take  eifeet  upon  a  contingency  which  has  not  happened.  The  evi- 
dence showed  that  vessels  were  sent  by  the  plaintiffs.  And  if  the 
contingency  had  happened,  it  was  only  the  substitution  of  a  new  mode 
of  performance  of  which  the  defendants  or  plaintiffs  might  have  availed 
themselves,  even  if  made  only  by  parol.  Ctimmings  v.  Arnold,  3  Met. 
48G  ;  Stearns  v.  Hall,  9  Cash.  31.  If  it  were  not  binding  on  the  de- 
fendants because  no  memorandum  of  it  was  signed  by  them,  it  could 
not  prevent  the  plaintiffs  from  enforcing  the  original  contract.  It  is 
obviously  inadmissible  for  the  defendants  to  set  it  up  as  changing  the 
contract  as  evidenced  by  the  completed  memorandum,  and  at  the  same 
time  to  deny  its  obligation  for  want  of  their  own  signature. 

It  was  held  by  the  English  Court  of  Exchequer  in  the  recent  case  of 
Bluck  v.  Gompertz,  7  Welsh.,  Ilurlst.  &  Gord.  8G2,  that  where  a  correc- 
tion was  made  upon  the  memorandum  of  a  contract  by  the  defendant, 
and  signed  only  by  the  plaintiff,  the  original  signature  of  the  defendant 
was  a  sufficient  signing  under  the  statute.  That  decision  would  be 
applicable  to  the  present  case  if  the  memorandum  had  been  contained 
in  one  paper,  or  if  the  indorsement  had  been  made  upon  the  part  con- 
taining the  signature  of  the  defendants'  agent.  It  is  more  doubtful 
whether  it  can  be  held  to  have  the  same  effect  where  the  memorandum 
is  contained  on  separate  papers,  and  we  do  not  put  the  decision  on  that 
ground. 

The  other  grounds  of  exception  taken  at  the  trial  have  not  been 
insisted  on  by  the  plaintiff's  counsel,  and  are  clearly  untenable. 

Exceptions  susta tned. 


DOHERTY   v.    HILL. 
Supreme  Judicial  Court,  March  16  —  May  9,  1887. 

[Reported  In  144  ^fassachusetts,  465. J 

Contract  for  breach  of  an  agreement  to  convey  to  the  plaintiff  cer- 
tain real  estate  in  Stoneham.     Answer,  the  Statute  of  Frauds. 

Trial  in  the  Superior  Court,  before  Blodgett,  J.,  who  allowed  a  bill  of 
exceptions,  in  substance  as  follows  :  — 

J.  H.  Green,  who  claimed  to  act  as  agent  for  the  defendant,  and 
who  executed  the  contract  declared  on,  testified,  for  the  plaintiff,  that 
the  estate  referred  to  in  said  contract  was  placed  in  his  hands  by  the 
defendant  in  May,  1884,  at  which  time  the  defendant  instructed  him  to 
sell  it  for  the  sum  of  81,300;  that  on  May  28,  1885,  in  reply  to  a 
telegram  from  him  inquiring  at  what  price  she  would  sell,  the  defend- 


092  DOHERTY   V.    HILL.  [CHAP.  VI. 

ant  sent  him  the  following  telegram,  signed  by  her:  "  Eleven  hundred 
and  fifty  cash,  if  possible  try  for  more;  "  that  on  May  30,  1885,  the 
defendant  wrote  the  witness  a  letter,  which  contained  the  following: 
■•  As  I  telegraphed  you,  1  will  sell  the  house  in  Lincolnville  for  §1,150  ; 
will  pay  last  year's  taxes  and  throw  in  insurance,  which  lasts  until 
1887.  .  .  .  I  will  make  terms  easy  for  the  party  purchasing  it,  say 
three  or  four  hundred  down  and  the  other  payments  satisfactorily 
secured  by  mortgage  ; "  and  that  on  June  1,  1885,  and  after  receiving 
this  letter,  the  witness  received  from  the  plaintiff  §100  in  cash,  and  ex- 
ecuted and  gave  to  the  plaintiff  the  following  paper,  being  the  same 
declared  on:  "$100.  Stoneham,  June  1st,  1885.  Rec'd  of  Patrick 
Doherty  one  hundred  dollars  to  bind  sale  of  estate  on  Congress  Street 
owned  by  Sarah  A.  Hill.  S350  cash.  $850  in  mortgage  at  6  per  cent. 
J.  Horace  Green,  agent  for  Sarah  A.  Hill." 

The  witness  further  testified,  that  he  had  never  paid  back  to  the  plain- 
tiff the  SI 00  received  ;  and  that  he  told  the  plaintiff  he  would  pay  inter- 
est on  it,  and  that  the  plaintiff  could  have  the  money  whenever  he  called 
for  it.  The  plaintiff  offered  the  contract  of  sale  in  evidence,  to  which 
the  defendant  objected  ;  but  the  judge  admitted  it. 

There  was  also  evidence  tending  to  show  that  the  defendant,  by  her 
agent,  one  Kimball,  sold  said  estate,  on  June  11,  1885,  to  one  Almy, 
and  delivered  to  Almy  a  deed  thereof. 

The  defendant  testified,  and  upon  this  point  her  testimony  was  not 
controverted,  that  in  addition  to  the  estate  claimed  to  have  been  sold  to 
the  plaintiff,  and  which  consisted  of  a  lot  of  land  with  a  dwelling-house 
on  it,  she  owned,  on  June  1,  1885,  several  lots,  containing  two  or  three 
acres  in  all,  and  all  in  one  parcel,  of  other  land  on  said  Congress  Street, 
upon  the  other  side  of  the  street  and  nearly  opposite  to  the  land  in  ques- 
tion ;  and  that  this  parcel  of  land  had  no  buildings  upon  it. 

The  plaintiff  offered  to  show  that  the  estate  named  in  the  agreement 
was  the  lot  with  the  dwelling-house  on  it.  The  defendant  requested  the 
judge  to  rule  that  it  could  not  be  shown  by  extrinsic  evidence  to  which 
of  the  defendant's  estates  on  Congress  Street  the  written  memorandum 
referred  ;  but  the  judge  declined  so  to  rule. 

The  plaintiff  offered  in  evidence  a  draft  of  a  deed  from  the  defendant 
to  him  of  the  estate  which  the  plaintiff  claimed  to  have  purchased,  which 
draft  was  made  by  Green  and  sent  by  him  to  the  defendant  to  be  ex- 
ecuted, and  which  the  defendant  refused  to  execute.  To  the  admis- 
sion of  this  draft  in  evidence  the  defendant  objected;  but  the  judge 
admitted  it. 

The  defendant,  for  the  purpose  of  showing  the  value  of  the  estate  as 
affecting  the  question  of  damages,  offered  to  prove  that  said  estate  had 
been,  since  December,  1885,  in  the  hands  of  a  real  estate  agent  in 
Stoneham,  with  authority  to  sell  it  for  81,200,  but  no  purchaser  had 
been  found.     The  judge  excluded  the  evidence  offered. 

The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  $200  ;  and 
the  defendant  alleged  exceptions. 


SECT.  VII.]  DOHEKTY    V.    HILL.  993 

A.  V.  Lynde,  for  the  defendant. 

E.  B.  Powers  and  J.  C.  Kennedy  (S.  L.  Powers  with  them),  for  the 
plaintiff. 

Holmes,  J.  The  memorandum  would  have  satisfied  the  Statute  of 
Frauds,  if  the  evidence  had  shown  that  there  was  only  one  "  estate  on 
Congress  Street  owned  by  Sarah  A.  Hill,"  in  Stoneham,  where  the 
memorandum  is  dated.  Hurley  v.  Brown,  98  Mass.  545  ;  Scanlan  c. 
Geddes,  112  Mass.  15;  Mead  v.  Parker,  115  Mass.  413.  But  the  evi- 
dence shows  that  there  were  more  than  one.  The  plaintiff  argues  that 
this  is  an  ambiguity  introduced  by  parol,  and  that  therefore  it  mav  be 
removed  by  parol.  98  Mass.  548.  But  the  statement  seems  to  us  mis- 
leading. The  words  show  on  their  face  that  they  may  be  applicable  to 
one  estate  only,  or  to  more  than  one.  If,  on  the  existing  facts,  they 
apply  only  to  one,  then  the  document  identifies  the  land  ;  if  not,  it  fails 
.to  do  so.  In  every  ease,  the  words  used  must  be  translated  into  things 
and  facts  by  parol  evidence.  But  if,  when  so  translated,  they  do  not 
"  identify  the  estate  intended,  as  the  only  one  which  would  satisfy  the 
description,"  they  do  not  satisfy  the  statute.  See  Slater  v.  Smith,  117 
Mass.  96,  98  ;  Potter  v.  Duffield,  L.  R.  18  Eq.  4,  7. 

The  letter  from  the  defendant  to  her  agent  did  identify  the  estate,  we 
will  assume,  as  the  only  one  owned  by  her  which  had  a  house  upon  it. 
But,  of  course,  this  letter  was  not  of  itself  a  sufficient  memorandum. 
It  has  been  held  that  an  offer  in  writing,  afterwards  accepted  orallv, 
satisfies  the  statute.  Sanborn  v.  Flagler,  9  Allen,  474.  Browne,  St. 
of  Frauds  (4th  ed.),  §  345  a.  But  this  letter  was  only  an  authority  to 
offer.  It  does  not  appear  to  have  been  exhibited  to  the  plaintiff,  as  in 
Hastings  v.  Weber,  142  Mass.  232,  and  plainly  was  not  intended  to  be. 
We  express  no  opinion  whether  it  would  have  been  sufficient  if  it  had 
been  shown  and  its  terms  had  been  accepted. 

Again,  the  letter  cannot  be  used  to  help  out  the  memorandum,  on 
the  ground  that  the  latter  impliedly  incorporates  it.  The  memorandum, 
it  is  true,  purports  to  be  signed  by  an  agent,  and  therefore  may  be  said 
to  refer  by  implication  to  some  previous  authority.  But  this  implied 
reference  is  at  most  rather  an  implied  assertion  that  authority  exists 
(which  may  be  oral),  than  a  reference  to  documents  containing  the 
authority.  Jefts  v.  York,  10  Cush.  392,  395  ;  Boston  &  Albany  Pail- 
road  y.  Richardson,  135  Mass.  473,  475.  It  would  hardly  be  argued 
as  a  defence  to  an  action  of  deceit,  against  a  person  who  had  assumed 
to  act  as  agent  without  authority,  that  the  memorandum  signed  by  him 
impliedly  referred  to  and  incorporated  the  written  communications  from 
his  alleged  principal,  and  that  therefore  the  plaintiff  must  be  taken  to 
have  known  them,  and  that  they  did  not  confer  the  authority  assumed. 
In  this  case,  the  agent  had  authority  by  telegram  before  he  received  the 
letter;  the  argument,  therefore,  would  have  to  go  the  length  of  saying 
that  all  documents  of  authority  were  tacitly  incorporated. 

In  Hurley  /-.  Brown,  supra,  it  was  held  that  a  memorandum  of  an 
agreement  to  sell  kta"  house  on  a  certain  street  should  be  presumed 

63 


994  DOHEKTY   V.    HILL.  [CHAP.  VI. 

to  mean  a  house  belonging  at  the  time  to  the  contractor.  It  may  be 
asked  whether  there  is  not  at  least  as  strong  a  presumption  that  a 
memorandum  signed  by  an  agent  refers  to  property  which  he  is  author- 
ized to  sell,  lint  unless  the  document  of  authority  is  specifically  incor- 
porated, then  the  memorandum  is  only  of  a  sale  of  a  house  which  the 
agent  is  authorized  in  some  way  to  sell,  and,  so  far  as  the  memorandum 
goes,  his  authority  maj-  as  well  be  oral  as  written.  The  difference  may 
be  one  of  degree,  but  the  distinction  is  none  the  less  plain  between  an 
identification  by  extrinsic  proof  of  the  usually  manifest,  external,  and 
continuing  fact  that  the  part}'  owned  but  one  house  on  a  certain  street, 
and  that  by  similar  proof  of  possibly  oral  communications  between  prin- 
cipal and  agent,  which  is  precisely  the  kind  of  identification  the  statute 
seeks  to  avoid.  See  Whelan  v.  Sullivan,  102  Mass.  204,  20G  ;  Rossiter 
v.  Miller,  3  App.  Cas.  1124,  1141  ;  Potter  v.  Duiiield,  supra;  Jarrett 
v.  Hunter,  34  Ch.  D.  182. 

The  same  considerations  would  apply  to  an  attempt  to  help  out  the 
memorandum  by  evidence  that  the  estate  intended  was  the  only  one  which 
the  plaintiff  knew  of  as  belonging  to  the  defendant. 

The  remaining  exceptions  become  immaterial.  The  draft  of  a  deed 
of  the  premises  was  admissible  in  connection  with  proof  that  it  was 
offered  to  the  defendant  for  execution,  to  show  a  breach,  but  not  to  aid 
the  memorandum.  The  deed  was  not  referred  to  by  the  previously  ex- 
ecuted memorandum,  nor  were  its  contents  governed  by  the  signature 
of  i  he  latter. 

Evidence  that  a  real  estate  agent  had  not  sold  the  land  for  $1,200  was 
not  evidence  of  its  value.  Exceptions  sustained. 

Note.  — Few  cases  seem  to  have  arisen  in  the  United  States  in  which  was  involved 
a  question  as  to  the  sufficiency  of  the  description  of  personal  property  contained 
in  a  memorandum  necessary  to  satisfy  the  Statute  of  Frauds.  Many  cases  have 
arisen,  however,  presenting  similar  questions  as  to  real  estate,  and  the  cases  show 
some  conflict.  See  Wood  on  the  Statute  of  Frauds,  §  353.  In  Mead  v.  Parker,  115 
.Mass.  413,  it  was  held,  following  Hurley  v.  Brown,  98  Mass.  545,  that  in  a  memoran- 
dum of  sale,  dated  at  Boston,  the  words  "a  house  on  Church  Street "  sufficiently 
descrihed  the  property.  Wki.i.s,  ,].,  in  delivering  the  opinion  of  the  court,  said  :  "  The 
most  specific  and  precise  description  of  the  property  intended,  requires  some  parol 
proof  to  complete  its  identification.  A  more  general  description  requires  more. 
When  all  the  circumstances  of  possession,  ownership,  situation  of  the  parties,  and 
of  their  relation  to  each  other  and  to  the  property,  as  they  were  when  the  negotiations 
and  the  writing  was  made,  are  disclosed,  if  the  meaning  and  application  of  the  writing, 
read  in  the  light  of  those  circumstances,  are  certain  and  plain, the  parties  will  be  bound 
by  it  as  a  sufficient  written  contract  or  memorandum  of  their  agreement.  Mead  0. 
Parker  was  followed  by  Slater  v.  Smith,  1 1 7  Mass.  96.  In  Hodges  r.  Rowing,  58  Conn.  12, 
"  his  place  in  Str.it  ford  containing  about  15  acres  "  was  held  sufficient,  but  in  Andrew 
v.  Babcock,  63  Conn.  109,  "  a  tract  of  land  with  all  the  buildings  thereon,  adjoining 
the  New  Haven  and  Derby  R.R.,  in  the  town  of  Orange,  and  containing  some  twenty 
acres  more  or  less  "  was  said  to  be  insufficient  though  apparently  the  seller  owned  no 
other  property  answering  the  description.  In  Fortesque  v.  Crawford,  105  N.  C.  29, 
"  his  land  "  was  held  "  too  vague  and  indefinite  to  admit  parol  evidence  to  locate  the 

land."  In  Falls  of  N'euse  Manufacturing  Co.  V.  Hendricks,  106  N.  C.  485,  "  his  land 
where  he  now  lives  "  was  held  sufficient  if  BUBceptible  of  identification  by  extrinsic 
evidence.      In  Lowe  V.  Harris,  1  12  X.  C.  472,  the  description  was  also  "  his  land,"   but 


SECT.  VII.]  DOIIERTY   V.    HILL. 

since  the  earlier  cases  and  since  the  cause  of  action  arose  in  this  case,  the  legislature 
had  enacted  that  parol  testimony  might  be  introduced  to  identify  the  land.  'I  he 
description  was  held  insufficient,  a  majority  of  the  court  holding  that  the  act  could  not 
operate  retroactively. 

[n  Jones  v.  Tye,  20  Southwestern  Rep.  388  (Ky.  1892),  "  land  adjoining  the  Mr- 
Keblv  land"  was  held  insufficient,  the  seller  having  two  parcels  answering  that 
description. 

In  Holmes  v.  Evans,  48  Miss.  247,  "a  piece  of  property  On  the  cornet  of  Main  and 
Pearl  Streets,  city  of  Natchez,  county  of  Adams.  State  of  Mississippi,"  was  held 
insufficient,  hecause  then-  was  no  reference  in  the  memorandum  itself  to  anything 
extrinsic  that  would  define  which  corner  was  intended.  The  court  said,  however, 
"  Extraneous  evidence  so  referred  to,  and  any  other  evidence  in  connection  with  it, 
which  may  serve  to  identify  and  fix  the  Limits  of  the  land  intended  is  admissible  and 
proper.  There  would  appear  to  be  no  limit  in  that  direction  except  what  is  I 
found  in  the  general  reference  of  the  contract.  Eor  example,  if  a  contract  pui  ; 
to  embrace  all  the  land  owned  by  the  vendor  in  a  certain  county,  it  would  he  admis- 
sible to  prove  any  and  all  the  land  owned  by  him  in  that  county." 

In  Mellon  i».  Davison,  123  Pa.  298,  "a  lot  of  ground  fronting  about  190  feet  on  the 
P.  U.K.  in  the  21st  ward,  Pittsburgh,  Pa./'  was  held  insufficient,  though  the  seller 
owned  hut  one  piece  of  land  in  the  ward  named.  See  also  Hiueer  v.  Collins,  156 
Pa.  .'542. 

In  an  article  by  F.  Vaughan  Hawkins,  Esq.,  on  the  Principles  of  Legal  Interpreta- 
tion with  Reference  especially  to  the  Interpretation  of  Wills,  2  Juridical  Soc.  Papers, 
298,  it  is  said  (p.  326,  et  seq.)  :  "The  other  limit  of  interpretation  of  which  I  have 
spoken  is  the  result  of  the  necessity  of  there  being  a  sufficient  written  expression  ; 
the  meaning  of  the  words  cannot  be  added  to  or  corrected  beyond  a  certain  point,  or 
the  words  cease  to  be  capable  of  hearing  the  interpretation  to  be  put  upon  them  ;  and 
though  the  intent  may  be  known,  there  is  no  expression  in  which  it  can  clothe  itself. 
It  cannot  be  too  often  repeated  that  legal  interpretation  is  not  a  mere  ascertaining  of 
the  intent ;  it  acts  only  by  putting  a  meaning  consistent  with  the  intent,  upon  the 
words.  And  the  answer  to  the  question,  What  is  a  sufficient  written  expression  ' 
will  vary  largely  with  different  classes  of  writings,  and  under  different  systems  of 
jurisprudence.  In  this  respect  it  is  manifest  that  private  documents  must  be  inter- 
preted more  strictly  than  public.  A  deed  or  will  made  by  a  private  person  is  n 
with  the  knowledge  of  the  command  of  the  law,  which  requires  the  writer  to  express 
himself  fully  and  completely,  and  gives  validity  to  the  instrument  only  on  the  con- 
dition of  reasonable  compliance  with  the  demand  which  it  has  imposed.  On  the  other 
hand  a  document,  such  as  a  treaty,  which  as  to  its  form  is  almost  wholly  independent 
of  everything  but  the  will  of  the  contracting  parties,  leaves  the  amount  of  the  expres- 
sion much  less  determinate;  and,  although  an  intention  must  fail  of  effect  which  has 
no  corresponding  expression  of  any  kind  in  the  document,  yet  the  interpreter  must 
resort  very  much  to  the  inferred  will  of  the  parties  themselves  for  a  criteriou  of  suf- 
ficiency of  expression,  which  thus  becomes  almost  wholly  merged  in  the  general 
inquiry  after  the  probable  intention,  —  meaning  as  1  do,  by  inti  ntion,  wherever  it  occurs 
in  this  paper,  not  a  mere  inchoate  act  of  the  mind,  that  which  a  person  intended  to 
do,  but  took  no  step  towards  doing,  but  something  which  as  a  mental  act  was  com- 
plete, and  which  the  writer  endeavored  to  express  by  the  words  he  made  use  of, 
although  those  words  in  fact  express  his  meaning  more  or  less  imperfectly. 

"  In  the  interpretation  of  writings  where  the  latitude  allowed  to  the  interpreter  is 
considerable,  and  particularly  where  direct  evidence  of  intention  not  contained  in  the 
writing  is  admitted,  the  question  of  what  is  a  sufficient  written  expression  becomes 
evidently  of  gretft  practical  importance.  If  a  perfectly  definite  intent  can  be  collected 
by  the  aid  only  of  collateral  evidence  of  it,  coupled  with  the  meaning  of  the  w 
it  is  probable  that  the  latter  (dement,  that  of  the  meaning  of  the  words,  bear-  a 
sufficiently  greaf proportion  to  the  former,  to  assure  the  interpreter  that  the  ■.. 
will  bear  the  meaning  ami  express  it  sufficiently.  But  this  security  does  not  exist 
where  parol  declarations  of  intention,  for  example-,  are  admissible.     The  audon 


996  DOHERTY   V.    HILL.  [CHAP.  VI. 

fact  that  no  general  definition  of  what  is  in  such  cases  a  sufficient  expression  can  be 
fixed  upon  beforehand,  is  made  use  of  by  Sir  James  Wigram  as  a  constant  argument 
against  admitting  evidence  of  intention  generally.  'Once  admit,'  says  he  (p.  128), 
'  that  the  person  or  thing  intended  by  the  testator  need  not  be  adequately  described  in 
the  will,  and  it  is  impossible  to  stop  short  of  the  conclusion  that  a  mere  mark  will  in 
every  case  supply  the  place  of  a  proper  description.'  Surely  there  is  no  impossibility 
smli  as  here  contended.  It  is  reasonable  to  say  that  if  a  testator,  for  instance, 
describes  a  person  by  his  surname  and  Christian  name,  that  is  a  sufficient  description 
to  satisfy  the  letter  of  the  law,  though  it  may  in  fact  be  insufficient  completely  to 
identify  the  person  intended.  If,  on  the  other  hand,  a  testator  should  say,  '  I  give  so 
and  so  to  my  son,'  when  he  has  nine  sons,  it  would  probably  be  right  to  decide  that  such 
a  description  was  not  a  sufficient  one,  since  it  was  one  which  the  writer  must  have 
known,  or  ought  to  have  known,  would  prove  ambiguous,  and  to  allow  of  an  addition 
to  which  by  parol  testimony  would  be  to  offer  a  great  temptation  to  perjury.  It  is 
evident  that  a  line  must  be  drawn  somewhere,  and  when  necessary  it  will  doubtless 
be  drawn  in  practice:  but  as  yet  the  boundary  of  testamentary  interpretation  on  this 
side  is  somewhat  imperfect,  and  there  is  no  rule  forbidding  the  introduction  of  parol 
testimony  of  intention  to  fill  np  even  such  a  manifestly  inadequate  description  as  that 
I  have  last  supposed. 

"  Many  questions  on  the  sufficiency  of  expression  arise  upon  the  interpretation  of 
informal  writings,  as,  for  instance,  contracts;  what  part  of  a  contract  required  by  law 
to  be  in  writing  need  be  expressed  in  the  writing:   how  far  usages  and  customs  of 
trade  may  be  imported,  and  the  like.     In  fact  all  the  most  difficult  problems  of  inter- 
pretation arise  upon  the  limits  of  it,  upon  the  extent  to  which  the  meaning  of  words 
may  be  modi  tied  by  other  signs  of  the  intent ;  upon  the  contest  in  short,  as  it  is  often 
termed,  between  the  letter  and  the  spirit.     Into  the  principles  which  questions  of  this 
nature  involve,  I  will  not  at  present  enter  more  minutely  ;  they  will  suggest  themselves 
in  relation  to  the  different  classes  of  legal  writings  to  any  one  who  clearly  appreciates 
the  real  nature  of  the  process  of  what  I  have  called  inferential  interpretation,  a  pro- 
cess in  reality  simple,  and  which,  like  reasoning,  is  practised  correctly  every  day  by 
persons  who  have  never  considered  what  it  is  they  do,  when  they  perform  it,  but  which 
can  never  be  understood  so  long  as  it  is  confounded  with  the  mere  grammar  and  dic- 
tionary operation  of  ascertaining  the  meaning  of  words.     One  consideration,  however, 
I  will  not  pass  over:  I  mean  the  great  differences  which  exist  in  the  measure  of  inter- 
pretation as  applied  under  different  judicial  systems  and  by  different  judicial  minds, 
and  the  consequent  necessity  for  accumulating  a  certain  mass  of  decisions,  in  order  to 
supply  a  uniform  standard,  and  to  fix  the  nearest  approach  to  absolute  correctness  by 
striking  an  average  of  opinions  through  a  long  series  of  years.     It  is  sometimes  said, 
in  relation  particularly  to  testamentary  interpretation,  that  authorities  can  be  of  no 
service,  that  to  quote  cases  is  to  construe  one  man's  nonsense  by  another  man's  non- 
sense, and  that  all  a  judge  has  to  do  is  to  read  the  writing  and  endeavor  to  make  out 
from  it  the  meaning  of  the  testator      Now,  if  interpretation  were,  like  the  determina- 
tion of  the  meaning  of  words  whose  signification  is  fixed,  something  that  can  be  done 
with  absolute  certainty,  in  which   one   111:111  would  come  to  the  same  conclusion  as 
another,  and  which  is,  so  to  speak,  the  same  all  the  world  over,  the  study  of  previous 
authorities  might  indeed  be  unnecessary.     But,  in  truth,  it  would  be  as  reasonable  to 
say  that  no  authorities  were  to  be  consulted  on  a  question  of  equity;  that  a  judge 
ought  to  act  upon  his  own  notions  of  what  was  equitable  ;  and  that  as  circumstances 
are  infinitely  various,  one  case  could  never  show  what  it  was  right  to  do  in  another. 
Experience  shows  that  the  limits  of  interpretation  will  be  fixed  at  very  different  points 
by  different  persons;  and  there  is  perhaps  no  legal  subject  which  brings  out  peculiar- 
ities of  individual  bias  ami  disposition  more  strongly  than  difficult  problems  of  con- 
struction.    By  the  combined   result  of  the  decisions   of   a  succession  of  judges,  each 
bringing  his  mind  to  bear  on  the  views  of  those  who  preceded  him,  a  system  of  inter- 
pretation is  built  ii|>,  which  is  likely  to  secure  a  much  nearer  approaclrto  perfect  justice 
than  if  each  interpreter  were  left  to  set  np  his  own  standard  of  how  far  it  was  right 
to  go  in  supplying  the  defective  expression,  or  of  what  amounted  to  a  conviction  of 


SECT.  VII.]  HANSON   V.    MARSH.  997 

the  intent  aa  distinguished  from  more  speculative  conjecture  Rules  of  construction 
are  matters,  the  expediency  of  which  may  be  more  doubtful;  hut  that  principles  of 
construction  there  must  be  in  every  system  of  rational  interpretation,  and  that  these 
are  only  to  be  gathered  by  a  comparison  of  a  large  number  of  importanl  cases  and  in- 
striking  the  avera-c  of  a  large  number  <>f  individual  minds,  will  Dot,  I  think,  he  denied 
by  any  one  who  considers  interpretation  to  he,  as  I  have  described  it,  a  process  of 
reasoning  from  probabilities,  a  process  of  remedying,  by  a  sort  of  equitable  jurisdic- 
tion, the  imperfections  of  human  language  and  powers  of  using  language,  a  process 
whose  limits  are  necessarily  indefinite  and  yet  continually  requiring  to  be  practically 
determined, —  and  not,  as  it  is  not,  a  mere  operation  requiring  the  use  of  grammars 
and  dictionaries,  a  mere  inquiry  into  the  meaning  of  words." 


HANSON    y.    MARSH. 
Minnesota  Supreme  Court,  December  27,  1888. 

[Reported  in  40  Minnesota,  I  ] 

Dickinson,  J.  The  principal  ground  of  recovery,  as  set  forth  in 
the  complaint,  and  as  presented  in  the  case,  is  the  breach  of  an  alleged 
contract  for  the  sale  to  the  plaintiff,  by  the  defendant,  of  a  threshing- 
machine,  consisting  of  a  separator  and  engine.  The  plaintiff  had  a 
verdict  for  damages.  It  will  only  be  necessary,  upon  this  appeal  from 
an  order  denying  a  new  trial,  to  decide  as  to  the  validity  of  the  alleged 
contract  with  regard  to  the  Statute  of  Frauds.  The  following  written 
instrument,  signed  by  the  defendant,  is  relied  upon  as  a  sufficient 
memorandum  of  the  contract  to  answer  the  requirements  of  the  stat- 
ute :  "  Glencoe,  20th  May,  1887.  I,  John  Marsh,  having  this  day 
sold  to  Hans  Hanson,  of  the  town  of  Helen,  county  of  McLeod,  a 
certain  threshing-machine  (of  the  Agitator  Separator  manufacture, 
and  a  twelve-horse  Minnesota  Giant  engine),  and  do  by  this  writing 
agree  to  run  with  said  Hans  Hansou  (assisting  him  in  the  running  of 
this  machine)  for  the  term  of  one  month,  at  the  rate  of  two  dollars 
per  day.  And  I  further  bind  myself  not  to  purchase  another  machine 
for  the  term  of  two  years,  or  to  have  anything  to  do  with  the  running 
of  any  other  machine.  John  Marsh."  It  is  alleged  in  the  complaint, 
and  further  appears  from  the  evidence  in  the  case,  that  the  price  or 
consideration  to  be  paid  by  the  plaintiff,  in  performance  of  his  part  of 
the  agreement,  was  $1,100.  This  may  be  taken  to  have  been  an 
entire  price  or  consideration,  both  for  the  sale  of  the  property  and  for 
the  further  obligation  of  the  defendant,  as  expressed  in  the  above 
written  instrument.  The  plaintiff,  however,  alleges  in  his  complaint 
that  the  value  of  the  property  agreed  to  be  sold  was  81,400,  and  that 
the  value  of  the  defendant's  good-will  and  assistance  in  the  business 
was  $200.  Deducting  the  latter  sum  from  the  whole  contract  price,  it 
seems  that,  according  to  the  estimate  of  the  plaintiff,  the  sum  which 
could  be  ascribed  as  the  price  of  the  property  agreed  to  be  sold  was 
not  less  than  6900.     The  evidence,  too,  goes  to  show  that  the  sale  of 


998  HANSON    V.    MARSH.  [CHAP.  VI. 

the  property  was  the  principal  subject  of  the  transaction,  to  which  the 
further  agreement  expressed  in  the  memorandum  was  merely  incident ; 
ami  upon  the  whole  case  it  cannot  be  doubted  that  of  the  whole  stipu- 
lated price,  Si, 100,  the  greater  part  represented,  in  the  contemplation 
of  both  parties,  the  price  of  the  property  agreed  to  be  sold.  Such 
being  the  case,  the  agreement  involved  a  contract  for  the  sale  of  chat- 
tels "  for  the  price  of  fifty  dollars  or  more,"  within  the  meaning  of 
the  statute,  which  requires  a  note  or  memorandum  of  such  contract  to 
be  made  in  writing.  Such  a  contract  is  within  the  statute  ;  although 
it  also  embraces  some  other  agreement  to  which  the  statute  is  not 
applicable.  Harman  v.  Reeve,  18  C.  B.  587  ;  Irvine  v.  Stone,  6  Cush. 
508.  And  see  Hodgson  v.  Johnson,  El.  Bl.  &  El.  685,  and  Rand  v. 
Mather,  11  Cush.  1. 

While  it  appears,  both  from  the  pleadings  and  from  the  evidence, 
that  there  was  a  definite  stipulated  price  to  be  paid  by  the  plaintiff,  it 
will  be  observed  that  the  memorandum  contains  no  statement  of  or 
allusion  to  it.  The  price  is  an  essential  element  in  a  contract  of  sale, 
and  a  memorandum  which  does  not  state  the  price  —  unless,  perhaps, 
iu  cases  where,  no  price  being  stipulated,  it  is  left  to  be  measured  by 
the  rule  of  reasonable  or  market  value  —  is  insufficient  to  satisfy  the 
statute,  and  the  contract  is,  by  the  terms  of  the  statute,  void.  Elmore 
v.  Kingscote.  5  Barn.  &  C.  583;  Acebal  v.  Levy,  10  Biug.  376; 
Goodman  v.  Griffiths,  1  Hurl.  &  N.  574;  Ide  v.  Stanton,  15  Vt.  685; 
Waterman  v.  Meigs,  4  Cush.  497  ;  Ashcroft  v.  Butterworth,  136  Mass. 
511  ;  Stone  v.  Browning,  68  K  Y.  598,  604  ;  James  v.  Muir,  33  Mich. 
223;  Browne,  St.  Frauds,  §376;  1  Benj.  Sales,  p.  271,  §  251;  2 
Sehoulers,  Pers.  Prop.  §  492.  The  order  denying  a  new  trial  is 
reversed.1 

1  It  seems  generally  admitted  that  the  price  must  be  stated  if  a  price  was  agreed 
upon,  Browne  on  the  Statute  of  Frauds,  §§  .376,  377;  and  in  jurisdictions  where  it  is 
also  held  that  the  consideration  for  the  contract  must  appear  in  a  memorandum,  no  doubt 
can  ari>e  on  this  point.  But  in  some  jurisdictions  of  the  United  States  it  is  held  that 
the  consideration  need  not  he  state, 1.  and  this  lias  been  enacted  by  statute  in  Illinois, 
In  liana,  Kentucky,  Maine,  Massachusetts,  Michigan,  Nebraska,  New  Jersev,  and 
Virginia. 

In  Hayes  u  Jackson,  159  Mass.  451,  an  actiou  upon  a  contract  for  the  sale  of  land, 
the  only  memorandum  of  the  sale  stated  the  sale  to  be  "for  the  sum  of  $14,140,  sub- 
jeel  i'-  a  mortgage  <>f  8,000  dollars."  It  was  agreed  by  both  parties  at-  the  trial  that 
the  assumption  of  the  mortgage  was  part  of  the  consideration  and  went  to  make  up 
the  -mil  of  614,140,  A  majority  of  the  court  held  the  contrad  enforceable,  holding 
that    Pub.  Stats,  c  7s,  $  2,  making  any  statement  of  the  consideration  unnecessary, 

made  an  ern us  statement  unimportant,     Holmes,  J.,  delivering  the  opinion  of  the 

majority,  said  ■.  "  ( if  course  it  may  be  said  that,  in  a  bilateral  contract  like  the  present, 

thi  c  mtemporaneons  payment  of  the  price  is  a  condition  of  the  promise, and  therefore 

that  the  promise  cannot  be  sel  forth  truly  unless  the  consideration  is  stated.     But  the 

bion  i-  general,  ami  should  be  read  as  no  doubt  it  was  meant.    The 

only  effect    is  that  a  ],] ise   set   forth  as  absolute   may  be  subject  to  an  implied 

condition  of  performance  on  tl therside.     When  such  an  implied  condition  exists 

it  will  l,e  construed  into  the  writing,  and  knowledge  of  the  law  ^ives  notice  of  its 
istence,       In   some    cases   it   has   been    held   unnecessary    to  state  the   con- 


SECT.  VII.]  BIRD    V.    MUNKOE.  999 


BIRD  v.  M  UN  ROE. 
Supreme  Judicial  Court  of  Maine,  May  29,  1877. 
[Reported  in  6G  Maine,  387.] 
Peters,  J.     On  March  2,  1874,  at  Rockland,  in  this  State,  the  defend- 
ant contracted  verbally  with  the  plaintiffs  for  the  purchase  of  a  quantity 
of  iee,  to  he  delivered  (by  immediate  shipments)  to  the  defendant  in 
New  York.     On  March  10,  1874,  or  thereabouts,  the  defendant,  by  his 
want  of  readiness  to  receive  a  portion  of  the  ice  as  he  had  agreed  to. 
temporarily  prevented  the  plaintiffs  from  performing  the  contract   on 
their  part  according  to  the  preparations  made  by  them  for  the  purpose. 

sideration,  even  when  there  is  no  provision  like  our  §  2,  although  the  consideration  was 
executory.     Thornburg  v.  Masten,  88  N.  C.  293;  Miller  v.  Irvine,  I   Dev.  &   Bat.  103 
Ellis  v.  Bray,  7'.)  Mo.  227;  Violett  v.  Patton,  5  Cranch,  142;  Camp  v   Mure, nan,  84 
Ky.  635.     In   How  v.  Walker,  4  Gray,  318,  Thomas,  J.,  plainly  indicated  the  opinion 

that  §  2  of  the  statute  applies  in  all  cases,  pointing  out  that  this  .lues  not  mean  that 
when  the  parties  are  reversed  the  oral  agreement  will  he  sufficient  to  sustain  an 
action."  Field,  C.  J.,  with  whom  Knowlton,  J„  concurred,  wrote  an  elaborate  dissenting 
opinion,  saying  i„  part .  "I  do  not  know  whether  the  majority  of  the  court  intend  to 
make  a  distinction  hetween  contracts  of  sale  described  in  the  first  section  of  Pub.  Stats, 
c.  78  [land],  and  contracts  of  sale  described  in  the  fifth  section  [goods,  wares,  and 
merchandise].  .  .  .  When  the  whole  contract,  or  promise  of  the  defendant  is  to  do  a 
certain  thing,  and  this  is  an  absolute  promise,  resting  upon  a  consideration  which  has 
been  executed,  there  is  some  reasou  in  saying  that  the  memorandum  signed  by  lie- 
defendant  need  not  contain  the  consideration  or  inducement  of  the  contract  or  prom- 
ise. But  in  a  contract  executory  on  both  sides,  where  the  promises  are  mutual,  and 
each  is  the  consideration  of  the  other,  the  promises  are  conditional,  and  one  party 
agrees  to  perform  his  part  of  the  contract  only  on  condition  that  the  other  will  perform 
his  part,  and  it  cannot  be  known  what  the  promise  of  the  one  is  without  knowing  the 
express  or  implied  promise  of  the  other.  A  promise  to  convey  land  because  the 
promisee  has  actually  received  SI, 000  is  not  the  same  as  a  promise  to  convey  land  if 
the  promisor  will  pay  SI, 000  on  receiving  the  conveyance,  and  a  promise  to  convey 
land  for  S1.000  to  he  paid  on  the  delivery  of  the  deed  is  not  the  same  as  a  promise 
to  convey  land  for  $10,000  to  be  paid  on  the  delivery  of  the  deed.  The  conditions 
on  which  the  vendor  agrees  to  convey  are  often  many  anil  complicated,  and  involve 
the  assumption  of  mortgages  anil  the  performance  of  other  acts.  If  a  mere  acknowl- 
edgment in  writing  by  the  vendor  that  he  has  agreed  to  convey  specific  land  to  th  • 
vendee  on  terms  which  are  nut  expressed  is  sufficient  to  satisfy  the  Statute  of  Fraud-, 
then  it  is  upon  to  the  vendee  to  prove  by  oral  testimony  the  price  to  be  paid,  and  all 
the  other  terms  of  the  contract  to  lie  performed  by  him,  and  the  statute  will  no  longer 
prevent  frauds  and  perjuries.  If  it  is  a  condition  of  the  promise  of  the  vendor  that  it 
is  not  to  he  performed  unless  at  the  time  of  the  performance  the  vendee  pays  m 
and  gives  or  assumes  mortgages,  the  condition  qualifies  the  promise  and  is  a  part  of  it, 
and  the  writing  should  contain  all  that  is  essential  to  show  what  the  promise  or  con- 
tract on  the  pari  of  the  vendor  in  fact  was  The  decision  of  the  court  seems  to  n,e  in 
great  part  to  nullify  the  statute."  Compare  Drake  /-.  Seaman.  '.»7  X.  Y.  230;  Barney 
v.  Forbes,  lis  x.  v.  ;,so,  585. 

It  should  he  noticed  that  in  the  Massachusetts  statute  of  frauds,  and  in  the  ci  re- 
sponding statutes  of  must  other  States  in  which  it  is  provided  that  the  consideration 
need  nut   he  stated,  the  provision  dues  nut  necessarily  apply  to  the   section   in   regard 
to  the  sale  of  goods,  wares,  and  merchandise;   hut  in  New  Jersey,  at  least,  the   ■ 
vision  is  clearly  applicable  to  that  section. 


1000  BIRD   V.    MUNROE.  [CHAP.  VI. 

On  March  24,  1874,  the  parties,  then  in  New  York,  put  their  previous 
verbal  contract  into  writing,  antedating  it  as  an  original  contract  made 
at  Rockland  on  March  2,  1874.  On  the  same  day  (March  24),  by  con- 
sent of  the  defendant,  the  plaintiffs  sold  the  same  ice  to  another  party, 
reserving  their  claim  against  the  defendant  for  the  damages  sustained 
by  them  b}-  the  breach  of  the  contract  by  the  defendant  on  March  10th, 
or  about  that  time.  This  action  was  commenced  on  April  11,  1874, 
counting  on  the  contract  as  made  on  March  2,  and  declaring  for  dam- 
ages sustained  by  the  breach  of  contract  on  March  10,  or  thereabouts, 
and  prior  to  March  24,  1874.  Several  objections  are  set  up  against  the 
plaintiffs'  right  to  recover. 

The  first  objection  is,  that  in  some  respects  the  allegations  in  the  writ 
and  the  written  proof  do  not  concur.  But  we  pass  this  point,  as  any 
imperfection  in  the  wiit  may,  either  with  or  without  terms,  be  corrected 
by  amendment  hereafter. 

Then  it  is  claimed  for  the  defendant  that,  as  matter  of  fact,  the  parties 
intended  to  make  a  new  and  original  contract  as  of  March  24,  by  their 
writing  made  on  that  day  and  antedated  March  2,  and  that  it  was  not 
their  purpose  thereby  to  give  expression  and  efficacy  to  an}T  unwritten 
contract  made  by  them  before  that  time.  But  we  think  a  jury  would  be 
well  warranted  in  coming  to  a  different  conclusion.  Undoubtedly  there 
are  circumstances  tending  to  throw  some  doubt  upon  the  idea  that  both 
parties  understood  that  a  contract  was  fully  entered  into  on  March 
2,  1874,  but  that  doubt  is  much  more  than  overcome  when  all  the 
written  and  oral  evidence  is  considered  together.  We  think  the  writing 
made  on  the  24th  March,  with  the  explanations  as  to  its  origin,  is  to  be 
considered  preciselv  as  if  the  parties  on  that  day  had  signed  a  paper 
dated  of  that  date,  certifying  and  admitting  that  they  had  on  the  2d  day 
of  March  made  a  verbal  contract,  and  stating  in  exact  written  terms 
just  what  such  verbal  contract  was.  Parol  evidence  is  proper  to  show 
the  situation  of  the  parties  and  the  circumstances  under  which  the  con- 
tract was  made.  It  explains  but  does  not  alter  the  terms  of  the  contract. 
The  defendant  himself  invokes  it  to  show  that,  according  to  his  view, 
the  paper  bears  an  erroneous  date.  Such  evidence  merely  (Jiscloses  in 
this  case  such  facts  as  are  part  of  the  res  gestm.  Benjamin  on  Sales, 
§  213.     Stoops  v.  Smith,  100  Mass.  G3,  GG  ;  and  cases  there  cited. 

Then,  the  defendant  next  contends  that,  even  if  the  writing  signed  by 
the  parties  was  intended  by  them  to  operate  retroactively  as  of  the  first 
named  date,  as  a  matter  of  law,  it  cannot  be  permitted  to  have  that 
effect  and  meet  the  requirements  of  the  Statute  of  Frauds.  The  position 
of  the  defendant  is,  that  all  which  took  place  between  the  parties  before 
the  24th  of  March  was  of  the  nature  of  negotiation  and  proposition  only  ; 
and  that  there  was  no  valid  contract,  such  as  is  called  for  by  the  Statute 
of  Frauds,  before  that  day  ;  and  that  the  action  is  not  maintainable, 
because  the  breach  of  contract  is  alleged  to  have  occurred  before  that 
time.  The  plaintiffs,  on  the  other  hand,  contend  that  the  real  contract 
was  made  verbally  on  the  2d  of  March,  and  that  the  written  instrument 


SECT.  VII.]  BIRD   V.    MUNROE.  1001 

is  sufficient  proof  to  make  the  verbal  contract  a  valid  one  as  of  that  date 
(March  2),  although  the  written  proof  was  not  made  out  until  twenty- 
two  days  after  that  time.  Was  the  valid  contract,  therefore,  made  on 
March  2d  or  March  the  24th?  The  point  raised  is,  whether,  in  view  of 
the  Statute  of  Frauds,  the  writing  in  this  case  shall  be  considered  as 
constituting  the  contract  itself  or,  at  any  rate,  any  substantial  portion 
of  it,  or  whether  it  may  be  regarded  as  merely  the  necessary  legal  evi- 
dence by  means  of  which  the  prior  unwritten  contract  maj-  be  proved. 
In  other  words,  is  the  writing  the  contract,  or  only  evidence  of  it ;  we 
incline  to  the  latter  view.    . 

The  peculiar  wording  of  the  statute  presents  a  strong  argument  for 
such  a  determination.  The  section  reads  :  "  No  contract  for  the  sale  of 
any  goods,  wares,  or  merchandise,  for  thirty  dollars  or  more,  shall  be 
valid,  unless  the  purchaser  accepts  and  receives  part  of  the  goods,  or 
gives  something  in  earnest  to  bind  the  bargain,  or  in  part  payment 
thereof,  or  some  note  or  memorandum  thereof  is  made  and  signed  by 
the  party  to  be  charged  thereby,  or  his  agent."  In  the  first  place,  the 
statute  does  not  go  to  all  contracts  of  sale,  but  only  to  those  where  the 
price  is  over  a  certain  sum.  Then,  the  requirement  of  the  statute  is  in 
the  alternative.  The  contract  need  not  be  evidenced  by  writing  at  all, 
provided  "  the  purchaser  accepts  and  receives  a  part  of  the  goods,  or 
gives  something  in  earnest  to  bind  the  bargain  or  in  part  payment  there- 
of." If  an)-  one  of  these  circumstances  will  as  effectually  perfect  the 
sale  as  a  writing  would,  it  is  not  easily  seen  how  the  writing  can  actually 
constitute  the  contract,  merely  because  a  writing  happens  to  exist.  It 
could  not  with  anjT  correctness  be  said,  that  anything  given  in  earnest 
to  bind  a  bargain  was  a  substantial  part  of  the  bargain  itself,  or  an}"- 
thing  more  than  a  particular  mode  of  proof.  Then,  it  is  not  the  contract 
that  is  required  to  be  in  writing,  but  only  "  some  note  or  memorandum 
thereof."  This  language  supposes  that  the  verbal  bargain  may  be  first 
made,  and  a  memorandum  of  it  given  afterwards.  It  also  implies  that 
no  set  and  formal  agreement  is  called  for.  Chancellor  Kent  says  "  the 
instrument  is  liberally  construed  without  regard  to  forms."  The  briefest 
possible  forms  of  a  bargain  have  been  deemed  sufficient  in  many  cases. 
Certain  important  elements  of  a  completed  contract  may  be  omitted  alto- 
gether. For  instance,  in  this  State,  the  consideration  for  the  promise 
is  not  required  to  be  expressed  in  writing.  Gilligham  v.  Boardman, 
29  Maine,  79.  Again,  it  is  provided  that  the  note  or  memorandum  is 
sufficient,  if  signed  only  by  the  person  sought  to  be  charged.  One 
party  may  be  held  thereby  and  the  other  not  be.  There  may  be  a  mutu- 
ality of  contract  but  not  of  evidence  or  of  remedy.  Still,  if  the  writing 
is  to  be  regarded  in  all  cases  as  constituting  the  contract,  in  many  cases 
there  would  be  but  one  contracting  party. 

Another  idea  gives  weight  to  the  argument  for  the  position  advocated 
by  the  plaintiffs;  and  that  is,  that  such  a  construction  of  the  statute 
upholds  contracts  according  to  the  intention  of  parties  thereto,  while  it. 
at  the  same  time,  fully  subserves  all  the  purposes  for  which  the  statute 


1002  BIRD   V.    MUNROE.  [CHAP.  VI. 

was  created.  It  must  be  borne  in  mind  that  verbal  bargains  for  the  sale 
of  personal  property  are  good  at  common  law.  Nor'  are  the}'  made 
illegal  by  the  statute.  Parties  can  execute  them  if  they  mutually  please 
to  do  so.  The  object  of  the  statute  is  to  prevent  perjury  and  fraud.  Of 
course,  perjury  and  fraud  cannot  be  wholly  prevented  ;  but,  as  said  by 
Bigelow,  J.  (3  Gray,  331),  "a  memorandum  in  writing  will  be  as  effect- 
ual against  perjury,  although  signed  subsequently  to  the  making  of  a 
verbal  contract,  as  if  it  had  been  executed  at  the  moment  when  the 
parties  consummated  their  agreement  by  word  of  mouth."  We  think  it 
would  be  more  so.  A  person  would  be  likely  to  commit  himself  in 
writing  with  more  care  and  caution  after  time  to  take  a  second  thought. 
The  locus p>cnitentim  remains  to  him. 

By  no  means  are  we  to  be  understood  as  saying  that  all  written  instru- 
ments will  satisfy  the  statute,  by  having  the  effect  to  make  the  contracts 
described  in  them  valid  from  their  first  verbal  inception.  That  must 
depend  upon  circumstances.  In  many,  and,  perhaps,  most  instances 
such  a  version  of  the  transaction  would  not  agree  with  the  actual  under- 
standing of  the  parties.  In  many  cases,  undoubtedly,  the  written  instru- 
ment is  per  se  the  contract  of  the  parties.  In  many  cases,  as  for 
instance,  like  the  antedating  of  the  deed  in  Egery  v.  Woodard,  56 
Maine,  45,  cited  by  the  defendant,  the  contract  (by  deed)  could  not 
take  effect  before  delivery  ;  the  law  forbids  it.  So  a  will  made  by  parol 
is  absolutely  void.  But  all  these  classes  of  cases  differ  from  the  case 
before  us. 

A  distinction  is  attempted  to  be  set  up  between  the  meaning  to  be 
given  to  R.  S.  c.  Ill,  §  4,  where  it  is  provided  that  no  unwritten  contract 
for  the  sale  of  goods  "  shall  be  valid,"  and  that  to  be  given  to  the  sev- 
eral preceding  sections  where  it  is  provided  that  upon  certain  other  kinds 
of  unwritten  contracts  "  no  action  shall  be  maintained  ; "  the  position 
taken  being  that  in  the  former  case  the  contract  is  void,  and  in  the  other 
cases  only  voidable  perhaps,  or  not  enforceable  by  suit  at  law.  But  the 
distinction  is  without  any  essential  difference,  and  is  now  so  regarded 
by  authors  generally  and  in  most  of  the  decided  cases.  All  the  sections 
referred  to  rest  upon  precisely  the  same  policy.  Exactby  the  same 
object  is  aimed  at  in  all.  The  difference  of  phraseology  in  the  different 
sections  of  the  original  English  statute,  of  which  ours  is  a  substantial 
copy,  may  perhaps  be  accounted  for  by  the  fact,  as  is  generally  con- 
ceded, that  the  authorship  of  the  statute  was  the  work  of  different 
hands.  Although  our  statute  (R.  S.  1871,  §4)  uses  the  words  "no 
contract  shall  be  valid,"  our  previous  statute  used  the  phrase  "  shall  be 
allowed  to  be  good  ; "  and  the  change  was  made  when  the  statutes  were 
revised  in  1857,  without  any  legislative  intent  to  make  an  alteration  in 
the  sense  of  the  section.  (R  S.  1841,  c.  136,  §  4.)  The  two  sets  of 
phrases  were  undoubtedly  deemed  to  be  equivalent  expressions.  The 
words  of  the  original  English  section  are  "  shall  not  be  allowed  to  be 
good,"  moaning,  it  is  said,  not  good  for  the  purpose  of  sustaining  an 
action  thereon  without  written  proof.     Browne,  St.  Frauds,  §§  115,  136, 


SECT.  VII.]  BIRD   V.    MUNROE.  1003 

and  notes  to  the  sections  ;  Benjamin's  Sales,  §  114;  Townsend  v.  Ilar- 
graves,  118  Mass.  325  ;  and  cases  there  cited. 

There  are  lew  decisions  that  bear  directly  upon  the  precise  point 
which  this  case  presents  to  us.  From  the  nature  of  things,  a  state  of 
facts  involving  the  question  would  seldom  exist.  But  we  regard  the 
case  of  Townsend  v.  Hargraves,  above  cited,  as  representing  the  prin- 
ciple very  pointedly.  It  was  there  held  that  the  Statute  of  Frauds 
affects  the  remedy  only  and  not  the  validity  of  the  contract ;  and  that 
where  there  has  been  a  completed  oral  contract  of  sale  of  goods,  the 
acceptance  and  receipt  of  part  of  the  goods  by  the  purchaser  takes  the 
case  out  of  the  statute,  although  such  acceptance  and  receipt  are  after 
the  rest  of  the  goods  are  destroyed  by  fire  while  in  the  hands  of  the 
seller  or  his  agent.  The  date  of  the  agreement  rather  than  the  date  of 
the  part  acceptance  was  treated  as  the  time  when  the  contract  was  made  ; 
and  the  risk  of  the  loss  of  the  goods  was  cast  upon  the  buyer.  Vin- 
cent v.  Germond,  11  Johns.  283,  is  to  the  same  effect.  We  are  not 
aware  of  an}'  case  where  the  question  has  been  directly  adjudicated  ad- 
versely to  these  cases.  Webster  v.  Zielly,  52  Barb.  (N.  Y.)  482,  in  the 
argument  of  the  court,  directly  admits  the  same  principle.  The  case  of 
Leather  Cloth  Co.  v.  Hieronimus,  L.  R.  10  Q.  B.  140,  seems  also  to  be 
an  authority  directly  in  point.  Thompson  v.  Aiger,  12  Met.  428,  435, 
and  Marsh  v.  Hyde,  3  Gray,  331,  relied  on  by  defendant,  do  not,  in 
their  results,  oppose  the  idea  of  the  above  cases,  although  there  may  be 
some  expressions  in  them  inconsistent  therewith.  Altogether  another 
question  was  before  the  court  in  the  latter  cases. 

But  there  are  a  great  many  cases  where,  in  construing  the  Statute  of 
Frauds,  the  force  and  effect  of  the  decisions  go  to  sustain  the  view  we 
take  of  this  question,  by  the  very  strongest  implication,  —  such  as  :  That 
the  statute  does  not  apply  where  the  contract  has  been  executed  on  both 
sides;  Bucknam  v.  Nash,  12  Maine,  474.  That  no  person  can  take 
advantage  of  the  statute  but  the  parties  to  the  contract,  and  their  privies  ; 
Cowan  v.  Adams,  10  Maine,  374.  That  the  memorandum  may  be  made 
by  a  broker;  Hinckley  v.  Arey,  27  Maine,  362.  Or  by  an  auctioneer; 
Cleaves  v.  Foss,  4  Maine,  1.  That  a  sale  of  personal  property  is  valid 
when  there  has  been  a  delivery  and  acceptance  of  part,  although  the 
part  be  accepted  several  hours  after  the  sale  ;  Davis  v.  Moore,  13  Maine, 
424.  Or  several  days  after  ;  Bush  v.  Holmes,  53  Maine,  417.  Or  ever 
so  long  after;  Browne  St.  Frauds,  §  337,  and  cases  there  noted.  That 
a  creditor,  receiving  payments  from  his  debtor  without  any  direction  as 
to  their  application,  may  apply  them  to  a  debt  on  which  the  Statute  of 
Frauds  does  not  allow  an  action  to  be  maintained  ;  Haynes  v.  Nice,  100 
Mass.  327.  That  a  contract  made  in  France,  and  valid  there  without  a 
writing,  could  not  be  enforced  in  England  without  one,  upon  the  ground 
that  the  statute  related  to  the  mode  of  procedure  and  not  to  the  validity 
of  the  contract;  Leroux  v.  Brown,  12  C.  B.  801  ;  but  this  case  has  been 
questioned  somewhat.  That  a  witness  may  be  guilty  of  perjury  who 
falsely  swears  to  a  fact  which  may  not  be  competent  evidence  by  the 


1004  BIRD   V.    MUNROE.  [CHAP.  VI. 

Statute  of  Frauds,  but  which  becomes  material  because  not  objected  to 
by  the  party  against  whom  it  was  offered  and  received  ;  Howard  v. 
Sexton,  4  Comstock,  157.  That  an  agent  who  signs  a  memorandum 
need  not  have  his  authority  at  the  time  the  contract  is  entered  into,  if 
his  act  is  orally  ratified  afterwards  ;  Maclean  v.  Dunn,  4  Bing.  722. 
That  the  identical  agreement  need  not  be  signed,  and  that  it  is  sufficient 
if  it  is  acknowledged  by  any  other  instrument  duly  signed  ;  Gale  v. 
Nixon,  6  Cow.  445.  That  the  recognition  of  the  contract  may  be  con- 
tained in  a  letter,  or  in  several  letters,  if  so  connected  by  "  written 
links"  as  to  form  sufficient  evidence  of  the  contract.  That  the  letters 
may  be  addressed  to  a  third  person  ;  Browne,  St.  Frauds,  §  346  ;  Fyson 
v.  Kitton,  30  E.  L.  &  Eq.  374;  Gibson  v.  Holland,  L.  R.  1  C.  P.  1. 
That  an  agent  may  write  his  own  name  instead  of  that  of  his  principal 
if  intending  to  bind  his  principal  by  it;  Williams  v.  Bacon,  2  Gray,  387, 
393,  and  citations  there.  That  a  proposal  in  writing,  if  accepted  by  the 
other  party  by  parol,  is  a  sufficient  memorandum  ;  Reuss  v.  Picksley, 
L.  R.  1  Exc.  342.  That  where  one  party  is  bound  by  a  note  or  memo- 
randum the  other  party  may  be  bound  if  he  admits  the  writing  by 
another  writing  by  him  subsequently  signed  ;  Dobelle  v.  Hutchinson,  3 
A.  &  E.  355.  That  the  written  contract  may  be  rescinded  by  parol, 
although  many  decisions  are  opposed  to  this  proposition  ;  Richardson  v. 
Cooper,  25  Maine,  450.  That  equity  will  interfere  to  prevent  a  party 
making  the  statute  an  instrument  of  fraud  ;  Ryan  v.  Dox,  34  N.  Y.  307  ; 
Hassam  v.  Barrett,  115  Mass.  256,  258.  That  a  contract  verbally  made 
may  be  maintained  for  certain  purposes,  notwithstanding  the  statute. 
That  a  person  who  pays  his  money  under  it  cannot  recover  it  back  if  the 
other  side  is  willing  to  perform  ;  and  he  can  recover  if  performance  is 
refused ;  Chapman  v.  Rich,  63  Maine,  588,  and  cases  cited.  That  a 
respondent  in  equity  waives  the  statute  as  a  defence  unless  set  up  in 
plea  or  answer;  Adams  v.  Patrick,  30  Vt.  516.  That  it  must  be  speci- 
ally pleaded  in  an  action  at  law  ;  Middlesex  Co.  v.  Osgood,  4  Gray,  447  ; 
Lawrence  v.  Chase,  54  Maine,  196.  That  the  defendant  may  waive  the 
protection  of  the  statute  and  admit  verbal  evidence  and  become  bound 
by  it;  Browne,  St.  Frauds,  §  135. 

It  may  be  remarked,  however,  that  in  most  courts  a  defendant  may 
avail  himself  of  a  defence  of  the  statute  under  the  general  issue.  The 
different  rule  in  Massachusetts  and  Maine  grew  out  of  the  Practice  Act 
in  the  one  State  and  in  the  statute  requiring  the  filing  of  specifications 
in  the  other. 

It  is  clear  from  the  foregoing  cases,  as  well  as  from  many  more  that 
might  be  cited,  that  the  statute  does  not  forbid  parol  contracts,  but  only 
precludes  the  bringing  of  actions  to  enforce  them.  As  said  in  Thornton 
v.  Kcmpster,  5  Taunt.  786,  788,  "  the  Statute  of  Frauds  throws  a  diffi- 
cult}' in  the  way  of  the  evidence."  In  a  case  already  cited,  Jervis,  C.  J., 
said,  '•  The  effect  of  the  section  is  not  to  avoid  the  contract,  but  to  bar 
the  remedy  upon  it,  unless  there  be  writing."  See  analogous  case  of 
McLellan  v.  McLellan,  65  Maine,  500. 


SECT.  VII.]  BILID   V.    MUNROE.  10G5 

But  the  defendant  contends  that  this  course  of  reasoning  would  make 
a  memorandum  sufficient  if  made  after  action  brought,  and  that  the 
authorities  do  not  agree  to  that  proposition.  There  has  been  some  judi- 
cial inclination  to  favor  the  doctrine  to  that  extent  even,  and  there  may 
be  some  logic  in  it.  Still  the  current  of  decision  requires  that  the  writ- 
ing must  exist  before  action  brought.  And  the  reason  lor  the  require- 
ment does  not  militate  against  the  idea  that  a  memorandum  is  only 
evidence  of  the  contract.  There  is  no  actionable  contract  before  memo- 
randum obtained.  The  contract  cannot  be  sued  until  it  has  been  legally 
verified  by  writing  ;  until  then  there  is  no  cause  of  action,  although 
there  is  a  contract.  The  writing  is  a  condition  precedent  to  the  light  to 
sue.  Willes,  J.,  perhaps  correctly  describes  it  in  Gibson  v.  Holland, 
supra,  when  he  says,  "  the  memorandum  is  in  some  way  to  stand  in  the 
place  of  a  contract."  He  adds:  "  The  courts  have  considered  the  in- 
tention of  the  legislature  to  be  of  a  mixed  character  ;  to  prevent  persons 
from  having  actions  brought  against  them  so  long  as  no  written  evidence 
was  existing  when  the  action  was  instituted."  Browne,  St.  Frauds, 
§  338  ;  Benjamin's  Sales,  §  159  ;  Fricker  v.  Thomlinsen,  1  Man.  &  Gr. 
772  ;  Bradford  v.  Spyker,  32  Ala.  134  ;  Bill  v.  Bament,  9  M.  &  W.  36  ; 
Philbrook  v.  Belknap,  G  Vt.  383.  In  the  last  case  it  is  said,  "  strictly 
speaking,  the  statute  does  not  make  the  contract  void,  except  for  the 
purpose  of  sustaining  an  action  upon  it,  to  enforce  it." 

Action  to  stand  for  trial. 

Appleton,  C.  J.,  Walton,  Danforth,  Virgin,  and  Libbey,  JJ., 
concurred. 


APPENDIX. 


SALE  OF  GOODS  ACT. 

An  Act  for  codifying  the  Law  relating  to  the  Sale  of  Goods. 

(Chapter  71  o/56  #•  57  Victoria,  February,  20,  1894.) 


PART   I. 

FORMATION   OF  THE  CONTRACT. 

Contract  of  Sale. 

1.  —  (1.)  A  contract  of  sale  of  goods  is  a  contract  whereby  the  seller  transfers  or 
agrees  to  transfer  the  property  in  goods  to  the  buyer  for  a  money  consideration, 
called  the  price.  There  may  be  a  contract  of  sale  between  one  part-owner  and 
another. 

(2.)    A  contract  of  sale  may  be  absolute  or  conditional. 

(■3.)  Where  under  a  contract  of  sale  the  property  in  the  goods  is  transferred  from 
the  seller  to  the  buyer  the  contract  is  called  a  sale  ;  but  where  the  transfer  of  the 
property  in  the  goods  is  to  take  place  at  a  future  time  or  subject  to  some  condition 
thereafter  to  be  fulfilled,  the  contract  is  called  an  agreement  to  sell. 

(4.)  An  agreement  to  sell  becomes  a  sale  when  the  time  elapses  or  the  conditions 
are  fulfilled  subject  to  which  the  property  in  the  goods  is  to  be  transferred. 

2.  Capacity  to  buy  and  sell  is  regulated  by  the  general  law  concerning  capacity  to 
contract,  and  to  transfer  and  acquire  property. 

Provided  that  where  necessaries  are  sold  and  delivered  to  an  infant,  or  minor,  or  to 
a  person  who  by  reason  of  mental  incapacity  or  drunkenness  is  incompetent  to  con- 
tract, he  must  pay  a  reasonable  price  therefor. 

Necessaries  in  this  section  mean  goods  suitable  to  the  condition  in  life  of  such  infant 
or  minor  or  other  person,  and  to  his  actual  requirements  at  the  time  of  the  sale  and 
delivery. 

Formalities  of  the  Contract. 

3.  Subject  to  the  provisions  of  this  Act  and  of  any  statute  in  that  behalf,  a  con- 
tract of  sale  may  be  made  in  writing  (either  with  or  without  seal),  or  by  word  of 
mouth,  or  partly  in  writing  and  partly  by  word  of  mouth,  or  may  be  implied  from  the 
conduct  of  the  parties. 

Provided  that  nothing  in  this  section  shall  affect  the  law  relating  to  corporations. 

4.  —  (1.)  A  contract  for  the  sale  of  any  goods  of  the  value  of  ten  pounds  or  up- 
wards shall  not  be  enforceable  by  action  unless  the  buyer  shall  accept  part  of  the 
goods  so  sold,  and  actually  receive  the  same,  or  give  something  in  earnest  to  bind  the 
contract,  or  in  part  payment,  or  unless  some  note  or  memorandum  in  writing  of 


1008  APPENDIX. 

the  contract  be  made  and  signed  by  the  party  to  be  charged  or  his  agent  in  that 
behalf. 

(2.)  The  provisions  of  this  sectiou  apply  to  every  such  contract,  notwithstanding 
that  the  goods  may  be  intended  to  be  delivered  at  some  future  time,  or  may  not  at  the 
time  of  such  contract  be  actually  made,  procured,  or  provided,  or  fit  or  ready  for 
delivery,  or  some  act  may  be  requisite  for  the  making  or  completing  thereof,  or  l'en- 
dering  the  same  fit  for  delivery. 

(3.)  There  is  an  acceptance  of  goods  within  the  meaning  of  this  section  when  the 
buyer  does  any  act  in  relation  to  the  goods  which  recognizes  a  pre-existing  contract 
of  sale  whether  there  be  an  acceptance  in  performance  of  the  contract  or  not. 

(4.)   The  provisions  of  this  section  do  not  apply  to  Scotland. 

Subject-Mattek  of  Contract. 

5.  —  (l.)  The  goods  which  form  the  subject  of  a  contract  of  sale  maybe  either 
existing  goods,  owned  or  possessed  by  the  seller,  or  goods  to  be  manufactured  or  ac- 
quired by  the  seller  after  the  making  of  the  contract  of  sale,  in  this  Act  called 
"  future  goods." 

(2.)  There  may  be  a  contract  for  the  sale  of  goods,  the  acquisition  of  which  by  the 
seller  depends  upon  a  contingency  which  may  or  may  not  happen. 

(3.)  Where  by  a  contract  of  sale  the  seller  purports  to  effect  a  present  sale  of 
future  goods,  the  contract  operates  as  an  agreement  to  sell  the  goods. 

6.  Where  there  is  a  contract  for  the  sale  of  specific  goods,  and  the  goods  without 
the  knowledge  of  the  seller  have  perished  at  the  time  when  the  contract  is  made,  the 
contract  is  void. 

7.  Where  theie  is  an  agreement  to  sell  specific  goods,  and  subsequently  the  goods, 
without  any  fault  on  the  part  of  the  seller  or  buyer,  perish  before  the  risk  passes  to 
the  buyer,  the  agreement  is  thereby  avoided. 

The  Price. 

8.  —  (l.)  The  price  in  a  contract  of  sale  may  be  fixed  by  the  contract,  or  may  be 
left  to  be  fixed  in  manner  thereby  agreed,  or  may  be  determined  by  the  course  of 
dealing  between  the  parties. 

(2.)  Where  the  price  is  not  determined  in  accordance  with  the  foregoing  provisions 
the  buyer  must  pay  a  reasonable  price.  What  is  a  reasonable  price  is  a  question  of 
fact  dependent  on  the  circumstances  of  each  particular  case. 

9.  —  (i.)  Where  there  is  an  agreement  to  sell  goods  on  the  terms  that  the  price  is 
to  be  fixed  by  the  valuation  of  a  third  party,  and  such  third  party  cannot  or  does  not 
make  such  valuation,  the  agreement  is  avoided  ;  provided  that  if  the  goods  or  any 
part  thereof  have  been  delivered  to  and  appropriated  by  the  buyer  he  must  pay  a 
reasonable  price   therefor. 

(2.)  Where  such  third  party  is  prevented  from  making  the  valuation  by  the  fault  of 
the  seller  or  buyer,  the  party  not  in  fault  may  maintain  an  action  for  damages  against 
the  party  in  fault. 

Conditions  and  Warranties. 

10.  — (1.)  Unless  a  different  intention  appears  from  the  terms  of  the  contract, 
stipulations  as  to  time  of  payment  are  not  deemed  to  be  of  the  essence  of  a  contract 
of  sale.  Whether  any  other  stipulation  as  to  time  is  of  the  essence  of  the  contract  or 
not  depends  on  the  terms  of  the  contract. 

(2.)    In  a  contract  of  sale  "  month  "  means  prima  facie  calendar  month. 

11.  —  (1.)    In  England  or  Ireland  — 

(a.)    Where  a  contract  of  sale  is  subject  to  any  condition  to  be  fufilled  by  the  seller 
the  buyer  may  waive  the  condition,  or  may  elect  to  treat  the  breach  of  such  con- 


APPENDIX.  1009 

dition  as  a  breach  of  warranty,  and  not  as  a  ground  for  treating  the  contract  as 
repudiated. 
(b.)    Whether  a  stipulation  in  a  contract  of  sale  is  a  condition,  the  breach  of  which 
may  give  rise  to  a  right  to  treat  the  contract  as  repudiated,  or  a  warranty,  the 
breach  of  which  may  give  rise  to  a  claim  for  damages  but  not  to  a  right  to  re- 
ject the  goods  and  treat  the  contract  as  repudiated,  depends  in  each  case  on  the 
construction  of  the  contract.     A  stipulation  may  be  a  condition,  though  called  a 
warranty  in  the  contract, 
(c.)    Where  a  contract  of  sale  is  not  severable,  and  the  buyer   has  accepted  the 
goods,  or  part  thereof,  or  where  the  contract  is  for  specific  goods,  the  property 
in  which  has  passed  to  the  buyer,  the  breach  of  any  condition  to  be  fulfilled  by 
the  seller  can  only  be  treated  as  a  breach  of  warranty,  and  not  as  a  ground  for 
rejecting  the  goods  and  treating  the  contract  as  repudiated,  unless  there  be  a 
term  of  the  contract,  express  or  implied,  to  that  effect. 
(2.)   In  Scotland,  failure  by  the  seller  to  perform  any  material  part  of  a  contract  of 
sale  is  a  breach  of  contract,  which  entitles  the  buyer  either  within  a  reasonable  time 
after  delivery  to  reject  the  goods  and  treat  the  contract  as  repudiated,  or  to  retain  the 
goods  and  treat  the  failure  to  perform  such  material  part  as  a  breach  which  may  give 
rise  to  a  claim  for  compensation  or  damages. 

(.3.)  Nothing  in  this  section  shall  affect  the  case  of  any  condition  or  warranty,  ful- 
filment of  which  is  excused  by  law  by  reason  of  impossibility  or  otherwise. 

12.  In  a  contract  of  sale,  unless  the  circumstances  of  the  contract  are  such  as  to 
show  a  different  intention,  there  is  — 

(1.)  An  implied  condition  on  the  part  of  the  seller  that  in  the  case  of  a  sale  he  has 
a  right  to  sell  the  goods,  and  that  in  the  case  of  an  agreement  to  sell  he  will 
have  a  right  to  sell  the  goods  at  the  time  when  the  property  is  to  pass  : 

(2.)  An  implied  warranty  that  the  buyer  shall  have  and  enjoy  quiet  possession  of 
the  goods : 

(3.)  An  implied  warranty  that  the  goods  shall  be  free  from  any  charge  or  encum- 
brance in  favor  of  any  third  party,  not  declared  or  known  to  the  buyer  before  or 
at  the  time  when  the  contract  is  made. 

13.  Where  there  is  a  contract  for  the  sale  of  goods  by  description,  there  is  an  im- 
plied condition  that  the  goods  shall  correspond  with  the  description ;  and  if  the  sale 
be  by  sample,  as  well  as  by  description,  it  is  not  sufficient  that  the  bulk  of  the  goods 
corresponds  with  the  sample  if  the  goods  do  not  also  correspond  with  the  description. 

14.  Subject  to  the  provisions  of  this  Act  and  of  any  statute  in  that  behalf,  there  is 
no  implied  warranty  or  condition  as  to  the  quality  or  fitness  for  any  particular  pur- 
pose of  goods  supplied  under  a  contract  of  sale,  except  as  follows :  — 

(1.)  Where  the  buyer,  expressly  or  by  implication,  makes  known  to  the  seller  the 
particular  purpose  for  which  the  goods  are  required,  so  as  to  show  that  the 
buyer  relies  on  the  seller's  skill  or  judgment,  and  the  goods  are  of  a  description 
which  it  is  in  the  course  of  the  seller's  business  to  supply  (whether  he  be  the 
manufacturer  or  not),  there  is  an  implied  condition  that  the  goods  shall  be 
reasonably  fit  for  such  purpose,  provided  that  in  the  case  of  a  contract  for  the 
sale  of  a  specified  article  under  its  patent  or  other  trade  name,  there  is  no  im- 
plied condition  as  to  its  fitness  for  any  particular  purpose  : 

(2.)  Where  goods  are  bought  by  description  from  a  seller  who  deals  in  goods  of 
that  description  (whether  he  be  the  manufacturer  or  not),  there  is  an  implied 
condition  that  the  goods  shall  be  of  merchantable  quality;  provided  that  if  the 
buyer  has  examined  the  goods,  there  shall  be  no  implied  condition  as  regards 
defects  which  such  examination  ought  to  have  revealed  ■ 

(3.)  An  implied  warranty  or  condition  as  to  quality  or  fitness  for  a  particular  pur- 
pose may  be  annexed  by  the  usage  of  trade : 

(4.)  An  express  warranty  or  condition  does  not  negative  a  warranty  or  condition 
implied  by  this  Act  unless  inconsistent  therewith. 

64 


1010  APPENDIX. 


Sale  by  Sample. 

15. (i.)   A  contract  of  sale  is  a  contract  for  sale  by  sample  where  there  is  a  terra 

in  the  contract,  express  or  implied,  to  that  effect. 
(2.)    In  the  case  of  a  contract  for  sale  by  sample  — 
(a.)   There   is  an  implied   condition  that  the   bulk   shall   correspond   with  the 

sample  in  quality  : 
(b.)    There  is  an  implied  condition  that  the  buyer  shall  have  a  reasonable  oppor- 
tunity of  comparing  the  bulk  with  the  sample  : 
(c.)   There  is  an  implied  condition  that  the  goods  shall  be  free  from  any  defect, 
rendering  them  unmerchantable,  which  would  not  be  apparent  on  reasonable 
examination  of  the  sample. 


PAKT   II. 

EFFECTS  OF   THE  CONTRACT. 

Transfer  of  Propertt  as  between  Seller  and  Buyer. 

16.  Where  there  is  a  contract  for  the  sale  of  unascertained  goods  no  property  in 
the  goods  is  transferred  to  the  buyer  unless  and  until  the  goods  are  ascertained. 

17. (i.)   Where  there  is  a  contract  for  the  sale  of  specific  or  ascertained  goods 

the  property  in  them  is  transferred  to  the  buyer  at  such  time  as  the  parties  to  the  con- 
tract intend  it  to  be  transferred. 

(2.)  For  the  purpose  of  ascertaining  the  intention  of  the  parties  regard  shall  be  had 
to  the  terms  of  the  contract,  the  conduct  of  the  parties,  and  the  circumstances  of  the 
case. 

18.  Unless-  a  different  intention  appears,  the  following  are  rules  for  ascertaining 
the  intention  of  the  parties  as  to  the  time  at  which  the  property  in  the  goods  is  to 
pass  to  the  buyer. 

Rule  i . Where  there  is  an  unconditional  contract  for  the  sale  of  specific  goods,  in 

a  deliverable  state,  the  property  in  the  goods  passes  to  the  buyer  when  the  con- 
tract is  made,  and  it  is  immaterial  whether  the  time  of  payment  or  the  time  of 
delivery,  or  both,  be  postponed. 

Rule  2.  —  Where  there  is  a  contract  for  the  sale  of  specific  goods  and  the  seller  is 
bound  to  do  something  to  the  goods,  for  the  purpose  of  putting  them  into  a 
deliverable  state,  the  property  does  not  pass  until  such  thing  be  done,  and  the 
buyer  has  notice  thereof. 

Rule  3.  —  Where  there  is  a  contract  for  the  sale  of  specific  goods  in  a  deliverable 
state,  but  the  seller  is  bound  to  weigh,  measure,  test,  or  do  some  other  act  or 
thing  with  reference  to  the  goods  for  the  purpose  of  ascertaining  the  price,  the 
property  does  not  pass  until  such  act  or  thing  be  done,  and  the  buyer  has  notice 

thereof. 
Rule  4.  _  When  goods  are  delivered  to  the  buyer  on  approval  or  "  on  sale  or  re- 
turn "  or  other  similar  terms  the  property  therein  passes  to  the  buyer  :  — 

(a.)    When  he  signifies  his  approval  or  acceptance  to  the  seller  or  does  any 

other  act  adopting  the  transaction  : 
(!>.)    If  he  does  not  signify  his  approval  or  acceptance  to  the  seller  but  retains 

the  g Is  without  giving  notice  of  rejection,  then,  if  a  time  has  been  fixed 

for  the  return  of  the  goods,  on  the  expiration  of  such  time,  and,  if  no  time 


A1TEXDIX. 


1011 


has  been  fixed,  on  the  expiration  of  a  reasonable  time.     What  is  a  reason- 
able time  is  a  question  of  fact. 
Rule  5.  —  (i.)    Where  there  is  a  contract  for  the  sale  of  unascertained  <<r  future 
goods  by  description,  and  goods  of  that  description  and  in  a  deliverable  stab 
unconditionally  appropriated  to  the  contract,  either  by  the  seller  with  the  as 
of  the  buyer,  or  by  the  buyer  with  the  assent  of  the  seller,  the  property  in  the 
goods  thereupon  passes  to  the  buyer.     Such  assent  may  be  express  or  implied, 
and  may  be  given  either  before  or  after  the  appropriation  is  made: 
(2.)    Where,  in   pursuance   of  the  contract,  the   seller  delivers   the  goods  to  the 
buyer  or  to  a  carrier  or  other  bailee  or  custodier  (whether  named  by  the  buyer 
or  not)  for  the  purpose  of  transmission  to  the  buyer,  and   does  not  reserve  the 
right  of  disposal,  he  is  deemed  to  have   unconditionally  appropriated  the  g 
to  the  contract. 

19.  —  (l.)  Where  there  is  a  contract  for  the  sale  of  specific  goods  or  where  goodr 
are  subsequently  appropriated  to  the  contract,  the  seller  may,  by  the  terms  of  the 
contract  or  appropriation,  reserve  the  right  of  disposal  of  the  goods  until  certain  con- 
ditions are  fulfilled.  In  such  case,  notwithstanding  the  delivery  of  the  goods  to  the 
buyer,  or  to  a  carrier  or  other  bailee  or  custodier  for  the  purpose  of  transmission  to 
the  buyer,  the  property  in  the  goods  does  not  pass  to  the  buyer  until  the  conditions 
imposed  by  the  seller  are  fulfilled 

(2.)  Where  goods  are  shipped,  and  by  the  bill  of  lading  the  goods  are  deliverable 
to  the  order  of  the  seller  or  his  agent,  the  seller  is  prima  facie  deemed  to  reserve  the 
right  of  disposal. 

(3.)  Where  the  seller  of  goods  draws  on  the  buyer  for  the  price,  and  transmits  the 
bill  of  exchange  and  bill  of  lading  to  the  buyer  together  to  secure  acceptance  or  pay- 
ment of  the  bill  of  exchange,  the  buyer  is  bound  to  return  the  bill  of  lading  if  he  does 
not  honor  the  bill  of  exchange,  and  if  he  wrongfully  retains  the  bill  of  lading  the 
property  in  the  goods  does  not  pass  to  him. 

20  Unless  otherwise  agreed,  the  goods  remain  at  the  seller's  risk  until  the  prop- 
erty therein  is  transferred  to  the  buyer,  but  when  the  property  therein  is  transferred 
to  the  buyer,  the  goods  are  at  the  buyer's  risk  whether  delivery  has  been  made  or  not. 

Provided  that  where  delivery  has  been  delayed  through  the  fault  of  either  buyer 
or  seller  the  goods  are  at  the  risk  of  the  party  in  fault  as  regards  any  loss  which 
might  not  have  occurred  but  for  such  fault. 

Provided  also  that  nothing  in  this  section  shall  affect  the  duties  or  liabilities  of 
either  seller  or  buyer  as  a  bailee  or  custodier  of  the  goods  of  the  other  party. 

Transfer  of  Title. 

21  —  (1.)  Subject  to  the  provisions  of  this  Act,  where  goods  are  sob!  by  a  person 
who  is  not  the  owner  thereof,  and  who  does  not  sell  them  under  the  authority  or  with 
the  consent  of  the  owner,  the  buyer  acquires  no  better  title  to  the  goods  than  the 
seller  had,  unless  the  owner  of  the  goods  is  by  his  conduct  precluded  from  denying  the 
seller's  authority  to  sell. 

(2.)    Provided  also  that  nothing  in  this  Act  shall  affect  — 

(a.)   The  provisions  of  the  Factors  Acts,  or  any  enactment  enabling  the  apparent 

owner  of  goods  to  dispose  of  them  as  if  he  were  the  true  owner  thereof; 
(6.)    The  validity  of  any  contract  of  sale  under  any  special  common  law  or  statutory 

power  of  sale  or  under  the  order  of  a  court  of  competent  jurisdiction. 

22  — (1.)  Whore  goods  are  sold  in  market  overt,  according  to  the  usage  of  the 
market,  the  buyer  acquires  a  good  title  to  the  goods,  provided  he  buys  them  iu  good 
faith  and  without  notice  of  any  defect  or  want  of  title  on  the  part  of  the  seller 

(2  )    Nothing  in  this  section  shall  affect  the  law  relating  to  the  sale  of  | 
(3  )    The  provisions  of  this  section  do  not  apply  to  Scotland 

23.    When  the  seller  of  goods  has  a  voidable  title  thereto,  but  his  title  has  not  beeu 


1012  APFENDIX. 

avoided  at  the  time  of  the  sale,  the  buyer  acquires  a  good  title  to  the  goods,  provided 
he  buys  them  iu  good  faith  aud  without  notice  of  the  seller's  defect  of  title 

24  (l.)  Where  goods  have  been  stolen  and  the  offender  is  prosecuted  to  convic- 
tion, the  property  in  the  goods  so  stolen  revests  in  the  person  who  was  the  owner  of 
the  goods,  or  his  personal  representative,  notwithstanding  any  intermediate  dealing 
with  them,  whether  by  sale  in  market  overt  or  otherwise. 

(2.)  Motwithstandiug  any  enactment  to  the  contrary,  where  goods  have  been  ob- 
tained bv  fraud  or  other  wrongful  means  not  amounting  to  larceny,  the  property  in 
>uch  goods  shall  not  revest  in  the  person  who  was  the  owner  of  the  goods,  or  his  per- 
s<  mal  representative,  by  reason  only  of  the  conviction  of  the  offender. 

(3.)    The  provisions  of  this  section  do  not  apply  to  Scotland. 

25  —  (1.)  Where  a  person  having  sold  goods  continues  or  is  in  possession  of  the 
goods,  or  of  the  documents  of  title  to  the  goods,  the  delivery  or  transfer  by  that 
person,  or  by  a  mercantile  agent  acting  for  him,  of  the  goods  or  documents  of  title 
under  any  sale,  pledge,  or  other  disposition  thereof,  to  any  person  receiving  the  same 
in  good  faith  and  without  notice  of  the  previous  sale,  shall  have  the  same  effect  as  if 
the  person  making  the  delivery  or  transfer  were  expressly  authorized  by  the  owner 
of  the  goods  to  make  the  same. 

(2.)  Where  a  person  having  bought  or  agreed  to  buy  goods  obtains,  with  the  con- 
sent of  the  seller,  possession  of  the  goods  or  the  documents  of  title  to  the  goods,  the 
delivery  or  transfer  by  that  person,  or  by  a  mercantile  agent  acting  for  him,  of  the 
goods  or  documents  of  title,  under  any  sale,  pledge,  or  other  disposition  thereof,  to 
any  person  receiving  the  same  in  good  faith  and  without  notice  of  any  lien  or  other 
right  of  the  original  seller  in  respect  of  the  goods,  shall  have  the  same  effect  as  if  the 
person  making  the  delivery  or  transfer  were  a  mercantile  agent  in  possession  of  the 
goods  or  documents  of  title  with  the  consent  of  the  owner. 

(3.)  In  this  section  the  term  "  mercantile  agent  "  has  the  same  meaning  as  in  the 
Factors  Acts 

26  —(1.)  A  writ  of  fieri  facias  or  other  writ  of  execution  against  goods  shall 
bind  the  property  in  the  goods  of  the  execution  debtor  as  from  the  time  when  the  writ 
is  delivered  to  the  sheriff  to  be  executed;  and,  for  the  better  manifestation  of  such 
time,  it  shall  be  the  duty  of  the  sheriff,  without  fee,  upon  the  receipt  of  any  such  writ 
to  indorse  upon  the  back  thereof  the  hour,  day,  month,  and  year  when  he  received  the 
same 

Provided  that  no  such  writ  shall  prejudice  the  title  to  such  goods  acquired  by  any 
person  in  good  faith  and  for  valuable  consideration,  unless  such  person  had  at  the 
time  when  he  acquired  his  title  notice  that  such  writ  or  any  other  writ  by  virtue  of 
which  the  goods  of  the  execution  debtor  might  be  seized  or  attached  had  been  de- 
livered to  and  remained  unexecuted  in  the  hands  of  the  sheriff. 

(2.)  In  this  section  the  term  "  sheriff  "  includes  any  officer  charged  with  the  enforce- 
ment of  a  writ  of  execution. 

(3.)   The  provisions  of  this  section  do  not  apply  to  Scotland. 


PART   III. 

PERFORMANCE    OF    THE    CONTRACT. 

27.    It  is  the  duty  of  the  seller  to  deliver  the  goods,  and  <>f  the  buyer  to  accept  and 
pay  for  them,  in  accordance  with  the  terms  of  the  contract  of  sale. 

28    Unless  otherwise  agreed,  delivery  of  the  goods  and  payment  of  the  price  are 
concurrent  conditions,  that  is  to  say,  the  seller  must  be  ready  and  willing  to  give' 


APPENDIX.  1013 

possession  of  the  goods  to  the  buyer  in  exchange  for  the  price,  and  the  bnyer  mi 
ready  and  willing  to  pay  the  price  in  exchange  for  possession  ol  the  gooda. 

29  —  (1.)  Whether  it  is  for  the  buyer  to  take  possession  of  the  goods  or  for  the 
seller  to  send  them  to  the  buyer  is  a  question  depending  in  each  ra.se  on  the  contract, 
express  or  implied,  between  the  parlies.  Apart  from  any  such  contract,  expres 
implied,  the  place  of  delivery  is  the  seller's  place  of  business,  if  he  have  one,  and  if 
uot,  his  residence;  Provided  that,  if  the  contract  be  for  the  sale  of  specific 
which  to  the  knowJedge  of  the  parties  when  the  contract  is  made  are  in  some  other 
place,  then  that  place  is  the  place  of  delivery. 

(2.)  Where  under  the  contract  of  sale  the  seller  is  bound  to  seud  the  goods  to  the 
buyer,  hut  no  time  for  sending  them  is  fixed,  the  seller  is  bound  to  .-end  them  within 
a  reasonable  time. 

(3.)    Where  the  goods  at  the  time  of  sale  are  in  the  possession  of  a  third   person, 
there  is  no  delivery  by  seller  to  buyer  uuless  aud  until  such  third  person  acknowli 
to  the  buyer  that  he  holds  the  goods  ou  his  behalf;   provided  that  nothing  in  this  si 
tion  shall  affect  the  operation  of  the  issue  or  transfer  of   auy  document  of  title   to 
goods. 

(4.)  Demand  or  tender  of  delivery  may  be  treated  as  ineffectual  unless  made  at  a 
reasonable  hour.     What  is  a  reasonable  hour  is  a  question  of  fact. 

(5.)  Unless  otherwise  agreed,  the  expenses  of  and  incidental  to  putting  the  goods 
into  a  deliverable  state  must  be  borne  by  the  seller. 

30.  —  (1.)  Where  the  seller  delivers  to  the  buyer  a  quantity  of  goods  less  than  he 
contracted  to  sell,  the  buyer  may  reject  them,  but  if  the  buyer  accepts  the  goods  so 
delivered  he  must  pay  for  them  at  the  contract  rate. 

(2.)  Where  the  seller  delivers  to  the  buyer  a  quantity  of  goods  larger  than  he  con- 
tracted to  sell,  the  buyer  may  accept  the  goods  included  in  the  contract  and  reject  the 
rest,  or  he  may  reject  the  whole  If  the  buyer  accepts  the  whole  of  the  goods  so  de- 
livered he  must  pay  for  them  at  the  contract  rate. 

(3.)  Where  the  seller  delivers  to  the  buyer  the  goods  he  contracted  to  sell  mixed 
with  goods  of  a  different  description  not  included  in  the  contract,  the  bnver  may 
accept  the  goods  which  are  in  accordance  with  the  contract  and  reject  the  rest,  or  he 
may  reject  the  whole. 

(4.)  The  provisions  of  this  section  are  subject  to  any  usage  of  trade,  special  agree- 
ment, or  course  of  dealing  between  the  parties. 

31.  —  (1.)  Unless  otherwise  agreed,  the  buyer  of  goods  is  not  bound  to  accept  de- 
livery thereof  by  instalments. 

(2.)  Where  there  is  a  contract  for  the  sale  of  goods  to  he  delivered  by  stated 
instalments,  which  are  to  be  separately  paid  for,  and  the  seller  makes  defective  de- 
liveries in  respect  of  one  or  more  instalments,  or  the  buyer  neglects  or  refuses  to  take 
delivery  of  or  pay  for  one  or  more  instalments,  it  is  a  question  in  each  case  depending 
on  the  terms  of  the  contract  and  the  circumstances  of  the  case,  whether  the  breach  of 
contract  is  a  repudiation  of  the  whole  contract  or  whether  it  is  a  severable  breai  , 
giving  rise  to  a  claim  for  compensation  but  not  to  a  right  to  treat  the  whole  con;. 
as  repudiated. 

32 .  —  (1.)    Where,  in  pursuance  of  a  contract  of  sale,  the  seller  is  authorised   or 
required  to  send  the  goods  to  the  buyer,  delivery  of  the  goods  to  a  carrier,  whether 
named  by  the  buyer  or  not,  for  the  purpose  of  transmission  to  the  buyer  is  prima  ■ 
deemed  to  be  a  delivery  of  the  goods  to  the  buyer. 

(2  )    Unless  otherwise  authorised  by  the  buyer,  the  seller  must  make  such  coutr.i  I 
with  the  carrier  on  behalf  of  the  buyer  as  may  be   reasonable   having  regard  to 
nature  of  the  goods  and  the  other  circumstances  of  the  case.     If  the  seller  omit  & 
do,  and  the  goods  are  lost  or  damaged  in  course  of  transit,  the  buyer  may  declim 
treat  the  delivery  to  the  carrier  as  a  delivery  to  himself,  or  may  hold  the  seller  respon 
sible  in  damages. 


1014  APPENDIX. 

(3.)  Unless  otherwise  agreed,  where  goods  are  sent  by  the  seller  to  the  buyer  by  a 
route  involving  sea  transit,  under  circumstances  in  which  it  is  usual  to  insure,  the 
seller  must  give  such  notice  to  the  buyer  as  may  euable  him  to  insure  them  during 
their  sea  transit,  and,  if  the  seller  fails  to  do  so,  the  goods  shall  be  deemed  to  be  at 
his  risk  during  such  sea  transit. 

33.  "Where  the  seller  of  goods  agrees  to  deliver  them  at  his  own  risk  at  a  place 
other  than  that  where  they  are  when  sold,  the  buyer  must,  nevertheless,  unless  other- 
wise agreed,  take  any  risk  of  deterioration  iu  the  goods  necessarily  incident  to  the 
course  of  transit. 

34. —  (1.)  Where  goods  are  delivered  to  the  buyer,  which  he  has  not  previously 
examined,  he  is  nut  deemed  to  have  accepted  them  unless  and  until  he  has  had  a 
reasonable  opportunity  of  examining  them  for  the  purpose  of  ascertaining  whether 
they  are  in  conformity  with  the  contract. 

(2.)  Unless  otherwise  agreed,  when  the  seller  tenders  delivery  of  goods  to  the 
buyer,  he  is  bound,  on  request,  to  afford  the  buyer  a  reasonable  opportunity  of  exam- 
ining the  goods  for  the  purpose  of  ascertaining  whether  they  are  in  conformity  with 
the  contract. 

35  The  buyer  is  deemed  to  have  accepted  the  goods  when  he  intimates  to  the 
seller  that  he  has  accepted  them,  or  when  the  goods  have  been  delivered  to  him,  and 
he  does  auy  act  in  relation  to  them  which  is  inconsistent  with  the  ownership  of  the 
seller,  or  when  after  the  lapse  of  a  reasonable  time,  he  retains  the  goods  without  inti- 
mating to  the  seller  that  he  has  rejected  them. 

36  Unless  otherwise  agreed,  where  goods  are  delivered  to  the  buyer,  and  he  re- 
fuses to  accept  them,  having  the  right  so  to  do,  he  is  not  bound  to  return  them  to  the 
seller,  but  it  is  sufficient  if  he  intimates  to  the  seller  that  he  refuses  to  accept  them. 

37.  When  the  seller  is  ready  and  willing  to  deliver  the  goods,  and  requests  the 
buver  to  take  delivery,  and  the  buyer  does  not  within  a  reasonable  time  after  such 
request  take  delivery  of  the  goods,  he  is  liable  to  the  seller  for  any  loss  occasioned  by 
his  neglect  or  refusal  to  take  delivery,  and  also  for  a  reasonable  charge  for  the  care 
and  custody  of  the  goods  Provided  that  nothing  in  this  section  shall  affect  the 
rights  of  the  seller  where  the  neglect  or  refusal  of  the  buyer  to  take  delivery  amounts 
to  a  repudiatiou  of  the  contract. 


PART   IV. 

RIGHTS   OF   UNPAID  SELLER   AGAINST  THE   GOODS. 

38  —  (l.)  The  seller  of  goods  is  deemed  to  be  an  "  unpaid  seller  "  within  the  mean- 
ing of  this  Act  — 

{n  )    When  the  whole  of  the  price  has  not  been  paid  or  tendered ; 

(//.)  When  a  bill  of  exchange  or  other  negotiable  instrument  has  been  received  as 
conditional  payment,  and  the  condition  on  which  it  was  received  has  not  beeu 
fulfilled  by  reason  of  the  dishonor  of  the  instrument  or  otherwise. 

(2.)  In  this  part  of  this  Act  the  term  "  seller"  includes  any  person  who  is  in  the 
position  of  m  seller,  as,  for  instance,  an  agent  of  the  seller  to  whom  the  bill  o|  lading 
has  been  indorsed,  or  a  consignor  or  agent  who  has  himself  paid,  or  is  directly  respon- 
sible for,  the  price. 

39.  —  (1.)  Subject  to  the  provisions  of  this  Act,  and  of  any  statute  in  that  behalf, 
notwithstanding  that  the  property  in  the  goods  may  have  passed  to  the  buyer,  the 
unpaid  seller  of  goods,  as  such,  has   by  implication  of  law  — 


APPENDIX.  1015 

(a.)    A  lien  on  the  goods  or  right  to  retain  them  for  the  price  while  he  is  in  posses- 
sion of  them  ; 
(b.)    In  case  of  the  insolvency  of  the  buyer,  a  right  of  stopping  the  goods  in  transitu 

after  lie  has  parted  with  the  possession  of  them; 
(c.)    A  right  of  re-sale  as  limited  by  this  Act. 

(2.)  Where  the  property  in  goods  has  not  passed  to  the  buyer,  the  unpaid  seller 
has,  in  addition  to  his  other  remedies,  a  right  of  withholding  delivery  similar  to  and 
co-extensive  with  his  rights  of  lieu  and  stoppage  in  transitu  where  the  property  has 
passed  to  the  buyer. 

40.  In  Scotland  a  seller  of  goods  may  attach  the  same  while  in  his  own  hands  or 
possession  by  arrestment  or  poinding;  and  such  arrestment  or  poinding  shall  have 
the  same  operation  and  effect  iu  a  competition  or  otherwise  as  an  arrestment  or 
poinding  by  a  third  party. 

Unpaid  Seller's  Lien. 

41.  —  (1.)  Subject  to  the  provisions  of  this  Act,  the  unpaid  seller  of  goods  who  is 
in  possession  of  them  is  entitled  to  retain  possession  of  them  until  payment  or  tender 
of  the  price  in  the  following  cases,  namely  :  — 

(a.)    Where  the  goods  have  been  sold  without  any  stipulation  as  to  credit , 
(b.)    Where  the  goods  have  been  sold  on  credit,  but  the  term  of  credit  has  expired ; 
(c.)    Where  the  buyer  becomes  insolvent. 

(2.)  The  seller  may  exercise  his  right  of  lien  notwithstanding  that  he  is  in  posses- 
sion of  the  goods  as  agent  or  bailee  or  custodier  for  the  buyer. 

42.  Where  an  unpaid  seller  has  made  part  delivery  of  the  goods,  he  may  exercise 
his  right  of  lien  or  retention  on  the  remainder,  unless  such  part  delivery  has  been 
made  under  such  circumstances  as  to  show  an  agreement  to  waive  the  lien  or  right  of 
retention. 

43.  —  (1 .)    The  unpaid  seller  of  goods  loses  his  lien  or  right  of  retention  thereon  — 
(a.)    When  he  delivers  the  goods  to  a  carrier  or  other  bailee  or  custodier  for  the 

purpose  of  transmission  to  the  buyer  without  reserving  the  right  of  disposal  of 
the  goods ; 
(b.)    When  the  buyer  or  his  agent  lawfully  obtains  possession  of  the  goods  ; 
(c.)    By  waiver  thereof. 

(2.)  The  unpaid  seller  of  goods,  having  a  lien  or  right  of  retention  thereon,  does 
not  lose  his  lien  or  right  of  retention  by  reason  only  that  he  has  obtained  judgment  or 
decree  for  the  price  of  the  goods. 

Stoppage  in  Transitu. 

44.  Subject  to  the  provisions  of  this  Act,  when  the  buyer  of  goods  becomes  insol- 
vent, the  unpaid  seller  who  has  parted  with  the  possession  of  the  goods  has  the  right 
of  stopping  them  in  transitu,  that  is  to  say,  he  may  resume  possession  of  the  goods  as 
long  as  they  are  in  course  of  transit,  and  may  retain  them  until  payment  or  tender  of 
the  price. 

45.  —  (1.)  Goods  are  deemed  to  be  in  course  of  transit  from  the  time  when  they 
are  delivered  to  a  carrier  by  land  or  water,  or  other  bailee  or  custodier  for  the  pur- 
pose  of  transmission  to  the  buyer,  until  the  buyer,  or  his  agent  in  that  behalf,  takes 
delivery  of  them  from  such  carrier  or  other  bailee  or  custodier. 

(2.)  [f  the  buyer  or  his  agent  in  that  behalf  obtains  delivery  of  the  goods  before 
their  arrival  at  the  appointed  destination,  the  transit  is  at  an  end. 

(3.)  If,  after  the  arrival  of  the  goods  at  the  appointed  destination,  the  carrier  or 
other  bailee  or  custodier  acknowledges  to  the  buyer,  or  his  agent,  that  he  holds  the 
goods  '>n  his  behalf  and  continues  in  possession  of  them  as  bailee  or  custodier  for  the 
buyer,  or  his  agent,  the  transit  is  at  an  end.  and  it  is  immaterial  that  a  further  de>ti- 
nation  for  the  goods  may  have  been  indicated  by  the  buyer. 


1016  APPENDIX. 

(4.)  If  the  goods  are  rejected  by  the  buyer,  and  the  carrier  or  other  bailee  or  cus- 
todier continues  in  possession  of  them,  the  transit  is  not  deemed  to  be  at  an  end  even 
if  the  seller  lias  refused  to  receive  them  back. 

(5.)  When  goods  are  delivered  to  a  ship  chartered  by  the  buyer  it  is  a  question 
depending  on  the  circumstances  of  the  particular  case,  whether  they  are  in  the  posses- 
sion of  the  master  as  a  carrier,  or  as  agent  to  the  buyer. 

(6.)  Where  the  carrier  or  other  bailee  or  custodier  wrongfully  refuses  to  deliver 
the  goods  to  the  buyer,  or  his  agent  in  that  behalf,  the  transit  is  deemed  to  be  at 
an  end. 

(7.)  Where  part  delivery  of  the  goods  has  been  made  to  the  buyer,  or  his  agent  in 
that  behalf,  the  remainder  of  the  goods  may  be  stopped  in  transitu,  unless  such  part 
delivery  has  been  made  under  such  circumstances  as  to  show  an  agreement  to  give  up 
possession  of  the  whole  of  the  goods. 

46.  —  (1.)  The  unpaid  seller  may  exercise  his  right  of  stoppage  in  transitu  either 
by  taking  actual  possession  of  the  goods,  or  by  giving  notice  of  his  claim  to  the  carrier 
or  other  bailee  or  custodier  in  whose  possession  the  goods  are.  Such  notice  may  be 
given  either  to  the  person  in  actual  possession  of  the  floods  or  to  his  principal.  In  the 
latter  case  the  notice,  to  be  effectual,  must  be  given  at  such  time  and  under  such  cir- 
cumstances that  the  principal,  by  the  exercise  of  reasonable  diligence,  may  communi- 
cate it  to  his  servant  or  agent  in  time  to  prevent  a  delivery  to  the  buyer. 

(2.)  When  notice  of  stoppage  in  transitu  is  given  by  the  seller  to  the  carrier,  or 
other  bailee  or  custodier  in  possession  of  the  goods,  lie  must  redeliver  the  goods  to, 
or  according  to  the  directions  of,  the  seller.  The  expenses  of  such  redelivery  must 
be  borne  by  the  seller. 

Re-sale  by  Buyer  or  Seller. 

47.  Subject  to  the  provisions  of  this  Act,  the  unpaid  seller's  right  of  lien  or  reten- 
tion or  stoppage  in  transitu  is  not  affected  by  any  sale,  or  other  disposition  of  the 
goods  which  the  buyer  may  have  made,  unless  the  seller  has  assented  thereto. 

Provided  that  where  a  document  of  title  to  goods  has  been  lawfully  transferred  to 
any  person  as  buyer  or  owner  of  the  goods,  and  that  person  transfers  the  document  to 
a  person  who  takes  the  document  in  good  faith  and  for  valuable  consideration,  then, 
if  such  last-mentioned  transfer  was  by  way  of  sale  the  unpaid  seller's  right  of  lien  or 
retention  or  stoppage  in  transitu  is  defeated,  and  if  such  last-mentioned  transfer  was 
by  way  of  pledge  or  other  disposition  for  value,  the  unpaid  seller's  right  of  lien  or 
retention  or  stoppage  in  transitu  can  only  be  exercised  subject  to  the  rights  of  the 
transferee. 

48. —  (1.)  Subject  to  the  provisions  of  this  section,  a  contract  of  sale  is  not  re- 
scinded by  the  mere  exercise  by  an  unpaid  seller  of  his  right  of  lien  or  retention  or 
stoppage  hi  transitu. 

(2.)  Where  an  unpaid  seller  who  has  exercised  his  right  of  lien  or  retention  or 
stoppage  in  transitu  resells  the  goods,  the  buyer  acquires  a  good  title  thereto  as 
against  the  original  buyer. 

(.'5.)  Where  the  goods  are  of  a  perishable  nature,  or  where  the  unpaid  seller  gives 
notice  to  the  buyer  of  his  intention  to  resell,  and  the  buyer  does  not  within  a  reason- 
able time  pay  or  tender  the  price,  the  unpaid  seller  may  resell  the  goods  and  recover 
from  the  original  buyer  damages  for  any  loss  occasioned  by  his  breach  of  contract. 

(4.)  Where  the  seller  expressly  reserves  a  right  of  resale  in  case  the  buyer  should 
make  default,  and  on  the  buyer  making  default,  resells  the  goods,  the  original  con- 
tract of  sale  is  thereby  rescinded,  but  without  prejudice  to  any  claim,  the  seller  may 
have  for  damages. 


APPENDIX.  1017 

PART  y. 

ACTIONS   FOR   BREACH    OF   THE    CONTRACT. 
Remedies  of  the  Seller. 

49.  —  (1.)    Where,  under  a  contract  of  sale,  the  property  in  the  goods  has  passed 
to  the  buyer,  and  the  Inner  wrongfully    neglects  or   refuses  to  pay  for  the  g 
according  to  the  terms  of  the  contract,  the  seller  may  maintain  an  action  against  him 
for  the  price  of  the  goods. 

(2.)  Where,  under  a  contract  of  sale,  the  price  is  payable  on  a  dav  certain  irrespec- 
tive of  delivery,  and  the  buyer  wrongfully  neglects  or  refuses  to  pay  such  price,  the 
seller  may  maintain  an  action  for  the  price,  although  the  property  in  the  goods  has 
not  passed,  and  the  goods  have  not  been  appropriated  to  the  contract. 

(3.)  Nothing  in  this  section  shall  prejudice  the  right  of  the  seller  in  Scotland  to 
recover  interest  on  the  price  from  the  date  of  tender  of  the  goods,  or  from  the  date 
on  which  the  price  was  payable,  as  the  case  may  be. 

50.  —  ( 1 . )  Where  the  buyer  wrongfully  neglects  or  refuses  to  accept  and  pay  for 
the  goods,  the  seller  may  maintain  an  action  against  him  for  damages  for  non- 
acceptance. 

(2.)  The  measure  of  damages  is  the  estimated  loss  directly  and  naturally  resulting, 
in  the  ordinary  course  of  events,  from  the  buyer's  breach  of  contract. 

(3.)  Where  there  is  an  available  market  for  the  goods  in  question  the  measure  of 
damages  is  prima  facie  to  be  ascertained  by  the  difference  between  the  contract  price 
and  the  market  or  current  price  at  the  time  or  times  when  the  goods  ought  to  have 
been  accepted,  or,  if  no  time  was  fixed  for  acceptance,  then  at  the  time  of  the  refusal 
to  accept. 

Remedies  oe  the  Biter. 

51.  — (1.)  Where  the  seller  wrongfully  neglects  or  refuses  to  deliver  the  goods  to 
the  buyer,  the  buyer  may  maintain  an  action  against  the  seller  for  damages  for 
non-delivery. 

(2.)  The  measure  of  damages  is  the  estimated  loss  directly  and  naturally  resulting, 
in  the  ordinary  course  of  events,  from  the  seller's  breach  of  contract. 

(3.)  Where  there  is  an  available  market  for  the  goods  in  question  the  measure  of 
damages  is  prima  facie  to  be  ascertained  by  the  difference  between  the  contract  price 
and  the  market  or  current  price  of  the  goods  at  the  time  or  times  when  they  ought  to 
have  been  delivered,  or,  if  no  time  was  fixed,  then  at  the  time  of  the  refusal  "to  deliver. 

52.  In  any  action  for  breach  of  contract  to  deliver  specific  or  ascertained  goods  the 
court  may,  if  it  thinks  fit,  ou  the  application  of  the  plaintiff,  by  its  judgment  or  decree 
direct  that  the  contract  shall  be  performed  specifically,  without  giving  the  defendant 
the  option  of  retaining  the  goods  on  payment  of  damages.  The  judgment  or  decree 
may  be  unconditional,  or  upon  such  terms  and  conditions  as  to  damages,  payment  of 
the  price,  and  otherwise,  as  to  the  court  may  seem  just,  and  the  application  by  the 
plaintiff  may  be  made  at  any  time  before  judgment  or  decree. 

The  provisions  of  this  section  shall  be  deemed  to  be  supplementary  to,  and  not  in 
derogation  of,  the  right  of  specific  implement  in  Scotland. 

53.  —  ( 1 . )  Where  there  is  a  breach  of  warranty  by  the  seller,  or  where  the  buver 
elects,  or  is  compelled,  to  treat  any  breach  of  a  condition  on  the  part  of  the  seller  as  a 
breach  of  warranty,  the  buyer  is  not  by  reason  only  of  such  breach  of  warrantv  en- 
titled to  reject  the  goods ;  but  he  may 

(a)    set  up  against  the  seller  the  breach  of  warranty  in  diminution  or  extinction  of 
the  price ;  or 


1018  APPENDIX. 

(l>)    maintain  an  action  against  the  seller  for  damages  for  the  breach  of  warranty. 

(2.)  The  measure  of  damages  for  breach  of  warranty  is  the  estimated  loss  directly 
and  naturally  resulting,  in  the  ordinary  course  of  events,  from  the  breach  of  warranty. 

(3.)  In  the  case  of  breach  of  warranty  of  quality  such  loss  is  prima  facie  the  differ- 
ence between  the  value  of  the  goods  at  the  time  of  delivery  to  the  buyer  and  the  value 
they  would  have  had  if  they  had  answered  to  the  warranty. 

(4.)  The  fact  that  the  buyer  has  set  up  the  breach  of  warranty  in  diminution  or 
extinction  of  the  price  does  not  prevent  him  from  maintaining  an  action  for  the  same 
breach  of  warranty  if  he  has  suffered  further  damage. 

(5.)  Nothing  in  this  section  shall  prejudice  or  affect  the  buyer's  right  of  rejection  in 
Scotland  as  declared  by  this  Act. 

54.  Nothing  in  this  Act  shall  affect  the  right  of  the  buyer  or  the  seller  to  recover 
interest  or  special  damages  in  any  case  where  by  law  interest  or  special  damages  may 
be  recoverable,  or  to  recover  money  paid  where  the  consideration  for  the  payment  of 
it  has  failed. 


PAKT  VI. 

SUPPLEMENTARY. 

55.  "Where  any  right,  duty,  or  liability  would  arise  under  a  contract  of  sale  by 
implication  of  law,  it  may  be  negatived  or  varied  by  express  agreement  or  by  the 
course  of  dealing  between  the  parties,  or  by  usage,  if  the  usage  be  such  as  to  bind 
both  parties  to  the  contract. 

56.  Where,  by  this  Act,  any  reference  is  made  to  a  reasonable  time  the  question 
what  is  a  reasonable  time  is  a  question  of  fact. 

57.  Where  any  right,  duty,  or  liability  is  declared  by  this  Act,  it  may,  unless  other- 
wise by  this  Act  provided,  be  enforced  by  action. 

58.  In  the  case  of  a  sale  by  auction  — 

(I.)  Where  goods  are  put  up  for  sale  by  auction  in  lots,  each  lot  is  prima  facie 
deemed  to  be  the  subject  of  a  separate  contract  of  sale  : 

(2.)  A  sale  by  auction  is  complete  when  the  auctioneer  announces  its  completion  by 
the  fall  of  the  hammer,  or  in  other  customary  manner.  Until  such  announce- 
ment is  made  any  bidder  may  retract  his  bid  : 

(3.)  Where  a  sale  by  auction  is  not  notified  to  be  subject  to  a  right  to  bid  on  be- 
half of  the  seller,  it  shall  not  be  lawful  for  the  seller  to  bid  himself  or  to  employ 
any  person  to  bid  at  such  sale,  or  for  the  auctioneer  knowingly  to  take  any  bid 
from  the  seller  or  any  such  person  :  Any  sale  contravening  this  rule  may  be 
treated  as  fraudulent  by  the  buyer : 

(4).  A  sale  by  auction  may  be  notified  to  be  subject  to  a  reserved  or  upset  price, 
and  a  right  to  bid  may  also  be  reserved  expressly  by  or  on  behalf  of  the  seller 

Where  a  rifjht  to  bid  is  expressly  reserved,  but  not  otherwise,  the  seller,  or  any  one 
person  on  his  behalf,  may  bid  at  the  auction. 

59.  In  Scotland  where  a  buyer  has  elected  to  accept  goods  which  he  might  have 
rejected,  and  to  treat  a  breach  of  contract  as  only  giving  rise  to  a  claim  for  damages, 
he  may,  in  an  action  by  the  seller  for  the  price,  be  required,  in  the  discretion  of  the 
court  before  which  the  action  depends,  to  consign  or  pay  into  court  the  price  of  the 
goods,  or  part  thereof,  or  to  give  other  reasonable  security  for  the  due  payment 
thereof. 

60.  The  enactments  mentioned  in  the  schedule  to  this  Act  are  hereby  repealed  as 
from  the  commencement  of  tins  Act  to  the  extent  in  that  schedule  mentioned. 


APPENDIX.  1019 

Provided  that  such  repeal  shall  not  affect  anything  done  or  Buffered,  or  anv  right, 
title,  or  interest  acquired  or  accrued  before  the  commencement  of  this  Act,  or  any 
legal  proceeding  or  remedy  in  respect  of  any  such  thing,  right,  title,  or  interest. 

61. —  (1.)  The  rules  in  bankruptcy  relating  to  contracts  of  sale  shall  continue  to 
apply  thereto,  notwithstanding  anything  in  this  Act  contained. 

(2.)  The  rules  of  the  common  law,  including  the  law  merchant,  save  in  so  far  as 
they  are  inconsistent  with  the  express  provisions  of  this  Act,  and  in  particular  the 
rules  relating  to  the  law  of  principal  and  agent  and  the  effect  of  fraud,  misrepresenta- 
tion, duress  or  coercion,  mistake,  or  other  invalidating  cause,  shall  continue  to  apply 
to  contracts  for  the  sale  of  goods. 

(3.)  Nothing  in  this  Act  or  in  any  repeal  effected  thereby  shall  affect  the  enact- 
ments relating  to  hills  of  sale,  or  any  enactment  relating  to  the  sale  of  goods  which  is 
not  expressly  repealed  by  this  Act. 

(4.)  The  provisions  of  this  Act  relating  to  contracts  of  sale  do  not  apply  to  any 
transaction  in  the  form  of  a  contract  of  sale  which  is  intended  to  operate  by  way  of 
mortgage,  pledge,  charge,  or  other  security. 

(5.)  Nothing  in  this  Act  shall  prejudice  or  affect  the  landlord's  right  of  hypothec 
or  sequestration  for  rent  in  Scotland. 

62.  —  (1.)    In  this  Act,  unless  the  context  or  subject  matter  otherwise  requires,  — 

"  Action  "  includes  counterclaim  and  set  off,  and  in  Scotland  condescendence  and 
claim  and  compensation: 

"  Bailee  "  in  Scotland  includes  custodier  : 

"  Buyer  "  means  a  person  who  buys  or  agrees  to  buy  goods  : 

"  Contract  of  sale  "  includes  an  agreement  to  sell  as  well  as  a  sale  : 

"Defendant"  includes  in  Scotland  defender,  respondent,  and  claimant  in  a  multiple- 
poinding : 

V  Delivery  "  means  voluntary  transfer  of  possession  from  one  person  to  another : 

"  Document  of  title  to  goods  "  has  the  same  meaning  as  it  has  in  the  Factors  Acts : 

"  Factors  Acts"  means  the  Factors  Act,  1889,  the  Factors  (Scotland)  Act,  1890,  and 
any  enactment  amending  or  substituted  for  the  same  : 

"Fault"  means  wrongful  act  or  default- 

"  Future  goods  "  means  goods  to  be  manufactured  or  acquired  by  the  seller  after 
the  making  of  the  contract  of  sale  : 

"  Goods  "  include  all  chattels  personal  other  than  things  in  action  and  money,  and 
in  Scotland  all  corporeal  movables  except  money.  The  term  includes  emble- 
ments, industrial  growing  crops,  and  things  attached  to  or  forming  part  of  the 
land  which  are  agreed  to  be  severed  before  sale  or  under  the  contract  of  sale : 

"Lien  "  in  Scotland  includes  right  of  retention  : 

"  Plaintiff  "  includes  pursuer,  complainer,  claimant  in  a  multiplepoinding  and  de- 
fendant or  defender  counterclaiming : 

"Property"  means  the  general  property  in  goods,  and  not  merely  a  special 
property : 

"  Quality  of  goods  "  includes  their  state  or  condition  : 

"  Sale  "  includes  a  bargain  and  sale  as  well  as  a  sale  and  delivery  : 

"  Seller  "  means  a  person  who  sells  or  agrees  to  sell  goods  : 

"  Specific  goods  "  mean  goods  identified  and  agreed  upon  at  the  time  a  contract  of 
sale  is  made . 

"  Warranty  "  as  regards  England  and  Ireland  means  an  agreement  with  reference 
to  goods  which  are  the  subject  of  a  contract  of  sale,  but  collateral  to  the  main 
purpose  of  such  contract,  the  breach  of  which  gives  rise  to  a  claim  for  damages, 
hut  not  to  a  right  to  reject  the  goods  and  treat  the  contract  as  repudiated. 

As  regards  Scotland  a  breach  of  warranty  shall  he  deemed  to  be  a  failure  to  per- 
form a  material  part  of  the  contract. 

(2.)    A  tiling  is  deemed  to  he  done  "in  good  faith  "  within  the  meaning  of  this  Act 
when  it  is  in  fact  done  honestly,  whether  it  he  done  negligently  or  not. 

(3.)   A  person  is  deemed  to  be  insolvent  within  the  meaning  of  this  Act  who  either 


1020  APPENDIX. 

has  ceased  to  pay  his  debts  in  the  ordinary  course  of  business,  or  cannot  pa}'  his  debts 
as  they  become  due,  whether  he  has  committed  an  act  of  bankruptcy  or  not,  and 
whether  he  has   become  a  notour  bankrupt  or  not. 

(4.)  Goods  are  in  a  "deliverable  state"  within  the  meaning  of  this  Act  when  they 
are  in  such  a  state  that  the  buyer  would  under  the  contract  be  bound  to  take  delivery 
of  them. 

63.  This  Act  shall  come  into  operation  on  the  first  day  of  January  one  thousand 
eight  hundred  and  ninety-four. 

64.  This  Act  may  be  cited  as  the  Sale  of  Goods  Act,  1893. 


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tM  II 

H  HF 
B  HHHH 


111111 


